Ergon Energy and Budjiti People Indigenous Land Use Agreement (ILUA)
|Date: ||6 November 2015|
|Sub Category:||Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Place:||Located between Thargomindah and Cunnamulla|
|The area subject to this agreement covers about 16,700 sq km located on the New South Wales and Queensland Border, between the townships of Thargomindah and Cunnamulla.|
|Legal Status: ||Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 6 November 2015. This is an Area Agreement under the Native Title Act 1993 (Cth).|
|Legal Reference: ||National Native Title Tribunal File No.: QI2015/022|
|Subject Matter:||Housing, Construction and Infrastructure | Native Title|
|Summary Information: |
|Ergon Energy and Budjiti People Indigenous Land Use Agreement (ILUA) is an Area Agreement between:
- Ergon Energy (applicant); and
- Dinny McKellar, Philip Eulo, Elizabeth McNiven, Margaret Hearn, Melissa Bryan and Carolyn Hooper on behalf of the Budjiti People QUD53/2007.
The purpose of this Agreement is to provide consent for the activities outlined within the Agreement.|
|Detailed Information: |
This ILUA was registered with the Register of Indigenous Land Use Agreements on 6 November 2015.
The Extract does not provide a specific start or end date for the Agreement.
The Extract states that the Agreement is a binding contract, enforceable by and against all parties, as of the execution date.
From the registration date (being 6 November 2015) the Agreement is an Indigenous Land Use Agreement and is binding upon all Parties, the Native Title Claim Group and all persons who assert to hold native title in the Native Title Agreement Area.
Native Title Provisions
The Right to Negotiate
The Agreement Extract states at clause 11.3 that Part 2 Division 3 Subdivision P of the Native Title Act (in respect of the right to negotiate) does not apply to any future act to which the Parties have consented in this Agreement.
The Agreement Extract states that the parties consent to doing any particular future act or class of future acts in this Agreement.
Future Acts under Native Title Act section 24KA (concerning facilities for services to the public)
For any future acts which are not low impact native title activities, and are covered by section 24KA of the Native Title Act, Ergon Energy will give written notice to the Native Title Party in accordance with section 24KA of the Native Title Act.
The Parties must also agree that the future act is not done under this agreement but is covered by Section 24KA of the Native Title Act.
Future acts covered by section 24KA of the Native Title Act includes the construction, operation, use maintenance or repair of any of the things listed below, if the future act does not prevent native title holders from having reasonable access to that thing:
(a) a road, railway, bridge or other transport facility (other than an airport or port);
(b) a jetty or wharf;
(c) a navigation marker or other navigational facility;
(d) an electricity transmission or distribution facility;
(e) lighting of streets or other public places;
(f) a gas transmission or distribution facility;
(g) a well, or a bore, for obtaining water;
(h) a pipeline or other water supply or reticulation facility;
(i) a drainage facility, or a levee or other device for management of water flows;
(j) an irrigation channel or other irrigation facility;
(k) a sewerage facility, other than a treatment facility;
(l) a cable, antenna, tower or other communication facility;
(la) an automatic weather station;
(m) any other thing that is similar to any one or more of the things mentioned in the paragraphs above.
Future Acts under the Agreement
The Agreement Extract States that subject to clause 13.2, the Parties authorise and consent to the doing of any future act (except for the surrender of native title) after the registration date over any part of the Agreement Area.
Clause 13.2 of the Agreement states that consent for future acts requires the entity holding the Aboriginal land giving written consent to the future act.
Low Native Title Impact Activities
Any low native title impact activities which fall under the activities in section 24KA of the NTA (listed above) do not require notice in accordance with section 24KA of the NTA.
Low native title impact activities means one or more of the following activities:
(a) inspecting, maintaining, repairing and reinstating electricity infrastructure or access tracks;
(b) tree lopping and tree clearing:
(i) in the immediate vicinity of electricity infrastructure;
(ii) required for the safe operation or use of the electricity infrastructure; or
(iii) required for public health or safety;
(c) installing street light poles and service / intermediate poles that are tied into the existing power line system in urban areas / town precincts;
(d) the performance of statutory duties and responsibilities under the Electricity Act , Electricity Regulation or other laws;
(e) the grant of a lease, easement, permit, licence or other interest to Ergon Energy from the owner or occupier of land for a use of or incidental to the performance of statutory duties and responsibilities under the Electricity Act, Electricity Regulation or other laws;
(f) the exercise by Ergon Energy of any rights or obligations under any way-leave agreement, easement, license, permit or other interest over land or waters;
(g) accessing the Native Title Agreement Area for the purpose of undertaking any low native title impact activity.
Native Title in the Agreement Area
The Agreement area falls within the Budjiti People native title application QUD53/2007.
In McKellar on behalf of the Budjiti People v State of Queensland  FCA 601 the Federal Court of Australia determined that non-exclusive native title rights and interests which exist in relation to the Determination Area are held by the Budjiti People.