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Kenbi Indigenous Land Use Agreement

Category: Agreement
Date: 2 February 2017
Sub Category:Future Act Agreement (Native Title Act) | Indigenous Land Use Agreement (ILUA) (Native Title Act)
Place:

Cox Peninsula 

State/Country:Northern Territory , Australia
The Extract from the Register of Indigenous Land Use Agreements describes the area covered by this agreement as 122 sq km located on the Cox Peninsula, approximately 3km north of Belyuen. For details of the area see 'Annexure C - Map of ILUA area' of the ILUA, attached below under documents. The area is within an un-incorporated area of the Northern Territory. 
Legal Status:

Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 26 February 2021. This is an authorised area agreement under the Native Title Act 1993 (Cth).

Legal Reference: National Native Title Tribunal file no.: DI2017/001
Subject Matter:Land Settlement | Native Title | Native Title - Extinguishment
URL: http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=DI2017/001
Summary Information:

The Kenbi Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth), between the Northern Territory of Australia and the Northern Land Council. 

The purpose of the ILUA is to obtain the consent of the Northern Land Council to the extinguishment of native title over the agreement area.

The Native Title Representative Body for this area is the Northern Land Council.

Detailed Information:

Background to the Agreement 

The Kenbi Indigenous Land Use Agreement (the Kenbi ILUA) formed a key aspect of the 2016 settlement of the Kenbi Land Claim over the Cox Peninsula (Howey, 2016).

The Kenbi Land Claim was filed in 1979 and is Australia's longest running indigenous land claim (Howey, 2016). It was settled with the Northern Territory government in 2016 and culminated in the granting of more than 50,000 hectares as Aboriginal land under the Land Rights Act 1976 (Cth) and over 10,000 hectares to the newly formed Kenbi Land Trust.

The Kenbi Land Trust was established under the Kenbi Land Trust Act 2011 (NT) to hold the freehold title over the land for the benefit of Larrakia and Belyuen traditional owners. 

The Kenbi ILUA was filed with the National Native Title Tribunal in 2016 and then varied in February 2017. It was unable to be registered however until 26 February 2021, due to a legal challenge to the Northern Land Council's (NLC's) method of certifying it (See Quall v Northern Land Council 2018 FCA 989 and Northern Land Council v Quall 2019 FCAFC 77).  Ultimately, the High Court decided that the NLC had validly certified the Kenbi ILUA allowing for its registration (Northern Land Council and Anor. v Quall and Anor 2020 HCA 33). 

Details of the Agreement

Commencement and Termination

The agreement commenced on 2 February 2017 and continues in perpetuity. The ILUA is binding from that date. It has effect as an ILUA, and in relation to the agreed future acts, from its registration date of 26 February 2021. 

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 in relation to any and all of the relevant acts under the agreement. 

Extinguishment

Under this ILUA the parties agree to the extinguishment of any native title in relation to the ILUA area, and that the surrender of native title will occur upon the doing of any of the relevant extinguishing acts. 

Future act provisions

The parties agree to the doing of certain acts, including the surrender to the State of any native title in relation to the ILUA agreement area for the purposes of ss 24EB(1) and 24EBA of the Native Title Act 1993 (Cth). The future acts within the agreement encompass Relevant Extinguishing Acts, which entail the surrender of native title, as well as Relevant Non-Extinguishing Acts. 

Relevant Extinguishing Acts include:

  • the grant of freehold title over sections 261, 262 and 263 to the Larrakia Development Corporation;
  • the incorporation of section 264 into the Cox Peninsula Road;
  • the grant of freehold title in section 33 to the Power and Water Corporation; and
  • any and all other acts necessary and incidental to the above, provided such acts have no greater effect on native title than the acts described above.  

Relevant Non-Extinguishing Acts include:

  • the transfer of the Commonwealth's freehold estate over sections 261, 262, 263, 264, and 241 to the Northern Territory;
  • the grant of Kenbi freehold title (in the same meaning as the Kenbi Land Trust Act 2011 (NT)) over sections 241, 244, and 245 to the Kenbi Land Trust;
  • the grant of an estate, interest, licence, permission or authority in the Kenbi Land Trust Land to any person for any purpose under section 13(2) of the Kenbi Land Trust Act 2011 (NT);
  • the transfer of the Commonwealth's freehold estate in section 33 to the Northern Territory; and 
  • any and all other acts necessary and incidental to the above, provided such acts have no greater effect on native title than the acts described above. 

Related Entries

Organisation
  • National Native Title Tribunal
  • Northern Land Council - Signatory
  • Northern Territory of Australia - Signatory
  • Larrakia Development Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • Kenbi Land Trust Act 2011
  • Case Law
  • Kenbi Land Claim
  • Northern Land Council v Quall [2019] FCAFC 77
  • Northern Land Council & Anor v Quall and Anor [2020] HCA 33

  • References

    Journal Article
    Kirsty Howey (July/August 2016) Inside the Kenbi Land Claim Negotiations: Watersheds and Waterlogs
    Case Law
    High Court of Australia Northern Land Council & Anor. v Quall & Anor. [2020] HCA 33

    Documents

    Document
    National Native Title Tribunal Extract from the Register of Indigenous Land Use Agreements for DI2017/001 as at 26/2/2021 (Kenbi ILUA) - ( PDF | PDF | PDF)

    Glossary

    Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Party to an Indigenous Land Use Agreement (ILUA) (Australia) | Aboriginal and Torres Strait Islander (Australia)

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