On 2 February 2017, the Full Federal Court in McGlade v Native Title Registrar  FCAFC 10 ruled that native title agreements cannot be registered unless signed by all persons named as Applicants. This decision seriously undermines the Noongar native title settlement process in Western Australia, hailed to be an example for other regions to follow and the largest settlement of its type to-date. However, the decision is also likely to have far-reaching consequences for other native title agreements throughout Australia.
Broadly, the Native Title Act 1993 (Cth) sets processes for resolving native title matters by agreement. This includes by native title groups ‘authorising’ – or agreeing to – Indigenous Land Use Agreements (commonly referred to as ‘ILUAs’). One of the main purposes of ILUAs is to create certainty, and this is achieved by a registration process. Once ILUAs are registered by the National Native Title Tribunal, they are then binding on all native title claimants and holders including those in the future. In practice, any benefits are usually withheld until the ILUA is registered.
To be registered, an area ILUA must be signed by all parties to the native title claim. Previous case law said that an area ILUA could still be registered even if not all of the persons named as the Applicant signed the agreement. The ‘Applicant’ is the name given to those persons who are ‘authorised’ – or approved – by the wider native title claim group to represent and progress the native title claim. That interpretation allowed for authorised agreements to be finalised and implemented, even if, for example:
Obtaining the signatures of all Applicants was impossible (including if an Applicant had passed away);
Obtaining the signatures of all Applicants was practically too difficult to achieve within a reasonable timeframe (including if an Applicant was unable to be contacted), or;
Obtaining the signatures of all Applicants was not feasible in the circumstances (including if an Applicant was refusing to sign for ulterior purposes that may not have been in the best interests of the wider native title group).
It is widely accepted that the native title group as a whole has the ‘ultimate authority’ of any native title claim. However, this decision shows that there has always been, and continues to be, legal and practical uncertainty between the role and power of the Applicant and the wider native title group.
The Full Federal Court decision was in relation to the South-West Noongar Settlement in Western Australia. The Full Federal Court (North and Barker JJ and in separate reasons Mortimer J), ruled that some of the settlement ILUAs that form part of the Noongar Settlement could not be registered because they were not signed by all of the Applicants.
The decision seriously undermines the progress of the Noongar settlement. It is highly likely that ongoing litigation relating to these ILUAs will significantly delay any implementation of that settlement. The decision may also cause any parties considering a similar regional-type settlement to reconsider the appropriateness of such a settlement.
Of greater concern is the possible consequences this decision may have on other native title agreements, including those Area ILUAs are already purportedly registered.
According to the National Native Title Tribunal, there were 854 registered Area ILUAs in Australia as at 31 December 2016 (see National Native Title Tribunal “Indigenous Land Use Agreements: As at 31 December 2016", available at http://www.nntt.gov.au/Maps/ILUAs_map.pdf accessed on 2 February 2017). For example, of those 854 Area ILUAs, there is likely to have been agreements that were registered in circumstances where not all Applicants signed the ILUA. Indeed, such circumstances are not uncommon. If so, there is legal uncertainty over any such agreements. For example, even if any such agreement is still binding on those who signed the agreement as a matter of contract law, there may be a risk of de-registration, which undermines the longer term native title certainty of the agreement. In addition, there may be a risk that the benefits provided or activities that were consented to – including development activities like mining – were unlawful.
This uncertainty may create risks for any projects and may give rise to additional litigation.
A further concerning consequence is the perception that those persons named as Applicants may ‘veto’ ILUAs, even if they are accepted by the wider native title group.
In other words, there is a legitimate concern that this decision allows a single Applicant to unilaterally decide not to enter an agreement, even if the wider community accept the agreement.
However, there are existing processes to reduce that risk. That process is commonly referred to as ‘a section 66B application’, and is the process in the Native Title Act 1993 (Cth) to remove applicants, including so-called ‘dissident’ applicants who have acted outside their authority by refusing to sign an agreement even if they have been instructed by the wider group to do so. The decision highlighted the significance of these existing processes that remain available to native title groups who may encounter such problems. A natural consequence of this decision, however, will be that there will be an increase in such applications to change and replace the persons comprising the Applicant.
This may, in turn, result in delays to agreement making and could lead to what was previously accepted to be ‘internal’ disputes within native title groups being publicly argued in the Federal Court.
Subject to any application to the High Court for special leave to appeal, or change to the legislation, it is clear that the decision fundamentally changes the previously accepted interpretation of the Native Title Act 1993 (Cth) and the associated practices for signing ILUAs.
Above all, the decision reinforces the complexity of native title.
Any party to a native title matter should always seek advice before entering into an agreement. Any party who is unsure about the possible consequences of this decision on their particular circumstances should similarly seek expert advice to reduce the risks of any adverse impacts to their interests.
For more information, contact MPS Law Principal Solicitor Michael Pagsanjan on (08) 8127 8090 or firstname.lastname@example.org