The bill was introduced to address the decision of the Federal Court in McGlade v Native Title Registrar [2017] FCFCA 10 handed down on 2 February 2017 (see previous alert). This decision created uncertainty around the validity of the registration of Indigenous Land Use Agreements (ILUAs) that had not been signed by all of the registered native title claimants for the relevant native title claim group. That uncertainty raised security of title concerns for grants of mining and other tenure consented to in the ILUAs.

The bill was urgently introduced to cure that security of title problem.

If passed, the effect of the Bill will be to:

  • amend the Native Title Act to provide that any ILUA entered into after the commencement of the Bill must be executed by either:
    • those persons nominated by the native title claim group; or
    • if no persons have been nominated by the native title claim group, by a majority of the persons who comprise the registered native title claimant.
  • validate ILUAs registered before 2 February 2017, being the date of the McGlade Decision, where they would otherwise be invalid due to the fact that not all of the persons comprising the registered native title claimant signed that agreement;
  • validate applications for registration of an ILUA made before 2 February 2017, where they would otherwise be invalid due to the fact that not all of the persons comprising the registered native title claimant signed the agreement; and
  • validate the registration of the indigenous land use agreements that were the subject of the McGlade Decision.

The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 16 February 2017 with that committee due to report on 17 March 2017.

We anticipate that, given the uncertainty arising from the McGlade decision, and the support of all stakeholders for resolving that uncertainty as a matter of urgency, it is likely that a majority of the cross bench in the Senate will support the bill.