Implications of McGlade decision to be addressed by legislation

We recently provided a legal update regarding the Full Federal Court decision of McGlade v Native Title Registrar [2017] FCAFC 10. By way of update, legislation addressing certain aspects of the decision has been introduced into Federal Parliament.

The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 passed the House of Representatives on 16 February 2017 and is currently before the Senate. Following its introduction to the Senate, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee provided its report on the Bill on 20 March 2017. It is not known when the Bill will be debated before the Senate although this is expected to occur within the current sitting period.

If passed in its current form, the Bill would validate any agreement made on or before 2 February 2017, which was not an area ILUA only because not all members of the registered native title claimant or registered native title claimants for the agreement area were parties to the agreement, provided at least one member of the relevant registered native title claimant/s was a party to the agreement.  This aspect of the Bill is supported by the Committee.

Also, if passed in its current form, the Bill would amend the Native Title Act (the NTA):

• to enable a native title claim group to nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to an area ILUA, or, to specify a process for determining this;
• to provide that an area ILUA may be signed by only the person or persons nominated or determined, or, if this has not occurred, by a majority of the persons comprising the registered native title claimant.

These amendments, which would see changes to ss 24CD, 251A and 251B of the NTA in particular, are not supported by the Committee. Instead, the Committee has recommended that these changes be removed from the Bill and dealt with in any later bill involving government proposals arising from the Australian Law Reform Commission Report Connection to Country: Review of the Native Title Act 1993. The Committee also recommended that a catch all validation provision in the Bill be removed for later consideration.

The outcome of the Bill will be the subject of a further 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.}