The Western Bundjalung Settlement ILUA was negotiated as a part of the proposed Western Bundjalung Part A consent determination and was later referenced as a part of the Western Bundjalung People Part B consent determination.
Commencement and Termination
The ILUA commences and is binding on the parties from the date it is signed by all the parties. It commenced as an ILUA, and in relation to the agreed future acts, upon registration on 12 July 2018.
The ILUA continues indefinitely, subject to sub-clause 2.3, which is not included in the extract. The ILUA may also come to an end by agreement from all parties in writing.
Native Title Provisions
Right to negotiate
The parties agree that the right to negotiate provisions of the NTA are unaffected by any specific future acts defined in Schedule E of the ILUA.
Beyond the areas in Schedule Two and specified Future Acts the non-extinguishment principle applies - This means that under s 24EB(3) of the NTA any such activity
which may be inconsistent with native title rights and interests does
not extinguish these interests; instead they are revived when the
activities are finished
Future act provisions
The parties agree that acts done prior to 23 December 1996, that were done invalidly due to the existence of native title, are valid.
The parties have also agreed to certain future acts that are categorised as:
- Emergency Acts;
- Acts of Remediation;
- Reservations of native title areas for a particular purpose;
- Renewals of leases, licences, permits etc; and
- low-level impact activities.
Schedule E defines what each of the types of acts entails and what must be done by parties to permit the act.
An Emergency Act is any of the following done regarding the native title area:
- fire suppression and prevention management activities;
- an act done urgently for public health or safety in response to a major natural disaster.
- the grant of an interest by a State agency to a third party for the purpose of occupying the land in response to a major natural disaster or emergency.
The State agency must, where reasonable, give written notice to the Ngullingah Jugun (Our Country) Aboriginal Corporation of any Emergency Act before doing the act. If circumstances do not permit written notice, the State agency must instead make all efforts to give verbal notice.
The native title holders are not entitled to compensation for an Emergency Act.
Before carrying out an Act of Remediation, the State agency must give notice in writing to the Ngullingah Jugun (Our Country) Aboriginal Corporation, where practical. If written notice is not possible then reasonable efforts must be made to give verbal notice instead.
If an Act of Remediation is not done under compulsion the State agency must provide written notice and consult the Ngullingah Jugun (Our Country) Aboriginal Corporation at a consultation meeting with the aim of reaching an agreement in writing which sets out:
- the nature and extent of the act;
- the method or methods to be used to do the act;
- the consent of the parties to the act and whether the act can be done;
- that the Non-Extinguishment Principle applies; and
- the signatures of authorised representatives of the Ngullingah Jugun (Our Country) Aboriginal Corporation and the State agency.
The native title holders are not entitled to compensation for an Act of Remediation.
A future act is an Act under Reservation if:
- an eariler act granted a valid authority under which the whole or part of the native title area was to be used for a particular purpose;
- the earlier act was valid;
- the earlier act was done by the State of New South Wales before 19 December 2011; and
- the act under a reservation is done in good faith under or in accordance with the reservation.
Otherwise, the NTA continues to apply.
If the Act under Reservation is;
- the construction or establishment of a Public Work; or
- the creation of a Plan of Management under the ILUA;
the relevant State agency must give written notice to the Ngullingah Jugun (Our Country) Aboriginal Corporation before the act is done.
The State agency must comply with the consultation requirements of the ILUA where the acts involve;
- environmental and assessment activities;
- the control of noxious or introduced species;
- pest animal control;
- Consultation and Low Level Clearing, but not Minor Clearing;
- Consultation and Low Level Excavation, but not Minor Excavation; or
- the erection of signage pertaining to Aboriginal Cultural Heritage.
The native title holders are entitled to compensation for an Act under Reservation.
A future act is a Permissible Renewal if:
- it is the renewal. re-granting or re-making, or the extension of the term of a lease, licence, permit, or authority (the original authority) that is valid;
- the original authority was granted on or before 23 December 1996;
- it takes place within 12 months after the termination or expiry of the original authority;
- if the original authority contained or was subject to a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders, the new renewal contains or is subject to the same condition; and
- the future act does not: confer a right of exclusive possession over any of the area covered by the original authority; or create a larger proprietary interest in the area; or create a proprietary interest over any of the area in the original authority where there wasn't a proprietary interest before; or permit mining or exploration.
If two or more leases, licences, permits, or authorities are granted in place of a single one then each of them is taken to be a renewal of the single leases, licences, permits, or authorities so long as the total area of the prior single one is not increased.
If a single lease, licence, permit, or authority is granted in place of two or more leases, licences, permits, or authorities then;
- the single grant is taken to be a renewal of the original authorities; and
- the previously stated requirements for renewals apply.
The relevant State agency must give written notice to the Ngullingah Jugun (Our Country) Aboriginal Corporation before doing the act. Ngullingah Jugun (Our Country) Aboriginal Corporation then has an opportunity to comment on or to discuss the act proposed.
The native title holders are entitled to compensation for Permissible Renewals.
For low-level future acts requiring notice in writing and consultation the State agency must provide written notice and consult the Ngullingah Jugun (Our Country) Aboriginal Corporation before doing an act if the act is part of a Forward Program of Work and involves;
- Regeneration or environmental assessment or protection activities;
- the control of noxious or introduced species;
- pest animal control;
- Consultation Level Clearing; or
- Consultation Excavation.
For low-level future acts requiring no notice a State agency may do an act without providing notice to the Ngullingah Jugun (Our Country) Aboriginal Corporation if the act involves;
- an activity that lasts for less than 24 hours;
- the maintenance or repair of infrastructure, so long as it does not take place outside the area the infrastructure is situated;
- the maintenance and repair of Public Work, so long as it does not take outside the area where the Public Work is situated;
- Minor Excavation;
- Minor Clearing; or
- the maintenance and repairs of facilities for service to the public, so long as it does not take place outside the area the facilities are situated.
The State agency must provide the Ngullingah Jugun (Our Country) Aboriginal Corporation with a written list of all the acts done.
For low-level future acts requiring notice in writing a State agency must give written notice to the Ngullingah Jugun (Our Country) Aboriginal Corporation before doing an act if the act involves;
- works which require Low Level Excavation and/or Low Level Clearing;
- river reclamation works that are reasonably necessary for the protection of public health or safety;
- the grant of a licence or permit to hold cultural, sporting, recreational, educational or civic event that lasts for more than one day and less than seven days;
- the grant of a bee keeping interest; or
- tree lopping and other Low Level Clearing.
The Ngullingah Jugun (Our Country) Aboriginal Corporation has an opportunity to comment on or discuss the act.
Native Title in the Agreement Area
The ILUA area is within the area of the native title determination Western Bundjalung People Part A (FCA file no.: NSD2300/2011, NNTT file no.: NCD2017/002 .