The validity of potentially hundreds of agribusiness deals involving Indigenous Land Use Agreements (ILUA) may be called into question following the Full Court of the Federal Court's recent decision of McGlade v Native Title Registrar.
The McGlade decision revealed that a number of ILUAs registered over the past six years may be invalid agreements. As a result, many land use approvals granted on the basis of those ILUAs may also be invalid.
Indigenous Land Use Agreements
Many agribusiness projects, especially those requiring infrastructure or development approvals, are made possible through the negotiation and registration of an ILUA. Among other things, ILUAs allow for the recognition or surrender of native title rights and the granting of other rights, such as mining, petroleum or development rights in relation to an area of land or waters.
ILUAs, once registered, operate as if they were binding contracts among the parties to the agreement. However, unless validly registered, ILUAs are not binding on the parties and may not necessarily recognise or surrender native title rights by operation of law.
In McGlade, the Court found that, before an ILUA can be validly registered, the Native Title Act requires all individuals comprising a registered native title claimant for the relevant area of land or waters to sign the agreement. This will be problematic.
Prior to McGlade it was thought that the Native Title Act only required one or more individuals comprising a registered native title claimant for the relevant area of land or waters to sign an ILUA before it could be registered.
As a result of the McGlade decision, a number of ILUAs entered into over the past several years may be invalid due to not being signed by each of the individuals comprising a registered native title claimant that was a party to the agreement.
The Federal Government has stated it is considering amending the Native Title Act to retrospectively validate any ILUAs affected by the McGlade decision.
Agribusinesses that have (or are dealing with entities that have) obtained land use approvals on the basis of an ILUA should enquire into the validity of that ILUA.
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Authors: Andrew Gill (Partner) and Anna Crowley (Lawyer) at MinterEllison, Canberra.