George Brandis failed to act on land rights warning

George Brandis was warned last year to take legislative action to pre-empt the freeze on indigenous land-use deals.

Federal Attorney-General George Brandis.

Attorney-General George Brandis was warned last year to take legislative action to pre-empt Friday’s nationwide freeze on indigenous land-use agreements that has stalled Adani’s $16 billion coal project in central Queensland.

A leaked letter to Senator Brandis shows indigenous groups pleading in August for “urgent’’ technical amendments to the ­Native Title Act to thwart this month’s Federal Court decision that has invalidated land-use agreements across Australia.

A native title deal between Adani and indigenous groups, which was to pave the way for construction of the massive coalmine, was put in limbo on Friday — the first project to be affected by the Federal Court decision.

The National Native Title Tribunal’s cancellation of Friday’s scheduled registration of the Adani deal — required for it to be legally binding — is among scores of pending agreements on proposed projects now in jeopardy.

At least a further 126 indigenous land-use agreements — ­already registered and covering mines, gas fields and infrastructure projects — are also under threat. Senator Brandis was told last year by one of Australia’s peak indigenous groups that the “McGlade’’ case could undermine land-use agreements that “have supported projects worth many billions of dollars nationally’’.

Glen Kelly, the chief executive of the National Native Title Council, which represents 16 indigenous land councils, said if the then Federal Court challenge to a West Australian land-use agreement was successful, it would have immediate effects.

“A successful result would generate a major rupture for industry, government and native title parties,’’ he warned. “If such an outcome occurred, it is to be expected that each of these sectors would seek urgent remedy in the form of NTA amendments along the lines of those being recommended in this correspondence.’’

Senator Brandis last year did not take any action, but last week his office said amendments to the Native Title Act were now under consideration.

The “McGlade’’ decision ­applies to agreements with indigenous groups that have made a native title application but are still waiting for a Federal Court determination on their claim.

Under the decision, any agreement without the signed approval of every designated applicant in the clan’s native title claim is invalid, despite majority decisions being accepted for many years.

Until the McGlade decision — which related to a $1.3bn deal struck between the Noongar clan and the West Australian government — the 2010 “Bygrave’’ decision in the Federal Court made clear a majority of applicants was sufficient for a legally binding indigenous land-use agreement. In his letter, Mr Kelly told Senator Brandis that the “Bygrave’’ precedent had worked well in ensuring a ­majority of applicants supported a deal before it then went to the wider members of the clan for a vote at a so-called “authorisation meeting’’.

Mr Kelly said the McGlade decision would give “power of veto to small groups or people or individuals’’ and negate “the will of the ­majority’’ in a full vote of an Aboriginal clan. “The solution ... is a very simple amendment to the NTA to clarify that for an agreement to registered as an ILUA, not all RNTCs (applicants) are required to sign an agreement once it has been properly authorised … in a meeting on behalf of the wide traditional owner group,’’ he said.

“This would in effect codify Bygrave, eliminate the likelihood of repeated litigation on this point and re-establish the certainty and confidence in the ILUA provisions of the NTA that all parties need.’’

When asked about the letter, Senator Brandis’s spokesman said there was nothing to add to a statement last week saying the government was considering NTA amendments in the wake of the Federal Court decision.

The government has privately told stakeholders that amendments are being drafted in response to the ruling. Federal Labor last week indicated it would consider supporting amendments. The mining industry and the Queensland Labor government last week also called on the Turnbull government to act.

Adani’s Carmichael project — set to be Australia’s largest ever coalmine — is among at least 40 proposed or ­operating resource projects in Queensland alone that are hit by the decision.

A lucrative land-use agreement between Adani and the Wangan and Jagalingou people had taken years to negotiate but is now frozen because of the Federal Court decision.

Although the 12 formal native title applicants of the Wangan and Jaglingou were split — with seven to five supporting Adani — a formal “authorisation meeting’’ last year of clan members voted 294-1 to endorse the agreement.