The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill) was introduced into Federal Parliament on 15 February 2017.

Commonwealth Attorney General George Brandis introduced the Bill to amend the Native Title Act 1993 (Cth) (NTA) in order to urgently resolve the uncertainty created by the decision of the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade) regarding the registration of the most common type of Indigenous Land Use Agreement (Area ILUAs) - read our update on the McGlade decision here.

At the time of publication, the Bill has passed the House of Representatives and has been referred to the Senate Legal and Constitutional Affairs Legislation Committee to provide a report on the Bill by 17 March 2017. We understand that the National Native Title Tribunal will be contacting parties that may be affected by the McGlade decision.

Key points:

  • Registration of Area ILUAs under the NTA that have not been executed by all members of the native title applicant (where applicable) remains on hold pending the amendments being passed into law.
  • Should the Bill be passed, any Area ILUAs that may otherwise have been invalid because of the decision in McGlade will be retrospectively validated – this will provide certainty in cases where interests have been granted and benefits already paid.
  • The Bill also provides for Areas ILUAs to be validly registered even where all members of the applicant of a native title claim group do not sign the document.
  • The Bill provides that native title claim groups can determine their own process for decision making about who should be a party to an Area ILUA and the default position is that the claim group can authorise entry into the Area ILUA by a majority.
  • The Bill also provides for compensation to be paid by the Commonwealth to any person if the Bill results in the acquisition of the person’s property by the Commonwealth otherwise than on just terms, and for the Minister to make regulations as necessary.

Validation

The Registrar of the National Native Title Tribunal issued a statement on 10 February declaring a moratorium on the registration of all pending Area ILUAs that may be affected by the McGlade decision.

The Bill purports to validate all Area ILUAs agreed or registered on or before 2 February 2017 (the date of the McGlade decision) (Item 9). If passed, it will also validate Area ILUA applications for registration made on or before 2 February 2017 that would otherwise be invalid because they did not meet the requirements of an Area ILUA (Item 10). Item 11 purports to validate other applications for registration of Area ILUAs made on or before 2 February 2017, that would otherwise not be valid for another reason “prescribed by the rules.” This Item provides some flexibility for Parliament to deal with any other issues with pending applications for registration of an Area ILUA.

Rather than retrospectively validating the four Area ILUAs that were the subject of the McGlade decision (the Wagyl Kaip Southern Noongar ILUA, Ballardong People ILUA, South West Boojarah #2 ILUA and the Whadjuk People ILUA), Item 9(4) provides that these Area ILUAs will be validated from the commencement of the Bill as an Act. This provision provides much needed certainty for the South West Settlement.

Decision-Making Processes for Authorisation

Section 24CD(1) of the NTA requires that all persons in the “native title group” must be parties to an Area ILUA. The Bill amends subsection 24CD(2)(a) of the NTA to provide that where there is a registered native title claimant, “native title group” means either:

  • the persons authorised under the new section 251A(2); or
  • a majority of the persons who comprise the registered native title claimant (Item 1).

The new subsection 251A(2) provides that a native title claim group can authorise the making of an Area ILUA in either or both of the following ways:

  • nominating the person(s) from the registered native title claimant who should be a party to the Area ILUA; or
  • specifying a process for determining who the persons nominated to be a party to the Area ILUA should be (Item 5).

The Explanatory Memorandum (EM) for the Bill states that these amendments are consistent with Recommendation 10-2 of the Australian Law Reform Commission’s Connection to Country: Review of the Native Title Act 1993 (tabled 4 June 2015) and endorsed by the Investigation into Indigenous Land Administration and Use report by the Council of Australian Governments dated December 2015. The EM states that these amendments empower native title claim groups and promote self-determination.

Compensation

The Bill provides that the Commonwealth must pay compensation to any person if the Bill has the result that the person’s property is acquired by the Commonwealth otherwise than on just terms.

Proponents that have had rights granted pursuant to an Area ILUA that was not signed by all members of a native title applicant are unlikely to be at risk of any compensation claims from members of the native title claim group. This compensation provision provides a mechanism for members of native title claim groups who did not agree with an Area ILUA to be compensated where the Commonwealth has acquired a person’s right to apply for a review of the decision to register an Area ILUA that was deemed to be valid. There is no suggestion in the Bill that the Commonwealth will seek to pass this compensation obligation on to proponents that have conducted future acts in reliance on otherwise invalid Area ILUAs.