In 1998 amendments were made to the Native Title Act (Cth) 1993 which repealed Section 21 and made way for broader rights of native title claimants and provided the current process of negotiating, signing and enforcing Indigenous Land Use Agreements. Despite being in use since 1998, there is still a lot of confusion surrounding what Indigenous Land Use Agreements (ILUAs) are, how they can be used and how they may affect you.
Indigenous Land Use Agreements: What are they and how can we use them?
ILUAs are contracts entered into under the Native Title Act (Cth) 1993 by native title groups and other parties concerning an area of land or water where native title has been determined or where native title is claimed to exist. ILUA are legally binding when registered with the National Native Title Tribunal (NNTT) and can cover issues such as:
- Future development of land;
- Access to land and water sources;
- Cultural heritage; and
- Employment opportunities for the native title group.
It also preserves the non-extinguishment of native title principle and allows for compensation in the event of future acts that breach the conditions of the ILUA.
A native title group, is either a registered native title group or a claimant group.
You may hear them referred to as a 'prescribed body corporate' or 'registered native title bodies corporate' depending on their registration status. In essence it is any Indigenous nation or clan group that has made a claim for native title, which may or may not yet be determined by the NNTT. The native title group can negotiate and enter an ILUA with other entities pertaining to the land and water over which there is a native title claim.
The types of ILUA specified in the Native Title Act are:
- Body corporate agreements which are made for areas where native title has been proved to exist (a registered native title group);
- Area agreements which are made where there are no registered native title bodies corporate for the whole area, and may deal with a range of future acts and access to non-exclusive agricultural and pastoral leases (a claimant group not yet registered as having a proven native title claim over the land/water); and
- Alternative procedure agreements which may be made where there are no registered native title bodies corporate for the whole area. They may also provide a framework for making other agreements about matters relating to native title rights and interests.
- The third type of agreement can be complicated if there are ILUAs being negotiated and entered into against wishes of clan groups.
Things that can be included in an ILUA are set out in the Native Title Act. It provides that any type of ILUA may be about one or more of the following topics:
- What activities can occur on the land or with the water in the future either specifically or as a general class of activity (ie. mining);
- Where particular activities have already occurred on land or water, the ILUA can stipulate whether this can continue, whether it needs to be modified or the cessation of the activity;
- Withdrawing, amending, varying or doing any other thing in relation to a native title or compensation application in relation to land or waters in the area;
- The relationship between native title rights and interests and other rights and interests in relation to the area;
- The manner of exercise of any native title rights and interests or other rights and interests in relation to the area;
- Compensation for any past act, intermediate period act or future act (this is the enforcement of the ILUA).
The above list are examples and aren’t a limitation on what can be negotiated. Ultimately, where the terms do not contravene existing law, the ILUA can be entirely unique depending upon the parties negotiating, the activities being considered and the unique land/water that is the subject of the agreement.
Any party to an ILUA may (on the grounds all of the other parties agree) apply in writing to the Native Title Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements. The Native Title Act requires that the Registrar must give notice of the ILUA to any of the persons and bodies specified in the Native Title Act who are not parties to the agreement and must also notify the public.
The Registrar will register the ILUA if certain conditions are satisfied but must not register the ILUA in other circumstances specific to each type of ILUA. If all procedures and conditions are complied with, the ILUA will be registered.
Once it is registered on the Register of Indigenous Land Use Agreements, the ILUA has effect (in addition to any effect it may have apart from the Act) and is enforceable between the parties. The ILUA is not enforceable upon anyone that is not a party to it.
All requests can be made to the National Native Title Tribunal, but requests require financial assistance in order to procure a subject matter expert for legal advice. The assistance may take the form of a member of the Tribunal being involved in the negotiations. They may also ask the Commonwealth Attorney-General for assistance in relation to negotiating the agreement, or any inquiry, mediation or proceeding in relation to the agreement.