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"How invalid?: An update on Native Title Agreements after McGlade"
The recent decision of the Federal Court of Australia in McGlade v Native Title Register  FCA FC10 has cast significant doubt over the registration of certain indigenous land use agreements (ILUAs) and the validity of some grants under the right to negotiate process where the respective agreements have not been signed by all of the registered native title claimants.
By way of recap, the decision in McGlade held that the ILUAs affecting the South West settlement negotiated between the various Noongar claim groups and the State of Western Australia were not capable of being validly registered because they were not signed by each of the relevant native title claimants as some native title claimants objected to the agreement and refused to sign it others had passed away. The Federal Court held that in order for an ILUA to be valid it must be both authorised under section 251B of the Native Title Act 1993 (Cth) (NTA) and signed by every registered native title claimant.
Putting aside the question of weather a claim group can require a registered native title claimant to sign an ILUA authorised by the group, the finding that even a deceased claimant was a bar to registration cast significant doubt over the validity of ILUAs registered since a decision of the Federal Court that mandated registration where the ILUA is authorised under s251B regardless of who has signed it.
In reaction to the McGlade decision, the Federal Government has put legislation before parliament that would have the effect of validating all ILUAs that have been registered prior to the decision of McGlade. This Bill has been referred to committee and submissions are currently being made. An obvious omission from the Bill (as drafted) is that, while it deals with the registration of ILUAs, it does not directly address the potential problem of agreements under section 31 of the NTA which have not been signed by all registered native title claimants. Many of the submissions that have been made in relation to the Bill address this point but it is unclear at this time whether the Bill will be amended to also deal with this issue.
In the meantime, holders of titles granted pursuant to section 31 of the NTA should take comfort in the fact that their titles are not wholly invalid by reason of any defect in the execution of agreements by the registered native title claimants. Since the agreements required under section 31 are invariably made in circumstances where there is an “ancillary agreement” that sets out the rights and obligations of the proponent and the native title party, in most cases it would be likely that there is an entitlement (express or implied) to obtain a properly executed section 31 agreement in due course to authorise re-grant of the title in question. Alternately, the execution of an agreement under section 31 may constitute a basis for an estoppel argument preventing any challenge to the validity of the relevant title. Both of these solutions contemplate litigation so neither are “optimal”.
Obviously, the ideal solution will be for the legislator to address these issues. Proponents who have titles which were granted pursuant to an agreement under section 31 should identify whether there was any defect in the execution of that agreement (i.e. whether all registered native title claimants signed the agreement) and, pending a legislative resolution, should consider seeking agreement in relation to the validity of the granted tenure. Absent such an agreement, it may be necessary to consider whether the native title party who authorised the grant of the titles has repudiated the relevant ancillary agreement or whether such agreements may be terminated.