George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Thank you very much, indeed, Senator Smith. That is a very important question because on 2 February—that is, at the end of the week before last—the full court of the Federal Court delivered an important decision called McGlade v Native Title Registrar in relation to the single Noongar Settlement. The effect of that decision was to overrule an earlier decision of a single judge of the Federal Court in 2010 in a case called Bygrave (No. 2), which had settled the law in relation to the necessary requisites for an Indigenous land use agreement to be registered. In short, what Justice Reeves had held in Bygrave, which until the week before last was understood to be settled law, was that it was not necessary for all members of the claimant group to consent to the registration of the Indigenous land use agreement, or ILUA.

The McGlade decision some 13 days ago overruled that decision and decided otherwise. This is a very significant development in relation not only to Indigenous land use agreements—of which there are 123 registered in Australia at the moment—but to all Indigenous land use agreements seeking registration because the effect of it is to enable a single member of a claimant group, by withholding their consent, to prevent the registration of the ILUA. This is, as I say, a very significant development in the law. It had not been anticipated.

Then, if Senator Smith cares, in his supplementary question, to ask me, I will advise him what the Commonwealth is doing about it.