McGlade v Native Title Registrar [2017] FCAFC 10

McGlade v Native Title Registrar [2017] FCAFC.

WAD137/2016, WAD138/2016, WAD139/2016, WAD140/2016

Between: Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith, and Margaret Culbong (Respective Applicants in the above four proceedings) AND the Native Title Registrar, the State of Western Australia and related State parties, the South West Aboriginal Land and Sea Council (SWALSC), and representatives of the Noongar people who had signed and agreed to the Wagyl Kaip & Southern Noongar, the Ballardong People, the Whadjul People, and the South West Boojarah #2 Indigenous Land Use Agreements (Respondents).

Judges: North, Barker and Mortimer JJ

The Full Court of the Federal Court considered whether four agreements in relation to the South West Native Title Settlement (the Noongar Settlement) met the requirements for registration as area indigenous land use agreements (ILUAs) under the Native title Act 1993 (Cth) (NTA). The ILUAs contained the terms for the full and final settlement of all current and future native title claims over the ILUA areas.

Four applications were heard together challenging the validity of the ILUAs on the basis that not all the people who comprised the registered native title claimant (RNTC) had agreed to sign. The applicants asserted that the agreements were not ILUAs within the meaning of ss 24CA(1)-(2) of the NTA.

Judgment

The Court found that a plain reading of the NTA meant that all individual members of the RNTC must be a party to and sign an ILUA before it can be entered into the Register of ILUAs.

Significance

Significantly, this decision overruled the position adopted by the Court in Bygrave v Native Title Registrar (No 2) [2010] FCA 1019 (Bygrave) and led to the Commonwealth Parliament amending the NTA through the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth). The amendments made the NTA consistent with the Bygrave decision.

Background

In February and March 2015, the Noongar people held authorisation meetings for the the Wagyl Kaip & Southern Noongar, the Ballardong People, the Whadjul People, and the South West Boojarah #2 ILUAs (the ILUAs). These four ILUAs, along with the Yued and Gnaala Karla ILUAs which were not contested, together make up the Noongar Settlement. At the meetings, the people who held or claimed to hold native title over the relevant areas (the native title claim group) adopted a majority decision-making process, with no person having a right to veto. In this way, a decision was made to authorise any, but not necessarily all, of the people who comprised the RNTC to sign the ILUA as representative parties for the native title claim group.

The applicants in these four proceedings, except for Naomi Smith, were each members of a RNTC. Naomi Smith is a member of the Whadjuk People native title claim group. There were different reasons why a member of each RNTC had not signed an ILUA. Some, like McGlade, had refused. But in the case of the Whadjuk ILUA, an additional issue was raised because one person was incapacitated and unable to sign while another had only signed after the application to register had been made. The common question in relation to all the ILUAs was whether an ILUA is registrable without all members having signed it.

SWALSC authorised the applications to register the ILUAs under s 251 of the NTA. The ILUAs are not yet registered.

These proceedings were originally commenced in the High Court and then remitted to the Full Federal Court on 17 February 2016.

Details of Judgment

The primary issue for the Court was whether an ILUA that has not been signed by all of the people who comprise the RNTC is registrable.

In a joint judgment, North and Barker JJ noted the textual ambiguities in the NTA. However, because the definition of a RNTC in s 253 of the NTA refers to the s 61(2) definition of a native title 'applicant' as being the individual members jointly, this means that a RNTC is a singular entity that may be comprised of multiple people whose names appear on the Register as the 'applicant' [234].

Ultimately, 'in order to construe the provisions of the NTA in a harmonious manner, the reference to all registered native title claimants in s 24CD(2)(a) must refer to each registered native title claimant, if there is more than one, in the sense of the entity defined by s 253 [234].

It was on this basis that the Court rejected the argument that the broader native title claim group had authorised the signing of the ILUAs at the meetings by a majority of the RNTC. All the named members of a RNTC are required to sign the ILUA. If the claim group wants an ILUA to be signed, but a member refuses to sign it, then the claim group must remove that person under the provisions in s 66B of the NTA [245].

This may be an inconvenient outcome, North and Barker JJ said, but it is a matter for Parliament as to whether the NTA should provide some other mechanism, apart from s 66B, for responding to circumstances where a member of the RNTC refuses to sign an agreement [265].

It followed that the Court declined to follow Bygrave, instead holding that '[w]hile the claim group's authority is unassailable when it comes to the authorisation of persons to lodge a claimant application and in deciding whether an applicant should be replaced, and in authorising an indigenous land use agreement for registration, the claim group does not have the power otherwise to alter the requirements of the NTA governing who should be parties to, and sign, an area agreement' [267].

Their Honours also held that an ILUA is effective as long as all members of a RNTC have signed before the process of registration is completed [271].

In a separate judgment, agreeing with North and Barker JJ, Mortimer J added that requiring the unanimous action of the members of a RNTC to voluntarily accept the rights and obligations associated with being a party to an ILUA is in line with the principles of the general law of contract [403].

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