02 Feb 2012

Project proponents face more Native Title uncertainty

by Mark Geritz, Tosin Aro, Tim Nielsen

Justice Reeves' decision would appear to present a major problem for project proponents seeking native title certainty for their projects in areas with no registered native title claim.

A recent decision of Justice Reeves of the Federal Court creates more questions than it answers for proponents seeking to use Indigenous land use agreements (ILUAs) to provide Native Title certainty for their projects (QGC Pty Limited v Bygrave [2011] FCA 1457).

The role of ILUAs

All project proponents need to consider if the "future act" provisions of the Native Title Act 1993 (Cth) (NTA) apply to their projects.

Future acts (eg. the grant of mining and petroleum tenements over areas where native title has not been extinguished), to the extent that they affect native title, will be valid if done in accordance with applicable "future act" procedures set out in the NTA.

However, even where such procedures are unavailable (or have not been followed), future acts will be validly undertaken if the parties to an ILUA consent to them being done, provided the ILUA has been registered by the National Native Title Tribunal (NNTT).

ILUAs are a key tool by which project proponents can achieve certainty that the native title impacts of their projects have been appropriately managed. They are particularly useful for major projects involving multiple approvals or where permissions are required with respect to native title interests, as is the case under the pipeline licence and petroleum facility licence provisions of the Petroleum and Gas (Production and Safety) Act 2004.

Authorisation – a fundamental requirement and now a new approach

The NNTT can only register an ILUA if satisfied that the ILUA was properly "authorised" (or the local representative body has first certified the ILUA as being so "authorised"). In relation to "area ILUAs" (the most common type, used where there has not been a determination of native title in relation to all of the ILUA area), this requires the NNTT to be satisfied that:

  • all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the relevant area have been identified (Step 1); and
  • all of the persons so identified have authorised the making of the agreement (Step 2).

It has long been accepted that Step 1 generally involves some or all of publicly advertising, consulting with the NNTT and the local representative body and making other reasonable inquiries to identify everybody who:

  • has a registered native title claim over the area (Class 1); and
  • otherwise asserts native title over the area (and can demonstrate a prima facie basis to that assertion, i.e. whose assertion is not "merely colourable")[1] (Class 2).

A proponent would then negotiate the ILUA with representatives of the people identified in Classes 1 and 2 (Native Title Parties).

As to Step 2, upon agreement being reached with such representatives, the ILUA would then be "authorised" by the Native Title Parties themselves, usually at a meeting convened through public advertising (and written notification, where contact details are known) to try to ensure attendance by as many members of the Native title Parties as practicable.

Following authorisation, an application could then be made to the NNTT for the ILUA to be registered. Once registered, the ILUA would become binding on the Native Title Parties generally and operate to validate any future acts for the project.

Until the 16 December 2011 decision of Justice Reeves in QGC Pty Limited v Bygrave, it was commonly understood that, where the Native Title Parties comprised more than one distinct group, all such groups would have to authorise the ILUA, and would have to do so separately.[2] In practice, this meant any people identified in Class 1 and all identified members of other distinct Class 2 groups having to (separately) authorise the ILUA.

In Bygrave, Justice Reeves interpreted the requirements of Step 2 in a fundamentally different way. He found (given the way in which "authorise" is defined in the NTA) that, while Step 1 still requires all Native Title Parties to be identified (although it appears that he introduced a different test in this respect), under Step 2, the only people who are required (in fact, who are entitled) to authorise an ILUA are those who hold or may hold the common or group rights comprising the native title in the ILUA area. Critically, Justice Reeves held that the people who hold or may hold the common or group rights comprising the native title in an ILUA area are those in Class 1. That is, the only people capable of authorising an area ILUA are the native title claim group for a registered native title claim over the area.

What does this mean for you?

Where an ILUA area overlaps the area of a registered native title claim, Justice Reeves' approach actually simplifies and clarifies the landscape for proponents in the sense that only Class 1 Native Title Parties will be required to authorise the ILUA.

The problem for project proponents with his Honour's approach arises where there is no registered native title claim in the ILUA area. While his Honour did not deal specifically with this situation, his reasoning would seem to lead to the conclusion that, in the absence of a registered native title claim:

  • while there may be people in Class 2 that are identified, there will be nobody who is capable of authorising the ILUA; and
  • as an ILUA cannot be registered without first having been authorised, proponents would be unable to use ILUAs to ensure native title protection for their projects.

The NNTT may decide, going forward:

  • to regard Justice Reeves' decision as being confined to the situation with which he was dealing, ie. where a registered native title claim does exist, and having no application to ILUAs in areas with no registered claim; or
  • where an ILUA relates to an area that is currently unclaimed but in respect of which there previously have been one or more registered claims, to recognise the native title claim group(s) for the previously registered claim(s) as being the people who hold or may hold the common or group rights comprising the native title in the ILUA area (and so are able to authorise the ILUA).

Unless the NNTT chooses to adopt either of these positions (or there has never been a registered native title claim for the ILUA area), Justice Reeves' decision would appear to present a major problem for project proponents seeking native title certainty for their projects in areas with no registered native title claim.

Where there are no other applicable validation measures available, proponents in these circumstances could be left with the unsavoury reality that compulsory acquisition of the native title in the ILUA area or other statutory mechanisms (if available) are the only solutions that will allow their project to proceed.



[1] Murray v Registrar of the Native Title Tribunal [2002] FCA 1598; Kemp v Native Title Registrar [2006] FCA 939.

[2] Kemp (Justice Reeves in Bygrave emphasised that he was not overruling Kemp, however, it is difficult to reconcile both judgments); Fesl v The Delegate of the Native Title Registrar [2008] FCA 1469.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.