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Indigenous Land Use Agreements - New Records and New Trends

Over 100 ILUAs Completed in Queensland

Indigenous Land Use Agreements (ILUAs), have been available as a mechanism for resolving native title matters through agreement since 1998.  In that year amendments to the Native Title Act, 1993 sought to provide a "legally certain, procedurally straightforward and comprehensive agreements framework".[1]

Over recent years, parties to native title claims and project proponents have increasingly used ILUAs as a comprehensive, flexible and innovative means of addressing native title in a range of circumstances.  A significant milestone was recently passed in Queensland with over 100 ILUAs now being registered in the State.  In fact, as at June 2005, of the 170 ILUAs registered throughout Australia, some 107 are located in Queensland.

Since 1998, MacDonnells has assisted parties in the completion of more ILUAs than any other law firm.  In fact, our specialist Indigenous Law Practice Group has been involved in over 30% of all ILUAs completed in Queensland involving industries as diverse as mining, local government, energy and infrastructure providers.

Different Types of ILUAs
There are three types of ILUAs which can be used in different circumstances:

  • Area Agreement ILUAs can be used to address any native title matter before a native title claim is finalised.
  • Body Corporate ILUAs can be used to address any native title matter after a claim is finalised and a native title body corporate appointed to act on behalf of the native title holders.
  • Alternative Procedures ILUAs are much less common and have more restricted use.

The practicality of ILUAs has recently been enhanced. Under the new Aboriginal Cultural Heritage Act, 2003 and Torres Strait Islander Cultural Heritage Act, 2003, they can now be used in Queensland to guarantee indigenous cultural heritage compliance for projects as well as addressing native title.
 
Where time and other factors allow, ILUAs can be used as a "one stop shop" for addressing the full range of indigenous compliance issues as well as commercial and reconciliation issues between the parties.

Practical Outcomes

Another approach to categorising ILUAs is as follows:

1. Claims ILUAs - These are area agreement, body corporate or alternative procedures ILUAs which comprehensively record mediated outcomes for native title claims between claimants and respondents, often over an entire claim area.  They can:-

  • Detail the practical relationship between a respondent's existing interests and native title.
  • Set out the basis on which a respondent will consent to a determination of the claim.
  • Provide for non-determination outcomes to a claim including tenure resolution outcomes.
  • Contain clear and simple procedures for native title compliance in relation to specified activities and projects or entire categories of activities and projects in all parts of an ILUA area.
  • Contain a clear and straightforward procedure for cultural heritage clearances for future activities and projects in all parts of an ILUA area.
  • Record initiatives which promote reconciliation at a local or regional level.

2. Future Act ILUAs - These can be area agreements, body corporate or alternative procedures ILUAs which enable a specific project, activity or tenure dealing over a particular area to proceed either before or after the finalisation of a claim.  They can:-

  • Provide for the surrender of native title.  For example, enable a freehold grant to be made over USL.  The State of Queensland must be a party where a surrender is proposed.  Alternative procedures ILUAs cannot be used for this purpose.
  • Ensure complete cultural heritage compliance for the project or activity.
  • Provide for the project, activity or tenure dealing to proceed in a way which does not extinguish native title.
  • Enable the project, activity or tenure dealing to proceed with the consent of the native title party on either an unconditional or a conditional basis.

Innovative Outcomes

There is no end to the range of agreed outcomes or the level of innovation which ILUAs can involve.  The diversity of ILUA outcomes is demonstrated by the following examples in which MacDonnells has assisted:-

  • Cairns Esplanade ILUA - This area agreement ILUA was negotiated by Cairns City Council with two overlapping claimant groups.  It enabled tenure dealings and construction activities to proceed over a large area of both land and waters.  It facilitated one of the largest public infrastructure developments in the history of Cairns.  In exchange for consents to all necessary project activities and approvals, the non-extinguishment principle was applied and a package of outcomes was provided to the indigenous parties including employment, remuneration, recognition and involvement.
  • Central Queensland Gemfields ILUA - This area agreement ILUA has facilitated the grant of hundreds of mining tenements in an entire region of Queensland.  It has particularly assisted in revitalising mining activities in the central Queensland gemfields.  Consent to specific categories of mining tenements and activities was provided by the native title parties on a conditional basis including the payment of a reasonable fee.  The ILUA included an up-front cultural heritage clearance for the most actively used parts of the gemfields.
  • Ergon Energy ILUAs - Ergon Energy holds the record for the most number of ILUAs completed to date in Queensland.  It negotiates a mediated package of outcomes to native title claims in its areas of operation.  Outcomes include support for the consent determination of claims, the recognition and protection of Ergon Energy's existing interests, uniform procedures for native title compliance for future projects anywhere in the ILUA area and straightforward procedures for cultural heritage clearances for Ergon Energy's activities throughout the ILUA area.
  • Torres Shire ILUA - This is the most comprehensive local government ILUA completed in Australia to date.  It covers some 80% of Torres Shire and was registered in conjunction with the determination of five native title claims.  It provides native title consent for a wide range of local government activities, facilitates specific land dealings in relation to major projects and provides an innovative system for the future surrender of native title over specific parcels where future freeholdings are required for Council or community purposes.

For further information on the development of ILUAs please contact one of our Indigenous Law team:-

  • Oliver Gilkerson - 3031 9714
  • Jenny  Humphris - 3031 9720
  • Andrew Kerr - 4030 0564

Indigenous Law Solutions is a newsletter intended only to provide general information about current legal issues and does not constitute, nor should it be used or treated as, professional or legal advice.  Readers should make their own enquiries or seek legal advice before making any decisions concerning their own interests.

[1]    Attorney-General's second reading speech for the Native Title Amendment Bill 1997