Bardi Jawi Conservation Estate Indigenous Land Use Agreement (ILUA)

Buccaneer Archipelago

Registered on the Register of Indigenous Land Use Agreements on 9 June 2021. This is an authorised body corporate agreement under the Native Title Act 1993 (Cth).

The Bardi Jawi Conservation Estate Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth) (NTA), between:

• the State of Western Australia;
• the Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions;
• Department of Biodiversity,  Conservation and Attractions;
• Conservation and Parks Commission;
• Bardi and Jawi Niimidiman Aboriginal Corporation RNTBC; and
• Minister for Environment.

The ILUA allows for the creation and joint management of the Bardi Jawi Conservation Estate, comprised of the Bardi and Jawi Country Marine Park and the Swan Island Reserve, to protect this area for future generations.

The Native Title Representative Body for this area is the Kimberley Land Council Aboriginal Corporation (KLC).

About the Agreement

Among the first of its kind in Western Australia, this is one of three Marine Parks co-designed and co-managed with Traditional Owners (ABC News, 2022). Together, the Bardi Jawi, Mayala, and Maiyalam Marine Parks cover more than 600,00 hectares of the Buccaneer Archipelago (Government of Western Australia; Kimberley Land Council).

At the Marine Park opening in Ardyaloon in July, KLC CEO, Tyronne Garstone said 'This is a historic moment for the Bardi and Jawi, Mayala and Dambimangari people who have fought hard to secure native title recognition and continue to fight for protection of their land and sea country'.

Consultation and planning began in 2017, and the borders of the three marine parks will take effect on July 1, 2023 (Government of Western Australia; ABC News, 2022).

'The way in which these marine parks have been do-designed means important cultural areas, heritage and marine life will be protected in a way that enables both sustainable and customary recreational and commercial use' said KLC CEO, Tyronne Garstone (Kimberley Land Council).

'For the first time in the State's history Indigenous knowledge has been central to the design of a marine park. These parks are at the forefront of sea country management; combining traditional ancient wisdom with modern environmental management' (Kimberley Land Council).

Indigenous ranger groups are central to the protection and management of this sea country and have demonstrated increasing capacity within traditional governance and knowledge structures whilst collaborating with other non-Indigenous organisations and stakeholders (Kimberley Land Council).

KLC Land and Sea Management Unit Manager, Daniel Oades, remarked that in the years ahead, the KLC will continue to support Indigenous ranger groups and the Government towards developing 'best practice Joint Management' of sea country (Kimberley Land Council).

Bardi Jawi Niiman Aboriginal Corporation chairman Kevin George said that the parks enabled Traditional Owners to care for their country the traditional way (Fierra Surrao, 2022).

Details of the Agreement

Commencement and Termination

The ILUA commenced on 9 June 2021, that is the date it was registered on the Register of Indigenous Land Use Agreements. It has effect as a contract when signed by all parties.

It continues indefinitely subject to termination if:

• it is not registered on the Register of Indigenous Land Use Agreements;
• all parties agree so in writing;
• it is revoked in accordance with the NTA;
• it is removed from the Register of Indigenous Land Use Agreements under s 199C of the NTA; or
• a replacement agreement comes into effect in accordance with clause 19.6 of the ILUA (this clause is not publically available).

Native Title Provisions

Right to negotiate

The parties agree that the right to negotiate provisions of the NTA do not apply to the doing of the agreed future acts in the ILUA area.

Extinguishment

The parties agree that the non-extinguishment principle applies. This means that under 24EB(3) of the NTA 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 parties agree to the Bardi Jawi Country Marine Park Transaction as follows:

• the creation of the Bardi Jawi Country Marine Park as a class A reserve for the purpose of a Marine Park under s 13 of the Conservation and Land Management Act 1984 (WA) (the CALM Act). The Bardi Jawi Country Marine Park is comprised of the Subtidal Area (seaward of the low water mark and excluding all onshore plants) and the Intertidal Area (seaward of the high water mark and landward of the low water mark including all onshore plants). The Bardi Jawi Country Marine Park is to be vested in the Conservation Commission of Western Australia under section 7 of the CALM Act and a future change to vest it jointly with the Aboriginal body corporate.

The parties also agree to the doing of every act necessary to support the Bardi Jawi Country Marine Park Transaction including:

• the granting of any tenure or licence in relation to an area that is wholly or partly within the ILUA area;
• the exercise of rights or obligations created under the Conservation and Land Management Act 1984 (WA) or the Biodiversity Conservations Act 2016 (WA) and any regulations made under those acts; and
• the exercise of rights or obligations created under any other applicable legislation as a consequence of the creation of the Dambimangari Country (Buccaneer Archipelago) Marine Park; and
• the creation of management plans for the Dambimangari Country (Buccaneer Archipelago) Marine Park.

The parties further acknowledge that no consents are required under the NTA in relation to the creation of the Swan Island Reserve under the CALM Act, which is not located within the ILUA Area, for the purpose of the conservation of flora and fauna.

See the Extract attached below under documents for further information.

Native Title in the Area

The ILUA is within Bardi and Jawi Country, as defined by the Federal Court in Sampi v State of Western Australia (No 2) [2005] FCA 1716.

Related Entries

References

Documents

Glossary