Juru People and Local Government Indigenous Land Use Agreement (ILUA)
|Date: ||28 July 2014|
|Sub Category:||Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Place:||Located in the vicinity of Bowen and Home Hill|
|The Agreement Area covers about 5386 sq km extending from approximately 2.4 km north of Home Hill to approximately 10.7 km east of Bowen.
This area is within the authority of both the Burdekin Shire Council and the Whitsunday Regional Council.
|Legal Status: ||Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 28 July 1014. This is an Area Agreement under the Native Title Act 1993 (Cth). |
|Legal Reference: ||National Native Title Tribunal File No.:QI2014/011|
|Subject Matter:||Housing, Construction and Infrastructure | Land Use | Local Government | Native Title|
|Summary Information: |
|The Juru People and Local Government Indigenous Land Use Agreement (ILUA) was agreed between:|
- the Whitsunday Regional Council and Burdekin Shire Council; and
- Margaret Smallwood, Tracey Lampton, Loretta Prior, Raymond Gaston, Andrew Morrell, Janet Lymburner, Elsie Pryor Lymburner, Iris Glenbar and Lenora Aldridge for the Juru People;
- Juru Enterprises Limited; and
- Kyburra Munda Yalga Aboriginal Corporation
on 28 July 2014
The purpose of the Agreement is to provide consent for the performance of both Low and High Native Title Impact Activities within the Agreement Area. The performance of these Activities is conditional upon certain requirements.
|Detailed Information: |
|Details of the agreement|
The Agreement was registered with the National Native Title Tribunal (NNTT) on 28 July 2014. Whilst the Extract does not stipulate a start or end date for the Agreement, it does note certain conditions concerning the commencement of the Agreement.
Notably, the Extract states that the Agreement takes effect as a contractually binding agreement between the parties from the Execution Date, and continues in effect unless and until the Agreement is validly Terminated. The Extract does not define "Execution Date".
The Agreement effectively annuls previously applicable Parts of the Agreement. Clause 18.2 of the Agreement provides that:
(a) "Part 2 no longer applies in the circumstances in sub-clause 29.3;
(b) Part 3 no longer applies in the circumstances in sub-clause 38.2"
Parts 1 and 4 of the Agreement continue in effect indefinetely, unless the Agreement is validly terminated.
Duration of Part 2
The Extract notes that Clause 32 of Part 2 commences on the Execution Date, with all other provisions within Part 3 commencing on the Registration Date, being 28 July 2014. The Agreement goes on to outline certain conditions under which Part 2 will not apply. These conditions include where:
(a) "the Native Title Claim results in an Unsuccessful Determination;
(b) all Native Title in the ILUA Area is surrendered under the Native Title Act; or
(c) for any other reason there is legal certainty that Native Title does not exist anywhere in the ILUA Area"
Where these conditions are satisfied, any party to the Agreement may give notice to the other parties that Part 2 no longer applies.
Part 2 of the Agreement otherwise continues in effect indefinitely unless validly terminated.
Duration of Part 3
The Extract notes that Part 3 of the Agreement commences in effect from the Execution Date.
The exception to Part 3 applying is where the Native Title Party "is no longer an Aboriginal Party for all of the Cultural Heritage
Area." Where this exception applies, any party to the Agreement may confer notice to the other parties that Part 3 no longer applies.
Part 3 otherwise continues in indefinite effect unless the Agreement is validly terminated.
Native Title Provisions
The Extract states that Part 2 Division 3 Subdivision P of the Native Title Act 1993 (Cth) does not apply to any Future Acts covered by the Agreement. This means that the Right to Negotiate provisions do not apply.
With respect to Native Title and any Activities conducted on Freehold Land, Extinguihsment Areas or areas where no successful determination exists, Clause 35 outlines the consent provided by the parties to the Agreement that:
(a) "any Native Title will have been Extinguished over those areas and Native Title will not be affected by the Activity; and
(b) no Native Title compliance measures for the Activity are required."
The Agreement further notes that where Determination Orders are handed down, or an Activity falls within the Agreement Area but is not specified in the Determination Orders as being the subject of a Successful Determination, the Parties agree that for Native Title purposes
(a) "the terms of sub-clause 35.1(a) apply; or
(b) the Parties unconditionally consent to the Activity."
Low Native Title Impact Activities
"Low Native Title Impact Activities" are outlined in Schedule 6 (see attached), and may include:
- statutory approvals;
- pest control; and
These activities are unconditionally consented to by the parties to the Agreement under Clause 36.
The Agreement clarifies that "an Activity which has a Low Native Title Impact will not be an Activity which has a High Native Title Impact."
High Native Title Impact Activities
"High Native Title Impact Activities" are outlined in Schedule 7 (see attached) and may include:
- high impact tenure grants;
- high impact works / infarstructure development; and
- preventing the exercise of Native Title Rights and Interests.
"High Native Title Impact Activities" are conditional upon the Local Government satisfies one of the following criteria:
(i) "gives a Notice to the Native Title Party or the Native Title Party’s Representative in
accordance with paragraph 37.1(a); and
ii) completes Consultation in accordance with paragraph 37.1(b)."
Where the High Impact Native Title Activity involves capital work, the Local Government must:
(i) give a list of capital works involving the Activity under paragraph 52.6(e); and
(ii) reach consensus under paragraph 52.6(f) about the Activity being carried out.
Background to the ILUA
Native Title in the ILUA Area
Schedule 2 of the extract notes that the Agreement Area does not include any lands and waters subject to the following Native Title determination applications:
- National Native Title Determination Application QUD6244/1998 Birriah People (QC98/12) as accepted for registration on 2 April 1998
- Native Title Determination QUD6249/1998 Juru (Cape Upstart) people, as determined 26 July 2011.
The area does, however commence at the north eastern corner of Native Title Determination Application QUD544/2010 Juru People (QCD2010/005) as accepted for registration 27 May 2011. The Area also runs along the boundaries of the above mentioned National Native Title Determination Application QUD6244/1998 Birriah People (QC98/12) as accepted for registration on 2 April 1998.
Notably, the ILUA area covers Cape Upstart National Park. A native title application was lodged in 1997 by the Juru people for recognition of native title rights and interests over the land and waters in the area of Cape Upstart. The application was accepted for registration in 1999 pursuant to s 66 of the Native Title Act 1993 (Cth). In 2011, the Federal Court of Australia handed down a consent determination recognising the native title rights of the Juru people over Cape Upstart National Park.