Full Court clarifies signing requirements for area ILUAs

On 2 February 2017, the Full Federal Court handed down its decision in McGlade v Native Title Registrar [2017] FCAFC 10. The decision is significant because it represents a change in the understanding of the statutory requirements for executing indigenous land use agreements (area agreements) (‘area ILUA’) under the Native Title Act 1993 (Cth) (‘NTA’).

Background

The proceedings related to the South West Native Title Settlement, under which the State of Western Australia and the Noongar People had negotiated and agreed six area ILUAs providing for full and final settlement of all native title claims in respect of certain land and waters in the south west of Western Australia.

The proceedings involved challenges to the proposed registration of four of those area ILUAs - namely, the Wagyl Kaip and Southern Noongar ILUA, the Ballardong People ILUA, the Whadjuk People ILUA and the South West Boojarah ILUA - primarily on the basis that not all of the members of the relevant registered native title claimants (‘RNTC’) had signed the ILUAs. The ILUAs were authorised in conformity with the statutory process in s 251A of the NTA in circumstances where the relevant claim groups for the ILUAs had passed resolutions authorising (among other things) the making of the ILUAs and acknowledging that it was not necessary for all persons comprising the relevant RNTC to sign them. The ILUAs were lodged for registration absent the signature of one or more of the members of the relevant RNTC. The reasons for this included that the relevant persons had not wanted to be party, had become incapacitated, or had died. It is also relevant that in the case of the Whadjuk People ILUA, one of the members of the relevant RNTC had signed the agreement after it was submitted for registration.

Key issues

The court was asked to decide whether ss 24CA and 24CD of the NTA, and the scheme of the NTA more broadly, requires that an area ILUA be signed by all persons comprising the relevant RNTC, and whether an area ILUA can be registered where one or more of the persons comprising the relevant RNTC has not signed, or agreed to be a party to, the agreement.

Key findings

In summary, the court held:

• by virtue of the text of s 24CD(1) and (2) of the NTA, the various persons who jointly comprise the applicant / RNTC must be parties to an area ILUA, and must indicate their intention to be bound by such an agreement by signing it. If, in relation to a proposed area ILUA, one of the persons who, jointly with others, has been authorised by the claim group as the applicant / RNTC, refuses, fails or neglects, or is unable to sign for whatever reason, then the document will lack the quality of being an agreement recognised as an ILUA for the purposes of the NTA. That is, it is insufficient if only some or even a majority of the persons who comprise the applicant / RNTC sign
• if a claim group is disaffected by the decision of a member of the applicant / RNTC not to sign a proposed area ILUA and the claim group desires to see the area ILUA signed, then it would be necessary for the claim group to remove or replace those who jointly comprise the applicant / RNTC by way of an application made under s 66B of the NTA. An application under s 66B is also required where a member of the applicant / RNTC is incapacitated or has died
• while the authorisation of the claim group as a whole to the making of the agreement is critical, the claim group, outside the operation of s 66B of the NTA, does not exercise any power of direction by which the statutory requirements for area ILUAs can be modified. The claim group’s power to control the constitution of an applicant / RNTC is derived only from its power under s 66B of the NTA to authorise the replacement of the applicant. No such power derives from the ILUA authorisation provisions in s 251A of the NTA
• where one of the persons comprising the applicant / RNTC had not signed the relevant area ILUA at the time the registration application was made, this impediment to registration can be removed if the person subsequently signs it
• none of the agreements were area ILUAs within the meaning of s 24CA of the NTA and the Native Title Registrar had no jurisdiction under Div 3 of Pt 2 of the NTA to register them.

The decision is significant because it overturns the well-known and often applied single judge decision of QGC Pty Limited v Bygrave and Others (No 2) [2010] FCA 1019 (‘Bygrave’). In Bygrave, Reeves J determined that the requirement in s 24CD of the NTA that the ‘native title group’ comprising a RNTC for an area ILUA will be satisfied where the ILUA is authorised and the members of the RNTC are identified as parties. That is, the relevant RNTC needn’t sign an area ILUA in such circumstances.

Some conclusions

Following the decision it is clear that all members of the relevant applicant/RNTC must be parties to, and must sign, an area ILUA. It is also clear that where an area ILUA is authorised but one of more members of the applicant / RNTC refuses or is incapable of signing for any reason, then s 66B of the NTA provides the only means by which the claim group can remove or replace the relevant member or members of the applicant/RNTC.

It has been suggested that the decision raises questions in relation to the status of existing registered area ILUAs and area ILUAs lodged but not yet registered on the strength of the Bygrave decision. In this regard, the Federal Government has introduced legislation which seeks to address the effect of the decision. This scope and content of this legislation will be the subject of a future legal update.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}