Message from the CEO
Thursday 2 February 2017
Federal Court Decision in McGlade v Native Title Registrar [2017] FCAFC 10
Today, the Full bench of the Federal Court handed down its decision in the Court cases brought by Mingli Wanjurri McGlade, Margaret Culbong, Mervyn Eades and Naomi Smith to prevent the Registrar of the National Native Title Tribunal from considering the Whadjuk, Ballardong, South West Boojarah and Wagyl Kaip Indigenous Land Use Agreements (ILUAs) for registration.
Between January and March 2015, the six Noongar claim groups held authorisation meetings to consider the settlement of their claims for native title and decided whether to approve the benefits set out in six ILUAs negotiated with the State Government.
All six authorisation meetings voted to approve the negotiated settlement of their claims for native title; voted to approve the ILUA for each region; and voted to direct the Noongar ‘Named Applicants’ to sign the ILUAs on behalf of the group.
Of the 44 Named Applicants across the six groups, five Named Applicants refused to sign the ILUAs they were directed to sign.
Lawyers acting for two of these five Named Applicants, and two other Noongar people who were not Named Applicants, went to the High Court seeking an order to prevent the National Native Title Tribunal (NNTT) from registering the Whadjuk, Ballardong, South West Boojarah and Wagyl Kaip ILUAs. No applications were made to prevent the registration of the Yued or the Gnaala Karla Booja ILUAs. The matter was referred by the High Court to the Federal Court for trial in February 2016.
At the trial, lawyers for Mingli Wanjurri McGlade, Margaret Culbong, Mervyn Eades and Naomi Smith argued that it did not matter that the Noongar Authorisation meetings voted to approve the Agreements or that the meetings directed the Noongar ‘Named Applicants’ to sign the ILUAs on behalf of the groups. They argued that because some of the Named Applicants did not honour the direction of the meeting and refused to sign the ILUAs, the ILUAs could not be submitted to the NNTT for registration.
SWALSC’s position at trial was to support the decisions made at the six Noongar authorisation meetings by arguing that it is the decisions made by the groups that matter, not whether every single Named Applicant signed the ILUAs. SWALSC argued that five people should not be able to veto the decisions made at the meetings and ignore the group’s direction by refusing to sign the ILUAs.
SWALSC’s position was supported by a previous decision of the Court in a case known as QGC Pty Ltd v Bygrave (No 2). The legal principle arising from that case has been relied on to register hundreds of Agreements made by Aboriginal people across Australia where some of the Named Applicants have refused to sign Agreements approved by the members of the native title group.
Today, the Full Bench of the Federal Court decided that the way the Native Title Act was interpreted in the Bygrave (No 2) case was wrong, and that all Named Applicants must sign an Agreement before the Agreement can be presented to the Registrar of the National Native Title Tribunal for registration.
SWALSC will now take the time to read and understand the written decision, seek legal advice, and let the Board of Directors consider that legal advice before deciding on the best path forward.
The Court’s decision today will provide guidance and SWALSC remains committed to taking every step necessary to ensure that the decisions made by the Noongar community at the six authorisation meetings are honoured and that all six ILUAs become registered.
A further update will be provided on Facebook, the SWALSC web page and in writing to all SWALSC members advising where we go next once we have had time to read and understand the Court’s decision and decide on the best path forward.
Thank you for your strength and for your patience while we work through this.
Wayne Nannup
Chief Executive Officer
SWALSC