Greg McIntyre SC on What's the Price of Transparency in Native Title? ILUAs post McGlade

Tuesday May 29, 2018

Greg McIntyre SC was admitted to practice in 1974. He gained extensive experience in the first 15 years of practice in criminal law and also practised between 1984 and 1988 in Family Law. 

Greg Mcintyre

We had the pleasure of sitting down with Greg recently to discuss key challenges and opportunities facing the industry today. You can read the full Q&A below.

Can you tell us a bit about your practice and what you are working on at the moment?

My native title related work at the moment is in

- seeking to resolve a few cases where there is an overlap between native title claims: setting down a process to determine the dispute over the overlap –

  • in one case by an Indigenous Land Use Agreement; and
  • in others by setting done a separate question for determination; and
  • in one case, including mediation following the exchange of expert reports before the separate question goes to a hearing

- in order to determine whether native title can eventually be obtained by consent by the appropriate native title holding group;

  • recommencing the process of seeking native title in the Eastern Goldfields of WA, following the 2007 Wongatha People’s case in which the Court found that several overlapping claims in that region had not been properly authorised, with the recently re-registered Maduwongga claim and addressing new overlapping claims being lodged;
  • advising on objections to the registration of ILUAs associated with the Noongar Settlement; and
  • commencing the process of negotiating a non-native title settlement for the Murchison-Gascoyne region.

What are some of the key trends and developments in Native Title practice that you’re seeing in WA/nationally?

The State of WA is broadly open to resolving native title claims by consent where they can be satisfied that the correct claimants have been identified and the claim group is continuing to acknowledge traditional laws and observe traditional customs;

The Badimia People case in Western Australia and the Bidjara People case in Queensland, in which the Court found that no native title had continued to exist have illustrated the fact that substantial claims can fail and that in some cases a non-native title settlement may be the most appropriate course to pursue.

Your topic will cover ‘What’s the Price of Transparency in Native Title? ILUAs Post McGlade?’ with Franklin Gaffney at our up and coming conference – why is this such a significant/timely topic?

See Franklin Gaffney’s response:

"The recent Attorney General’s Option Paper on native title reform focuses on issues associated with transparency, as does the recent CATSI Act review conducted by ORIC, and Transparency International’s 2017 report on mining approvals in Australia.

Submissions from various stakeholders on the Attorney General’s Options Paper show that there are divergent views on the issue. In most cases, opponents of transparency argue that the contracts negotiated with native title parties are ‘private’ and ‘commercial’ arrangements and any deficiencies in the agreements are due to legal advice and representation received by native title parties during negotiations.

Despite these objections to greater transparency, information concerning royalty payments to native title parties is, in most cases, now publicly available. Furthermore, many large-scale resource companies openly champion their Indigenous employment and business development outcomes.

More importantly, as submitted by Transparency International, the potential for corruption in agreement-making significantly increases in the absence of transparency. Indeed, the WA Attorney General is currently undertaking two reviews into native title charitable trusts under the Charitable Trusts Act 1962 (WA). Experience also shows that poor transparency surrounding native title agreements and their implementation has significant consequences for governance and industry standards, to the determinant of native title parties and the general public."

How has the McGlade decision affected ILUAs?

The McGlade decision had the immediate affect that the Ballardong People agreement with the State of Western Australia was declared not to be an ILUA within the meaning of s 24CA of the NTA and was incapable of being registered under the NTA because not all persons comprising the ‘native title group’/’registered native title claimant’/ ‘applicant’ were parties to the agreement, because they had not all signed the agreement.That was regarded as throwing into doubt the validity as ILUAs of the other agreements comprising the Noongar Settlement and the registration of 100s of agreements registered as ILUAs under the NTA around the country, including, topically, an ILUA relating to the Adani mine in Queensland.

In the light of the apprehended impact of the McGlade decision the Commonwealth Parliament passed the Native Title Amendment (Indigenous Land Use Agreements) Act 2017. It retrospectively validated all agreements and their registration as ILUAS, where they had not been signed by all persons comprising the registered native claimant and created a process for native title claim groups to be able, in the future, to authorise an ILUA to be signed by less than all the persons comprising the registered native tile claimant.

The Noongar Settlement ILUAs (now validated) are the subject of an application to the Registrar of Native Title seeking registration of them and the Registrar is presently considering objections to registration and whether they comply with the statutory requirements for registration.

What’s one issue/dilemma you see coming up for legal practitioners when regarding the implementation of ILUA obligations?

The implementation of ILUA obligations requires the native title parties to maintain a relationship of good-will, by ensuring regular liaison, with the grantee party, because maintaining compliance with obligations is going to be most effectively achieved by the party voluntarily doing so. The prospects of enforcing agreements by use of the dispute resolution process or legal proceedings is not one to be readily contemplated, as it is likely to be costly, time consuming and more likely than not, ultimately ineffective.

Going forward, what is one suggestion that you would make to practitioners to ensure they are working effectively with ILUAs?

Ensure that you meet regularly with both parties to the ILUA to ensure that they are regularly made aware of or reminded of their obligations under the ILUA.

Greg was Principal Legal Officer, Aboriginal Legal Service of WA, 1988-90. From 1990-92 he worked in general litigation at Corser & Corser. He has practised solely as a Barrister since 1993. Greg has developed a High Court and Federal Court advocacy practice in the fields of Native Title, Human Rights, Immigration, Environmental law and Administrative law generally. In recent years he has also been engaged in civil litigation, personal injury cases and legal professional conduct cases. He was appointed Senior Counsel in 2002 and Adjunct Professor of Law at the University of Notre Dame in 2001 and the University of Western Australia in 2016. He has lectured regularly at the University of Notre Dame and in 2011 lectured at the University of WA on the subject of Indigenous Peoples and the Law and in 2007 lectured in Constitutional Law at Notre Dame. He was awarded the Australian Human Rights Commission Law Award in 2011.

You can hear more from Greg (co-presenting with Franklin Gaffney)  at the  8th Annual Native Title Law Conference seminar, being held on Thursday 21 June at the Parmelia Hilton Hotel, Perth.


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