Port Spencer Indigenous Land Use Agreement (ILUA)

Tumby Bay

Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 11 September 2020. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Port Spencer Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth), between:

• Barngarla Determination Aboriginal Corporation Registered Native Title Body Corporate (RNTBC);
• Free Eyre Limited;
• Minister for Environment and Water;
• Minister for Transport, Infrastructure and Local Government;
• Peninsula Ports Pty Ltd; and
  
• South Australia Native Title Services.
  

The purpose of the ILUA is to provide consent for the construction and operation of the Port Spencer grain shipping facility.

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

Background to the Agreement

At the signing of the ILUA in Port Lincoln, chair of Peninsula Ports Pty Ltd, John Crosby acknowledged that the agreement was the first of its kind to include Indigenous share ownership in a South Australian grain port facility (Grain Central).

"The Barngarla people having ownership of this project is important, as it recognises and respects us as the first people for the area", said the chair of the Barngarla Determination Aboriginal Corporation, Jason Bilney.

The new Port Spencer grain facility has a targeted annual grain throughput of 1 million tonnes. The project's breakeven throughput is estimated as 350,000 tonnes (Grain Central).

Details of the Agreement

Commencement and Termination:

The ILUA is binding as a contract from the date when signed by all the parties. It has effect as an ILUA upon registration.

It will continue unless any of the following circumstances occur:

• if the ILUA is not registered within 12 months of being signed by all the parties, or on any other date that the parties mutually agree to in writing;
• if Peninsula Ports Pty Ltd is wound up or ceases to operate Project and does not assign its interest under this ILUA within 24 months;
• where the Barngarla Determination Aboriginal Corporation (BDAC)serves notice in accordance with clause 16.7 of the ILUA. This clause is not included in the Extract; or
• BDAC and Peninsula Ports Pry Ltd agree to terminate the ILUA in accordance with the terms of the ILUA.
  

Native Title Provisions:

Right to negotiate:

The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply to the acts agreed to under the ILUA.

Extinguishment:

The non-extinguishment principle applies. This means that under s 24EB(3) of the Native Title Act 1993 (Cth) any of the activities authorised under this ILUA which may be inconsistent with native title rights and interests do not extinguish those rights and interests, instead they are revived when the activities are finished.

Future act provisions:

The BDAC and the Barngarla People consent to the doing of all acts necessary for the construction and operation of a port facility exclusively for the shipment of grain. This includes:

• a rock causeway, jetty, and wharf of up to 620 metres in length plus adjacent navigation aids and mooring structures;
• bunker, silo, and related grain handling facilities to store grain, including the unloading of trucks and the loading of ships; and
• facilities for administration, roads and drainage, maintenance related to the grain operations at Port Spencer.

The parties acknowledge that the port facility project may require:

• regulations be made under the Harbours and Navigation Act 1993 (SA) (HBA) to declare part or all of the ILUA area as a harbour, or port;
• the Minister for Transport entering into a Port Operating Agreement in accordance with Division 1 of Part 5 of the HBA;
• the grant or renewal of a lease or leases over the part of D78441AL25 (CR6029/386) over which native title exists, and over the land and water that, within the meaning of the HBA, is adjacent and subadjacent to it; and
• the granting of a certificate of title to the Minister of Transport in accordance with s 115A of the Real Property Act 1886 (SA) over portions of the adjacent and subadjacent land.

Native Title in the Agreement Area:

The ILUA is within the area of the native title determination Croft on behalf of the Barngala Native Title Claim Group v State of South Australia (No. 2) [2016] FCA 724 (NNTT file no.: SCD 2016/001; FCA file no.: SAD6011/1998).

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