Gunaikurnai Settlement Indigenous Land Use Agreement (ILUA)

This Indigenous Land Use Agreement (ILUA) came into effect on 22 October 2010, on the same day as the Federal Court of Australia handed down a consent determination recognising the native title rights and interests of the Gunaikurnai People over land in the southeast of Victoria.

The consent determination, which is known as Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144, coincided with the signing of a Recognition and Settlement Agreement between the Gunaikurnai and the State of Victoria. This was the first claim to be settled under Victoria's new native title settlement framework, which is set out in the Traditional Owner Settlement Act 2010 (Vic).

The Gunaikurnai consent determination and settlement agreement recognised the unique native title rights of the Gunaikurnai People over around 22,000 square kilometres of land in Gippsland. The determination covers 18% of Crown land in the state of Victoria. It allows the Gunaikurnai People to receive formal recognition of their traditional ownership, as well as a hand-back of land title and various economic development, educational and employment opportunities.

This ILUA was signed to work out some of the resolutions that made up the abovementioned agreement and determination at ground level.

The ILUA provides for the following:

• Grant of Aboriginal Title
  
  The grant of Aboriginal Title is an important aspect of the settlement agreement between the Gunaikurnai People and the State of Victoria. It enables land to be returned to the Gunaikurnai, paving the way for the joint management of public lands in Gippsland. Aboriginal Title as a form of Victorian land tenure was introduced with the passing of the Traditional Owner Settlement Act 2010 (Vic).
  
  Pursuant to this ILUA, the parties consent to any grant of Aboriginal Title to the Gunaikurnai Land & Waters Aboriginal Corporation that affects native title and relates to the ILUA.
  
  With respect to the abovementioned grants, the parties also consent to all acts done in accordance with the grant of Aboriginal Title provisions in Division 4, Part 3 of the Traditional Owner Settlement Act 2010 (Vic) and Part 8A of the Conservation, Forests and Lands Act 1987 (Vic).
• 
  
  Grant of freehold title
  
  The parties to this ILUA consent to the grant of an estate in fee simple to the Gunaikurnai Land & Waters Aboriginal Corporation, as long as the grant is intended to give effect to an agreement between the State and the Corporation with respect to land at Newmerella, or any other land in the ILUA area that is to be held on behalf of the Gunaikurnai People for cultural purposes.
• 
  
  Pre-existing contracts to grant leaseholds and freehold title
  
  The parties to this ILUA give their consent to any grant of a leasehold or a freehold estate in the ILUA area to any person after the commencement date of this ILUA, where the grant is made to give effect to a written and enforceable offer, obligation, commitment, arrangement, undertaking or contract that was entered into by the State before the commencement date.
  
  Before such a leasehold or freehold estate can be granted, however, the State is to notify the Gunaikurnai Land & Waters Aboriginal Corporation of the grant. If such a leasehold or freehold estate is granted prior to the registration date of this ILUA, the grant will be validated from the registration date, being 8 February 2011.
  
• 
  Other grants of freehold title to the Gunaikurnai Land & Waters Aboriginal Corporation
  
  The parties also agree that if the State grants a fee simple over Crown land in the ILUA area to the Corporation after the registration date of this ILUA pursuant to an agreement between the parties, the surrender of native title provisions outlined below will apply to the grant.
  
• 
  Consent to future acts relating to cemeteries or crematoriums, community or sporting facilities and public works
  
  The parties to this ILUA give their consent to the doing of any future acts in the ILUA area that are:
  
  - attributable to the State of Victoria; and
  - done on or after the date of registration of this ILUA
  
  and are either:
  
  - done in relation to a cemetery or crematorium reserve, or in relation to Crown land that is used as a cemetery or crematorium in the ILUA area; and
  - done in furtherance of the purposes of a cemetery or crematorium;
  
  or:
  
  - done in relation to a community or sporting facility situated on a recreation reserve; and
  - consistent with the purpose of the community or sporting facility;
  
  or:
  
  - consisting of the construction or establishment of a public work;
  - covered by the reservations and leases provisions in Subdivision J, Part 2, Division 3 of the Native Title Act 1993 (Cth), if not for the effect of the registration of an Indigenous Land Use Agreement, as detailed in Subdivision E, Part 2, Division 3 of the same legislation.
  
  The clause stipulating the parties' consent to future acts that constitute public works will not apply if excluded by a future agreement between the parties.
  
• 
  Validation of previous future acts
  
  The parties agree to the validation of all future acts that are attributable to the State of Victoria, and that had been invalid to any extent under the Native Title Act 1993 (Cth), if these acts either:
  
  - have already been done in relation to land and waters in the ILUA area, on or prior to the commencement date of this ILUA; or
  - are acts done on or before the registration date of this ILUA that are covered by the pre-existing contracts to grant leasehold or freehold title, or the surrender of native title, provisions of this ILUA.
• 
  
  Surrender of native title
  
  On behalf of the Gunaikurnai People, the Gunaikurnai Land & Waters Aboriginal Corporation consents to the surrender to the State of Victoria of all native title rights and interests over those parts of the ILUA area to which the abovementioned grant of freehold title provisions apply. The Corporation also agrees that this surrender of native title rights is intended to extinguish native title rights in these areas.
  
  The surrender of native title under this ILUA will take effect either:
  
  - when the Corporation receives notice of a grant pursuant to a pre-existing contract to grant freehold title; or
  - immediately before the making of a grant of freehold title pursuant to an agreement between the State and the Corporation.
  
  If a surrender of native title takes effect before the registration date of this ILUA, and it concerns the grant of freehold title pursuant to a pre-existing contract, both the surrender and the grant will be validated on the registration date.

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