Barngarla and Lucky Bay Indigenous Land Use Agreement (ILUA)

Spencer Gulf

Registered with the National Native Title Tribunal ('NNTT') on the Register of Indigenous Land Use Agreements on 26 April 2018. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Barngarla and Lucky Bay Indigenous Land Use Agreement ('ILUA') was agreed, under the provisions of the Native Title Act 1993 (Cth), between the following parties:

• Sea Transport Development SA Pty Ltd as Trustee of Spencer Gulf Trust;
• Elliott McNamara, Barry Croft and Howard Richards on behalf of the Barngarla People; and
• Minister for Transport and Infrastructure and Minister for Sustainability, Environment and Conservation.
  

The agreement area covers about 66 sq km, and is located approximately 17 km south east of Cowell and extends about 18 km southerly into the Spencer Gulf from the high water mark.

The purpose of the agreement is to consent to the surrender of a part of the agreement area to the State and to the doing of any acts relevant to the purpose of developing the area for use as a harbor.

The Native Title Representative Body for this area is the South Australian Native Title Services Ltd.

Agreement area:

The agreement area covers about 66 sq km, and is located approximately 17 km southeast of Cowell and extends about 18 km southerly into the Spencer Gulf from the high water mark. See attached part F item 12 of the agreement for a detailed description of the external boundary of the agreement area and attachment 2 for a map of the area.

Commencement:

The agreement commenced operating on 9 August 2017, that being the date on which the last of the parties signed the agreement. The agreement will continue operating for an indefinite period.

Native Title Provisions:

Right to negotiate

The parties agree that the right to negotiation provisions contained in the Native Title Act 1993 (Cth) do not apply to the acts to which they have consented to in the agreement.

Extinguishment

The agreement includes the surrender of any native title rights and interests in allotment 5 of deposited plan 88637 to the State. Therefore, from registration on 26 April 2018 the parties agree that the native title rights and interests in this area is permanently extinguished.

However, the non-extinguishment principle applies to any agreed acts in the remaining agreement area. This means that any of the activities authorised by this agreement which may be inconsistent with native title rights and interests do not extinguish these rights and interests, instead they are revived when the activities are finished.

Future act provisions

The parties consent to non-native title parties doing the following agreed acts:

• the making of regulations under the Harbors and Navigation Act 1993 (SA) to declare any of the agreement area to be a harbor;
• the making of regulations under the Harbors and Navigation Act 1993 (SA) to constitute any of the agreement area as a port;
• the Minister for Transport entering into a Port Operating Agreement;
• the creation of new or amended leases to enable the development of a harbor and port in the agreement area; and
• any other act or activity necessary for the construction and operation of a harbor and port on the agreement area.
  

Native Title in the Agreement Area:

The agreement is located within the native title determination area of the Federal Court of Australia ('FCA') proceeding Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724. (FCA File No.: SAD6011/1998, NNTT File No.: SCD2016/001).

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