Pre-determination ILUAs and the possibility of implosion

Friday, 3 June 2016
Charles Gregory

An ILUA entered into before a determination of native title is made can legitimately validate future acts and produce benefits for registered claimants and others. But the effectiveness of steps taken to secure certainty for all parties can potentially unravel years later.

Particularly in cases of competing claims, registered claimants must take the counterintuitive course of attempting to secure authorisation of the ILUA from all persons who may hold native title. Against this, inviting dissidents to participate can frustrate the passage of resolutions and fuel divisions. But failure to obtain proper authorisation can mean that registration might be refused, or perhaps more ominously, that the ILUA might be deregistered if a determination is later made in which any of the persons who hold native title did not authorise the making of the ILUA.

When a determination is ultimately made, NTA s1993C(1)(b) can require de-registration of the ILUA and/or a detailed re-examination of the authorisation process. This makes it critical that procedures are complied with and that a record of processes followed is kept and remains. When the benefits (and burdens) of an ILUA are spread over the life of a project, deregistration at an unforeseen stage can lead to an unexpected imbalance in the benefits received (or burdens borne).