Girramay/Cassowary Coast Regional Council Indigenous Land Use Agreement (ILUA)
|25 May 2010
|Indigenous Land Use Agreement (ILUA) (Native Title Act)
|The ILUA area covers approximately 14 square kilometres of land variously distributed around (and predominantly north of) Cardwell. Some parts of the agreement area are located in the vicinity of Bilyana and Jumbun. Parts of the agreement area also bisect Bruce Highway. The agreement area is located within the jurisdiction of the Cassowary Coast Regional Council.
|Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 25 May 2010. This is an Area Agreement under the Native Title Act 1993 (Cth).
|National Native Title Tribunal File No. QI2009/064.
|Access | Consultation | | Native Title
|The Girramay/Cassowary Coast Regional Council Indigenous Land Use Agreement was agreed between:
- Cassowary Regional Council
- Girramay People Aboriginal Corporation and
- Mr Abraham Muriata on behalf of the Girramay People.
The ILUA was developed to accompany the consent determination in Abraham Muriata on behalf of the Girramay People v State of Queensland & Ors (unreported, FCA, 10 December 2009, Dowsett J). This determination found that the Girramay people held non-exclusive native title rights and interests over 16 parcels of unallocated State land stretching from Cardwell to Bilyana.
The ILUA clarifies how the parties’ rights and interests established in the consent determination are to be carried out in practice. The consent determination was conditional on the registration of this ILUA on the National Native Title Tribunal Register.
In particular the ILUA provides consent for
- the continued operation, use and maintenance of specified infrastructure;
- the doing of specified future acts;
- the construction or carrying out of certain works or activities.
|Consent for the continued operation, use and maintenance of specified infrastructure
The parties consent to the continued operation, use and maintenance of Council 'Non-Extinguishing Infrastructure'. They also consent to the use of land on which such infrastructure is built or land adjacent to the infrastructure.
Infrastructure will be deemed to be 'Non-Extinguishing Infrastructure' where:
- it was constructed on or before the commencement date of the ILUA (25 May 2010)
- it was not validly constructed on or before 23 December 1996 (the date of the decision in The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors  HCA 40); and
- does not constitute a public work (as defined in the Native Title Act 1993 (Cth)).
Council infrastructure means infrastructure used by the Council for a public purpose (in that it enables the Council to meet its statutory or other rights, interests duties and obligations).
Consent for the doing of specified future acts
The parties consent to the doing of 'Approved Future Acts'. Future Acts will become Approved Future Acts where they meet a set of procedural steps. The steps are listed below:
- The Council must provide a 'Proposed Activity Notice' to the native title holders
- Within a specified time-frame, the native title parties must provide a 'Concurrence Notice' providing consent for the doing of the work or activity. The native title parties may alternatively provide a 'Refusal Notice' within the same time-frame, in which case the work or activities cannot immediately commence.
- Where the native title parties fail to provide either notice within the requisite time-frame, consent will be deemed to have been given.
Where a 'Refusal Notice' has been provided by the native title parties, the Council may seek consent for the performance of the relevant work or activity by lodging a 'Revised Activity Notice' with the native title parties.
Consent for the construction or carrying out of certain minor works or activities
The parties consent to the construction or carrying out of 'Minor Works or Activities' by agents, employees or contractors of the Council. Such works or activities are listed at Schedule 3 to the ILUA and include:
- the construction or continued operation of Council infrastructure to ensure the safety of people and property which is subject to an immediate threat
- tree lopping in and around such infrastructure
- repairing such infrastructure
- reinstating any destroyed infrastructure
- inspecting such infrastructure
- maintaining such infrastructure
- fencing or barricading such infrastructure
- erecting sign posts
- accessing the agreement area with any equipment reasonably necessary for the performance of the abovementioned tasks.
The completion of all such 'Minor Works or Activities' must meet certain conditions, detailed in Schedule 3 of the agreement. Schedule 3 of the agreement has not been provided with the National Native Title Tribunal Extract.
The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply.
Native Title in the ILUA Area
The ILUA area is located within the Determination Area of native title made in the proceeding Abraham Muriata on behalf of the Girramay People v State of Queensland & Ors (unreported, FCA, 10 December 2009, Dowsett J) by the Federal Court of Australia. Under the Native Title Act 1993 (Cth) any activity that may affect native title rights is defined as a ‘future act’ and must comply with the future act provisions of the Act in order to be valid. The ILUA entitles the parties to circumvent these provisions.