McGlade v Native Title Registrar [2017] FCAFC 10

McGlade v Native Title Registrar [2017] FCAFC 10

An area ILUA (Indigenous Land Use Agreement) cannot be registered unless all the individuals comprising the registered native title claimant or claimants for the area are parties to the agreement (that is, have assented, typically by signature, to the ILUA). Authorisation by the native title claim group under s 251A...

Source-derived case information.

Parties
Applicant: Mingli Wanjurri McGlade; Applicant: Mervyn Eades; Applicant: Naomi Smith; Applicant: Margaret Culbong; First Respondent: Native Title Registrar; Second Respondent: State of Western Australia; Third Respondent: South West Aboriginal Land & Sea Council Aboriginal Corporation [ICN 3832]; Fourth Respondent (wad 137/2016): Glen Colbung; Fifth Respondent (wad 137/2016): Hazel Brown; Fourth Respondent (wad 138/2016): Reg Yarran (Jnr); Fourth Respondent (wad 139/2016): Nigel Wilkes; Fourth Respondent (wad 140/2016): Donald Hayward
Jurisdiction
Australia
Judgment Date
02 February 2017
Procedural Posture
Federal Court Full Court Appeal (special Case Stated, Native Title) / Judgment (final Orders and Reasons Following Remitter From High Court)
Outcome
Declaratory relief granted (ILUAs not registrable; Registrar has no jurisdiction to register them)
Legal Topics
Indigenous Land Use Agreements (iluas), S 24 CD Native Title Act 1993 (cth), Party Requirements for Iluas, Execution and Authorisation of Native Title Agreements, Role and Authority of Registered Native Title Claimants, Contractual Effect of Iluas, Remedies and Declaratory Relief in Registration Challenges
Native Title Law Administrative Law Indigenous Land Use Agreements (iluas) S 24 CD Native Title Act 1993 (cth) Party Requirements for Iluas Execution and Authorisation of Native Title Agreements Role and Authority of Registered Native Title Claimants Contractual Effect of Iluas +1 more

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Parties

Mingli Wanjurri McGlade

Applicant

Mervyn Eades

Applicant

Naomi Smith

Applicant

Margaret Culbong

Applicant

Native Title Registrar

First Respondent

State of Western Australia

Second Respondent

South West Aboriginal Land & Sea Council Aboriginal Corporation [ICN 3832]

Third Respondent

Glen Colbung

Fourth Respondent (wad 137/2016)

Hazel Brown

Fifth Respondent (wad 137/2016)

Reg Yarran (Jnr)

Fourth Respondent (wad 138/2016)

Nigel Wilkes

Fourth Respondent (wad 139/2016)

Donald Hayward

Fourth Respondent (wad 140/2016)

Procedural Posture

Federal Court Full Court Appeal (special Case Stated, Native Title) / Judgment (final Orders and Reasons Following Remitter From High Court)

Legal Issues

  1. 1 Whether an ILUA can be registered if not all individuals comprising the registered native title claimant have signed the agreement under s 24CD(1)-(2)(a) of the Native Title Act 1993 (Cth).
  2. 2 Whether the death or incapacity of a person comprising the registered native title claimant affects compliance with s 24CD.
  3. 3 Whether authorisation processes under s 251A or authorising resolutions can overcome the absence of signatures/assent by some individuals on the registered native title claimant.

Ratio Decidendi

An area ILUA (Indigenous Land Use Agreement) cannot be registered unless all the individuals comprising the registered native title claimant or claimants for the area are parties to the agreement (that is, have assented, typically by signature, to the ILUA). Authorisation by the native title claim group under s 251A or resolutions does not override this requirement. The only statutory mechanism for dealing with a non-consenting, deceased, or incapacitated individual among the registered native title claimants is by formal application under s 66B of the Native Title Act 1993 (Cth). Unless and until such persons are removed or replaced, their signature (or legally effective assent) is...

Court Disposition

Declaratory relief granted (ILUAs not registrable; Registrar has no jurisdiction to register them)

Orders

  • The name of the First Respondent be changed to Native Title Registrar.
  • Declaratory orders in each proceeding: the relevant ILUA (Wagyl Kaip and Southern Noongar, Ballardong People, Whadjuk People, South West Boojarah #2) is not an indigenous land use agreement within the meaning of s 24CA of the Native Title Act 1993 (Cth) and the Native Title Registrar has no jurisdiction under Div 3...