Indigenous land use agreements
The Commonwealth Native Title Act 1993 provides for Indigenous land use agreements (ILUAs) between native title holders or claimants and other interested parties about how land and waters in the area covered by the agreement will be used and managed in the future.
The Queensland Government, which is committed to resolving native title issues through negotiation rather than through costly and time consuming litigation, strongly supports these agreements.
ILUAs can also be an alternative to other processes under the Native Title Act 1993 (Cwlth).
Guidelines for negotiation of an Indigenous land use agreement
Guidelines for negotiation of an ILUA (area agreement) (PDF, 964K)* have been prepared by the department. These will assist clients who have had a land dealing approved by the department subject to the resolution of native title issues. They may also assist those who have been advised that an ILUA is the best way to proceed with their dealing.
The guidelines explain the:
- different types of agreements
- steps to negotiating an ILUA
- process of registering an ILUA.
It also includes a sample ILUA that is in a format that the State believes fulfils the legislative requirements of the Commonwealth Native Title Act 1993 and Native Title (Indigenous Land Use Agreements) Regulations 1999.
The guideline does not provide legal advice and encourages clients to seek independent legal advice. It also explains that the National Native Title Tribunal can help at all stages of the ILUA process by providing certain information and that the Native Title Representative Bodies are important parties in the process.
It is hoped that this guideline can add to the community’s understanding about native title and the appropriate processes for taking account of this interest in land.
Pastoral ILUA template
The department, AgForce Queensland, Queensland South Native Title Services and North Queensland Land Council collaborated in 2010 and 2011 to develop the Pastoral Indigenous Land Use Agreement (Pastoral ILUA) template and associated guide. The negotiations were facilitated by the National Native Title Tribunal.
The template is intended to provide a simpler and less costly process for negotiating ILUAs. Until now, there hasn’t been a standard agreement to assist Indigenous parties and leaseholders negotiate agreements.
The Pastoral ILUA template has been designed specifically to:
- resolve native title in claim areas on the non-extinguishment principle by requiring the leaseholder to withdraw as a respondent to the indigenous party’s native title claim while ensuring that the leaseholder’s interests under the ILUA, the lease and a determination are protected
- address issues that usually are of concern to both Indigenous people and leaseholder, namely, permissible activities and conditions, restrictions, exclusions that apply to the conduct of the parties when the access and use rights are being exercised
- resolve issues with public liability insurance on behalf of native title holders
- be an access and use agreement for the purposes of the Land Act 1994 and the Delbessie Agreement for leaseholders seeking to qualify for select benefits that may be available to them when they enter into access and use agreements. This avoids the need for more than one ILUA to be negotiated for the lease land.
The Aboriginal and Torres Strait Islander Land Holding Bill 2011, introduced to Parliament on 29 November 2011, includes an incentive in the form of a rental discount of 25 per cent over five years for resolving native title over certain rural leasehold lands using the Pastoral ILUA template.
A lessee who enters into a Pastoral ILUA may apply for the rental discount if they:
- hold a Delbessie lease (a lease issued for grazing, agricultural or pastoral purposes that has an area of 100 hectares or more and is for a term of 20 years or more)
- register the Pastoral ILUA on title as an interest
- withdraw as a respondent to the native title party’s native title claim
- source and pay for the native title party’s public liability insurance if such a policy is required; or alternatively, waive the insurance requirement.
The rental discount will operate independently of the lease renewal process.
Subject to the Aboriginal and Torres Strait Islander Land Holding Bill 2011 being passed, eligible lessees may apply for the rental discount from 1 July 2012 until 30 June 2017. No new applications will be considered after 30 June 2017.
Consult the guide to the Pastoral ILUA template for more detailed information on the mandatory conditions and the benefits of using the template. The guide does not provide legal advice, and leaseholders and native title parties are encouraged to seek independent legal advice. The template, and guide, is also a useful reference for agreement-making generally.
- Pastoral ILUA template (PDF, 372K)*
- Guide to the Pastoral ILUA template (PDF, 339K)*
For an editable version of the template please contact Director Policy.
Register of ILUAs
The National Native Title Tribunal (NNTT) maintains the Register of Indigenous Land Use Agreements.
Importantly, once an ILUA is registered with the NNTT it has the same status as a legal contract, binding all native title parties to the terms of the agreement—including those who may not have been identified at the time the agreement was made. This gives all relevant parties the certainty and security they need.
Right to negotiate agreements
Some dealings in land are subject to the right to negotiate process before they can proceed. Most often this process applies to the grant of mining tenements and to petroleum exploration and production tenures.
See also: Eastern Kuku Yalanji Agreements
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Last updated 12 December 2011