An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between a native title group and other parties about the use and management of land and waters. Once registered with the National Native Title Tribunal, an ILUA binds all native title holders in the area, including those who did not sign the agreement.
What is an Indigenous Land Use Agreement (ILUA)?
An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between a native title group and other parties about the use and management of land and waters. Once registered with the National Native Title Tribunal, an ILUA binds all native title holders in the area, including those who did not sign the agreement.
ILUAs are one of the primary tools by which native title holders can shape how their Country is used and managed. They give Traditional Owners a meaningful seat at the table when governments and developers propose activities on or near native title land, and they give those parties the legal certainty they need to proceed.
The three types of ILUA
The Native Title Act 1993 provides for three types of ILUA, and the differences matter.
Body corporate agreement. This is the simplest type. It is made with a registered PBC or RNTBC and is used where native title has already been determined and the PBC is the recognised representative of the holders. The PBC’s authorisation processes under its own constitution and the CATSI Act apply.
Area agreement. This is used where there is no registered PBC for the area, either because a native title determination has not been made or because the PBC has not yet been established. An area ILUA must be authorised by all persons who hold or may hold native title in the area, through a process that gives all potential holders a genuine opportunity to participate.
Alternative procedure agreement. Less common. Used where a State or Territory and a registered native title body corporate agree to use an alternative procedure for approving certain future acts.
What an ILUA can cover
ILUAs are flexible instruments. They can address:
- consent to specific activities such as mining, exploration, construction or infrastructure
- cultural heritage protection commitments and management arrangements
- access to Country for traditional activities
- employment and training commitments for native title holders
- compensation or other benefits for activities that affect native title
- arrangements for the ongoing management of Country
The terms are negotiated between the parties. There is no prescribed content beyond the requirements that make the agreement valid under the Native Title Act.
The authorisation requirement
An ILUA is only valid if it has been properly authorised by the relevant native title group. For an area ILUA, this means a process that genuinely includes all potential native title holders, conducted in accordance with the group’s traditional decision-making processes.
The authorisation requirement is not a formality. ILUAs that have not been properly authorised can be challenged and set aside, which can undo years of negotiation. Getting legal advice on the authorisation process before the agreement is finalised protects the group and protects the validity of the outcome.
Once registered
Registration with the NNTT makes the ILUA binding on all native title holders in the area, not only those who participated. It also provides legal certainty to the proponent or government party that the agreed activities can proceed.
Getting advice on an ILUA
If your group is being asked to enter into an ILUA, or if you are in the middle of negotiations, legal advice before you commit is important. The terms of an ILUA can have long-term consequences for how your Country is managed and what rights the group retains.
David Saylor advises Traditional Owner groups and PBCs on ILUA negotiations and authorisation. Call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au.