Evaluation of amendments to the Native Title Act 1993 made by the Native Title Legislation Amendment Act 2021

‘Section 31 agreements' are a particular kind of native title agreement which can relate to the grant of mining and exploration tenements over land which may be subject to native title. Schedule 9 confirmed the validity of section 31 agreements potentially affected by the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade decision).

In this decision the Full Federal Court determined that Indigenous Land Use Agreements (as a particular kind of agreement under the Native Title Act 1993) are invalid where not all members of the applicant group are party to the agreement. As this reasoning could similarly affect section 31 agreements, the Act confirms the validity of these agreements in cases where not all members of the native title party have signed or entered into the agreement, but at least one member has.

The changes operate to validate section 31 agreements that were entered into prior to 17 February 2021, if at least one member of each relevant native title party was a party to the agreement. The changes were intended to resolve uncertainty created by the McGlade decision in relation to section 31 agreements.