|The Bar-Barrum and Ergon Energy Indigenous Land Use Agreement (the ILUA) sets out parameters for operation and maintenance of existing electricity infrastructure in the area of the Bar-Barrum People's native title determination. The ILUA also sets out a process for validation of future works. The agreement is made between electricity providers Ergon Energy Corporation and the Bar-Barrum people native title holders, represented by their native title body corporate (NTBC) Bar-Barrum Aboriginal Corporation. A determination that native title exists in parts of the area of the Bar-Barrum native title claim (National Native Title Tribunal file no.: QC96/105) was made in June 2001.|
The conditions for use of existing infrastructure is dealt with in two categories: Ground Based Electricity Infrastructure (GBEI) and Overhead Electricity Infrastructure (OEI).
Under the ILUA the determination will not affect land on which GBEI is located. The NTBC will grant a licence to Ergon to use land adjacent to GBEI that is needed to operate it and not grant any other licence inconsistent with that. The NTBC also consents to a grant of lease over the area of the GBEI, subject to conditions (specified in the agreement) and provided that Ergon negotiates the other terms with the lease holder and pays associated costs. In return, the NTBC will make no further native title claim over the area.
The NTBC consents to all existing OEI remaining on the determination area and will grant a lease to Ergon to access the OEI to maintain and operate it. They will not grant any leases inconsistent with that. The NTBC also consent to the grant of any easements relating to OEI.
Under the agreement, Ergon have unrestricted access to their infrastructure, but have agreed to the following conditions:
-Ergon will take the most direct route of access so as to minimise impact on the land; and
-Ergon will notify the NTBC by telephone prior to accessing infrastructure, however this will not prevent access without notification in an emergency.
The ILUA specifies other provisions relating to Ergon's interests in the area. Any rights granted to Ergon by licences or other permits prior to the determination are not affected by the determination. The NTBC agrees not to make any compensation claim (for any loss of native title rights that may have occurred from the construction and operation of the infrastructure and will not 'prevent, inhibit or interfere' or 'pose a safety threat' to the operation of the infrastructure.
The ILUA confirms that any future infrastructure falls within the definition of a 'future act' under the Native Title Act 1993 (Cth) (the NTA), which means the acts are invalid. The NTBC consents to these future acts and the ILUA sets out process to validate the acts, as follows:
-Ergon will provide a 'written description of the location, nature and extent of the future works and, if necessary, a plan for the future works' to notify the NTBC;
-The NTBC is able to comment on the proposal within two months;
-Ergon is to consult with NTBC if requested;
-Ergon agree to 'seek to modify its plans so as to eliminate or minimise the impact of the future works on native title' if the consultation process establishes that native title rights and interests would be 'significantly affected by the proposed future works'.
For future works that can not be validated through this process, the parties will negotiate an ILUA for the specific matter. Ergon may use any other means of validation under the NTA if ILUA negotiations appear unlikely to succeed after two months.
The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply, as the alternative consultation provisions are to be followed instead. However the parties also agree that the non-extinguishment principle applies to all acts done under this agreement - this means that any of these acts which may be inconsistent with native title rights and interests do not extinguish these interests, instead they are revived when such acts are finished.