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The consequence of this ruling is threefold;
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Existing registered ILUA’s that were granted based on the Bygrave judgment may be invalid,
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Tenements granted on the basis of a now invalid ILUA may also now be invalid,
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Tenement holders may not be able to simply sign up to an existing ILUA.
Senator George Brandis has commented that the Federal Government is planning to legislate to reverse the effect of this Court ruling.
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We are recommending that all clients and companies review the status of any ILUA’s that they have entered into (or are looking to enter into to) to make sure the basis of their projects are solid before proceeding further.
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UPDATE
The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was tabled in Federal Parliament on
15 February. This bill has been introduced to create certainty regarding the validity of ILUA’s previously registered. We anticipate the Parliament will take a bi-partisan approach to this important issue and the Bill will be supported.
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Native Title - Time to Review Your Risks...
A recent judgment by the Federal Court has turned on its head the existing practice that was undertaken for the execution of Indigenous Land Use Agreements (ILUAs). Existing practice, based on a 2010 decision (QGC Pty Ltd vs Bygrave (#2), was that an ILUA could be registered, even if all parties to the ILUA had not or could not sign the agreement.
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The latest Federal Court ruling has declared that the National Native Title Tribunal (NNTT) has no jurisdiction to register an ILUA unless all applicants have signed the agreements. This means that it may not be possible to simply sign on to an existing ILUA, should one of the original Indigenous signatories be unavailable/unable to re-sign.
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The Court also decided that the Native Title Act includes the ability to replace an applicant to an ILUA, and parties should use this mechanism where appropriate.