The decision in McGlade disrupted the previous approach to agreement making by native title claim groups. Previously, authorisation of an ILUA by the claim group was seen as the most significant element of the process, since authorisation expressed the will of the group holding a communal native title. The subsequent acts of signing and registering the ILUA were viewed as mere administrative acts giving effect to the group’s decision. Instead, McGlade emphasises the authorisation of the applicant to make the native title application and deal with matters arising under it (including making ILUAs).
In contrast, after a native title determination, the PBC must consult and obtain the consent of the native title holders before making an ILUA. This procedure relies not on the authority of the PBC, but on the native title holders’ views about the particular ILUA and its subject matter. These differences demonstrate the imperfections in the mechanisms available to a group of native title holders defined under traditional laws and customs to make agreements enforceable in Australian law.
This paper examines these issues and considers the prospects for establishing more consistent and appropriate mechanisms for native title groups to make agreements.