Gumbaynggirr Wenonah Head Indigenous Land Use Agreement (ILUA)

Wenonah Head, mid-north coast of NSW.

Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 26 July 2018. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Gumbaynggirr Wenonah Head Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth), between:

• Christine Witt, Marion Witt, Frances Witt, Laurie (Larry) Kelly and Richard Pacey as the registered native title claimant for and on behalf of the Gumbaynggirr People;
• Coffs Harbour and District Local Aboriginal Land Council (CH&D LALC); and
• Gumbaynggirr Wenonah Head Aboriginal Corporation.

The purpose of the ILUA is to provide for the making and performance of a conservation agreement over CH&D LALC lands, including the use of a management plan and management works. 

The Native Title Representative Body for this area is the Gumbaynggirr Wenonah Head Aboriginal Corporation.

Background to the Agreement 

This ILUA, together with the Gumbaynggirr (Boney) Settlement ILUA and an Aboriginal Land Agreement, were submitted alongside the claim in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 (Keen 2017).

Collier J understood this to be the first such agreement recognising commercial rights in NSW, and she congratulated the parties in their innovation in their use of the Native Title Act 1993 (Cth) (Keen 2017).

The two ILUAs and the Aboriginal Land Agreement were also submitted alongside the further claim in Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916, which was excised from Kelly.

The parties negotiated the two ILUAs and the agreement to address any uncertainties anticipated to arise for all parties and the public in relation to the exercise of native title and the co-existence of non-native title rights and interests (Kelly at [59]).

Details of the Agreement

Commencement and Termination

This ILUA was registered with the National Native Title Tribunal (NNTT) on 26 July 2018 and commenced on that date. The ILUA does not have a specified end date.

Native Title Provisions

Right to negotiate

The right to negotiate under Subdivision P, Division 3, Part 2 of the Native Title Act 1993 (Cth) applies.

Extinguishment

The parties agree that the non-extinguishment principle applies - this means that under s 24EB (3) of the Native Title Act 1993 (Cth) any of the activities authorised under this ILUA which may be inconsistent with native title rights and interests do not extinguish these rights and interests, instead they are revived when the activities are finished.

Future act provisions

The parties agree to the doing of certain acts, including:

1. Making or performing a conservation agreement in relation to the CH&D LALC lands, to the extent that it may be a future act, subject to the following conditions:

• CH&D LALC must ensure that the relevant government party is aware of the existence of native title in relation to the CH&D LALC lands, and
• if possible, the agreement must acknowledge the existence of native title, and
• the agreement must place the most minimal restrictions on native title, and
• the agreement must not place further unreasonable restrictions on native title beyond those set out in clause 11 of the ILUA (not excluded in the Extract), and
• CH&D LALC must give the Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC notice of its intention to enter the agreement and provide it with the proposed agreement, other than commercially confidential terms, and
• the Management Committee must approve of the terms of the agreement, as set out in clause 14.2(f), and
• if the agreement involves doing land management works, the Coffs Harbour Local Aboriginal Land Council must notify the Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC within 7 days of its intention to do the works, except in cases of emergency.

2. The use of a management plan for CH&D LALC lands, to the extent that it may be a future act, subject to the following conditions:

• the plan must not place further unreasonable restrictions on the exercise of native title rights on Coffs Harbour and District Local Aboriginal Land Council lands beyond those set out in clause 10 of the ILUA (not included in the Extract), and
• the Management Committee or Coffs Harbour Local Aboriginal Land Council must give the Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC notice of its intention to use the plan and must provide it with the plan, and
• the Management Committee must approve of the terms of the agreement, as set out in clause 15.2(e).

3. The doing of land management works, to the extent that it may be a future act, subject to the following conditions:

• the works must not place further unreasonable restrictions beyond those set out in clause 11 of the ILUA (not included in the Extract), 
• Coffs Harbour Local Aboriginal Land Council must give the Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC notice of intention to the doing of the works, except in cases of emergency.
• the works must be consistent with a management plan, if there is one.

See clauses 14-16 of the ILUA Extract for more information about future acts.

The non-exclusive native title rights and interests recognised in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 and Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916 are subject to and exercisable in accordance with the terms and conditions of this Agreement.

The non-native title rights and interests of CH&D LALC in Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916 operate pursuant to this Agreement.

The non-native title rights and interests of Coffs Harbour and District Local Aboriginal Land Council CH&D LALC in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 operate pursuant to this Agreement.

Native Title in the Agreement Area

The ILUA is within the area of the native title determinations Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 (FCA file no.: NSD6104/1998; NNTT file no.: NCD2017/004) and Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916 (FCA file no.: NSD1312/2018; NNTT file no.: NCD2019/003).

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