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By Ted Besley

The Federal Court has found a $1.3b native title deal with the Noongar people cannot be registered. With four of the represented claimants refusing to put their names to five of the agreements, the court held that all named applicants are required to execute the agreement, even where members of the applicant group have died or lost mental capacity.

What did the Court do?

The Full Court’s decision in McGlade v Registrar National Native Title Tribunal [2017] FCAFC 10 has overturned practices regarding the execution of Indigenous Land Use Agreements (“ILUAs”) that have developed since 2010 in reliance upon the judgments of Justice Reeves in the Bygrave decisions.

In effect, the Court in McGlade found that agreements negotiated as part of a broad settlement of native title in the S/W corner of Western Australia were actually not ILUAs as defined in the Native Title Act (NTA) because they were not signed by all of the named applicants.

The Court held that resolutions passed at the relevant authorisation meetings were not competent to deal with the issue of deceased, incapacitated and “recalcitrant” applicants. It was found that the proper course for dealing with these issues is to replace applicants under section 66B of the NTA.

See the Federal Court decision here: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0010

McGlade’s Implications

The decision clearly has direct consequences for the S/W settlement deal. Predictably, Premier Barnett has since made comments to the media expressing his government’s frustration with the delays McGlade will cause to the finalisation of what has been a long negotiation.

Many commentators believe that the decision puts in jeopardy ILUAs that were not signed by all applicants but have already been registered (in reliance upon Bygrave). This concerns proponents because such ILUAs often contained consents to the grant of mining tenements for their projects. If the relevant agreement is not an ILUA, the tenements may not have been validly granted. The Federal Attorney General has acted quickly to introduce a bill to parliament aimed at addressing perceived issues caused by the decision. This is somewhat surprising as there has been no detailed analysis by the government of the impacts of the McGlade decision on existing ILUAs.

Other ILUAs to which state governments must be a party often contain consents to the surrender or extinguishment of native title. Such agreements generally contain provisions dealing with compensation for extinguishment/surrender of native title. Liability for compensation under the NTA is generally borne by government. Consequently, governments are concerned that the decision calls into question the reliability of commitments made in respect of compensation for agreed acts underpinning many major resource projects and land dealings.

Lastly, the decision highlights the critical role that applicants play in key areas of the native title system – in agreement making but also in progressing underlying native title claims. It is a reminder to all claim groups to carefully consider who they choose to represent them and to craft resolutions at meetings which deal with the myriad of outcomes that might follow.

Agreement making in the future

Given the track record of governments legislating changes to the NTA that address the concerns of sectoral interests, it is unlikely that the implications of McGlade will be as far reaching as many commentators have predicted.

For now, parties to agreements over areas that have not been determined will have to obtain the signatures of all applicants. Those that have passed away or refuse to sign will need to be replaced. Dealing with these issues in a cost effective and timely way poses challenges to both proponents and native title groups alike.

Proponents will inevitably turn their minds to whether applications are required to replace applicants who are not executing agreements. This is properly a decision for the claim group. Obvious conflicts arise when proponents become involved in such considerations. No doubt more time and resources will be brought to getting “recalcitrant” applicants to “sign the dotted line”.

Is it the system or is it Just Us?

Just Us Lawyers act for many native title groups and proponents directly affected by McGlade. Being at the forefront of Native Title, our team of recognised experts will get you through the native title system, whatever side you are on.

Watch this space! Look out for more blogs in the future about the passage of the bill currently before the parliament.

The latest rankings by Doyle’s for Leading Lawyer Rankings – Australia, 2017, have been published.

Just Us Lawyers has again been recognised in the category of Leading Native Title Law Firms with Ted Besley being featured as a recommended practitioner in Leading Native Title Lawyers.

We take a lot of pride in being featured in Doyle’s report and will continue to provide our clients with high-quality advice at all times, listening to their needs and achieving the best outcomes possible.

By Natalie Smyth

The Retail Shop Leases Act 1994 (Qld) (“the RSLA”) regulates the retail shop leasing sector in Queensland. It was introduced in an effort to address the imbalance of negotiation power between large landlords and small retail tenants by imposing mandatory minimum standards for retail shop leases.

On 25 November 2016, the Retail Shop Leases Amendment Act 2016 (“RSL Amendment Act”) came into effect, imposing a number of key changes to the RSLA. The Amendments offer further protection for retail tenants by imposing additional disclosure requirements on retail landlords. Some of the key changes to the Act can be summarised as follows:-

What is a retail shop lease?

The definition of “retail shop lease” has been amended to exclude the following lease categories from the operation of the RSLA:-

1. retail shops with a floor space of more than 1000m2;
2. leases of premises for the conduct of a retail business by a tenant who is the landlord’s employee or agent; and
3. certain non-retail leases located within a retail shopping centre that are ‘not used wholly or predominantly for carrying on a retail business’.[1]

This change will see a number of tenants excluded from the protection offered by the Retail Shop Leases Act, but will also allow these tenants the ability to negotiate commercially agreeable lease terms.

Major Lessees

Tenants who operate five or more retail shops in Australia (“major lessees”) will no longer need to obtain legal and financial advice in order to waive minimum standards imposed by the RSLA with respect to the timing and calculation of rent reviews (e.g. the rent may not be reviewed more than once in each year of the lease). Now, major lessees will be able to negotiate rent review terms that are commercially agreeable to both landlord and tenant, provided that they give a written waiver notice to a landlord.[2]

Outgoings

Under the new amendments, a retail tenant is permitted to withhold payment of outgoings until such time as the landlord has provided the tenant with an estimate of the outgoings[3]. The estimate of outgoings prepared by landlords must also now include a breakdown of the centre management and administrative fees.[4]

For those tenants who contribute towards a landlord’s marketing and advertising costs, the landlord must now issue a marketing plan at least one month prior to the start of each accounting period outlining the landlord’s proposed promotion and advertising costs.[5]

Tenants that pull out of the Lease

A retail tenant will now be required to pay a landlord’s reasonable legal fees if the parties agree on the terms of the lease and the lease has been prepared by the landlord but the tenant fails to execute/enter into the lease with the landlord.[6]

Disclosure requirements

Under section 22 of the RSLA, landlords are required to provide tenants with a disclosure statement and a draft copy of the lease at least 7 days prior to entering into the lease. Tenants are now able to agree to shorten or waive the 7 day disclosure period by providing the landlord with a legal advice report and waiver notice.[7]

Section 22(5) of the RSLA has been removed. This section imposed a limitation on the rights of a tenant to terminate a Lease based on a defective statement if the landlord had acted reasonably and honestly and the lessee is in substantially as good a position as the lessee would have been if the disclosure statement were not a defective statement.[8]

Tenants will now be required to provide landlords with a lessee disclosure statement at least seven days  before entering into the lease, rather than simply prior to entering into the lease.[9]

Options

Unless the tenant provides a signed waiver form to the landlord, landlords will now need to provide tenants with a current disclosure statement within 7 days of the tenant providing notice to the landlord exercising their option to renew the lease.  After receiving the updated disclosure statement, the tenant will have 14 days to withdraw from exercising the option.

The tenant will now have the right to terminate the lease within 6 months of the option date in the event that the landlord does not comply with this condition or the disclosure statement provided by the landlord to the tenant is defective.[10]

Conclusion

The amendments certainly offer additional protection for tenants, especially with the additional disclosure requirements imposed on retail landlords.

Landlords, in particular, will need to ensure that they are fully across the new amendments, update their standard leasing documentation and ensure they have diarised important dates to ensure they comply with the new disclosure requirements around renewals/options. Failure to comply with these new disclosure obligations could see a tenant exercising their right to terminate the lease.

If you have any questions about retail leasing in Queensland, or require the drafting of a commercial lease, please don’t hesitate to contact our property and commercial solicitor, Natalie. Call/email Just Us Lawyers – we have extensive experience in dealing with commercial and business transactions and with business planning, structuring and compliance issues.

[1]S5A(3) RSL Amendment Act.

[2]S24(2) RSL Amendment Act. The Notice will need to state that section 27(2) – (7) does not apply.

[3]S33(4) RSL Amendment Act.

[4]Ibid.

[5]S35 RSL Amendment Act.

[6]S49 RSL Amendment Act.

[7]S21B(2).

[8]S15 RSL Amendment Act.

[9]Ibid.

[10]Ibid.

Just Us Lawyers’ principal Colin Hardie was outside the Queensland Supreme Court to announce an appeal in relation to Government approval of the widely criticised Adani Carmichael coal mine.

Colin represents the Wangan and Jagalingou People, who have launched a number of legal challenges to mining giant Adani’s proposed mine, which is intended to be situated in central Queensland. If it goes ahead, the multi-billion dollar mine will result in Native Title being extinguished across 28 square kilometers of the Wangan and Jagalingou People’s traditional country.

The mine has been the subject of a lot of media attention, with environmentalists and other analysts questioning the impact it will have on the region, including on the Great Barrier Reef.

Just Us Lawyers will represent the Wangan and Jagalingou People in the appeal, arguing that they were denied natural justice by Queensland resources minister Anthony Lynham when he made the decision to grant mining leases for what is intended to be the world’s biggest coal mine.

Adrian Burragubba, spokesperson for the Wangan and Jagalingou people, has raised concerns about the failure of both Adani and the State Government to acknowledge the traditional owners’ rights, and is quoted as saying “Every step of the way they have undermined us, opposed us and attempted to coerce us into accepting a pittance for relinquishing our native title.”

Read the full article published in the Guardian by Joshua Robertson here: https://www.theguardian.com/environment/2016/dec/07/indigenous-owners-launch-fresh-legal-challenge-to-adanis-carmichael-mine

And other related articles:

http://www.abc.net.au/news/2016-12-05/what-we-know-about-adani-and-the-carmichael-mine-project/8094244

http://www.abc.net.au/news/2016-12-06/adani-claim-for-government-loan-questioned-after-admission/8097666

https://www.theguardian.com/business/2016/dec/03/adani-coal-mine-green-groups-fume-over-plan-for-1b-federal-loan

http://www.abc.net.au/news/2016-12-06/adani-coal-mine-carmichael-townsville-protest-gautam-premier/8095576

Just Us Lawyers acted for a Kalkadoon elder in battling a Diamond Joe Gutnick’s Legend International Holdings in respect to a proposed phosphate mine in the Mount Isa region.

Our client was successful in the case by getting changes to the environmental conditions to meet his cultural concerns. He had expected to get an order for the costs of obtaining expensive expert reports to support his case but the Land Court ruled it did not have the power to award costs in challenges to mining and environmental permits.  Mr Hardie of Just Us law is quoted in an article published in the Guardian:

“ Future mining objectors who could not afford the reports needed to win their case would struggle to find law firms or experts willing to wear those costs on their behalf. The green movement are lauding that decision against Adani as a big victory,” Hardie said. “They’ve said costs shouldn’t be awarded against objectors for trying to review environmental authorities and I agree. But I think the disadvantages far outweigh the protections because it basically means if you’re a little fella battling a big company and you have to go and get your expert reports, you’ve got no chance because you can’t even say to the experts, ‘You produce this report and if we get a costs order, you’ll get paid.’ This means any little person that doesn’t have resources on their own is less likely to object – when they have a valid objection.”

Click here to read Joshua Robertson’s article ‘Indigenous elder who took on miner and won left with $70,000 in legal costs’ published on the Guardian website 

Please contact us if you have any questions in relation to Resource and Indigenous Law