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Amendment to native title legislation
On 22 June 2017, the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) (the Act) received royal assent and commenced operation. The Act amends the Native Title Act 1993 (Cth) to respond to the Full Federal Court decision in McGlade v Native Title Registrar & Ors  FCAFC 10 (McGlade).
The Act underlines the Government’s commitment to ensuring that the Indigenous Land Use Agreement (ILUA) system is a key mechanism for Indigenous Australians to enjoy social and economic benefits associated with their native title rights.
McGlade left approximately 126 area ILUAs open to legal challenge, when it found that an area ILUA could not be registered unless all authorised representatives of the claimant group were a party to the agreement. This meant that an area ILUA could not be registered unless it had been signed by all authorised representatives, including in cases where a representative had passed away before being able to sign, despite the ILUA being authorised by the native title claimants.
The Act resolves the uncertainty created by McGlade by:
- confirming the legal status and enforceability of area ILUAs which were registered on or before 2 February 2017, where not all representatives were party to the agreement
- enabling registration of agreements which were made but not yet registered or before 2 February 2017, where not all representatives were party to the agreement, and
- ensuring that in the future, area ILUAs can be registered without requiring every representative to be a party to the agreement, in circumstances where the ILUA has been authorised by the native title claimants.
Details about the Act are available at Native Title Amendment (Indigenous Land Use Agreements) Act 2017.