1. The Six Regional ILUAs & Settlement Architecture

The South West Native Title Settlement, negotiated between the Western Australian Government and the South West Aboriginal Land and Sea Council (SWALSC), was structured around six regional Indigenous Land Use Agreements (ILUAs) covering approximately 200,000 square kilometres.^[2][4]

These six agreements corresponded to regional groupings: Whadjuk, Ballardong, Gnaala Karla Booja, South West Boojarah, Wagyl Kaip / Southern Noongar, and Yued.^[2][4]

Under the statutory terms of these ILUAs, the State offered a financial and land package valued at approximately $1.3 billion over twelve years—including the transfer of up to 320,000 hectares of Crown land into a charitable trust, funding for regional corporations, and symbolic recognition.^[2][4] In exchange, the ILUAs contained a mandatory surrender and extinguishment clause: the permanent surrender of all Native Title rights and interests across the entire Southwest, alongside the complete waiver of all historical compensation claims against the Crown.^[1][2]

2. The Historic McGlade Federal Court Victory (2017)

The registration of the ILUAs faced fierce resistance from traditional custodians who refused to sign away their unceded ancestral birthright.^[1][2] Several officially named Native Title applicants—including senior elders and academic Dr Hannah McGlade—refused to execute the ILUA documents, and some passed away prior to signing.^[1][2]

In McGlade v Native Title Registrar (2017), the Full Court of the Federal Court delivered a stunning blow to the State Government, ruling that under Section 24CD of the Native Title Act 1993 (Cth), an area ILUA is legally invalid and cannot be registered unless signed by EVERY single living individual who is a registered applicant.^[1][5]

The Court held that the Registrar had acted unlawfully in registering the ILUAs without the signatures of all applicants, overturning the earlier precedent in Bygrave and declaring the South West Settlement agreements void.^[1][5]

3. Retrospective Commonwealth Legislative Override

Fearing the collapse of the $1.3 billion deal, the Turnbull Federal Government and the Western Australian Government acted with lightning speed to nullify the Federal Court's judgment.^[2][3]

Within months of the McGlade ruling, the Commonwealth Parliament passed the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth).^[3] This legislation retrospectively altered the law to allow ILUAs to be registered with only a simple majority of applicants signing, overriding the objections of dissenting custodians and legally forcing through the registration of the surrender agreements in 2021.^[2][3]