Australian Local Government Association

Issues paper No.4

Indigenous land use agreements (ILUAs) involving local government

Ed Wensing FAPI MPIA
May 2002

Contents

• Introduction
• Background Information on ILUAs
  • What is an Indigenous Land Use Agreement?
  • What is the role for ILUAs in resolving native title matters?
  • When can ILUAs be made?
  • Can agreements be made outside the Native Title Act 1993 (Cth)?
• ILUAs and Native Title Determinations
  • Can an ILUA determine whether or not native title exists for an area?
  • Are there examples of such ILUAs involving local government?
• ILUAs and Future Acts
  • What is a future act
  • Valid and invalid future acts
  • What are the processes?
• ILUAs and Confidentiality Clauses
  • Information in public notices and on the Register of ILUAs
  • Confidential Information
  • Some consequences of confidentiality
• ILUAs and Compensation
  • Under what circumstances are native title holders entitled to compensation?
  • How may compensation be paid?
  • Does Council have to pay compensation for carrying out future acts that validly or invalidly affect native title?
  • Compensation within an ILUA
• Who Should Council Negotaite ILUAs with?
• Other Issues To Consider
• Who Can Council Contact for Assistance?
• Conclusions
• References
• Appendix A: What is the best context for negotiating agreements

1. Introduction

What is involved for local government councils in developing an Indigenous Land Use Agreement (ILUA)?

Any local council for the area to be covered by an ILUA may, if appropriate, become a party to the ILUA. If it is not a party, it is entitled to receive notice of the ILUA when an application has been made for an ILUA to be registered.

ILUA's may initially appear to local councils be too expensive and time consuming on a project-by-project basis. However, there are a wide range of opportunities for local councils to develop constructive relationships with native title holders in their area including through Indigenous Land Use Agreements. These opportunities are worthy of closer consideration and are the preferred approach to resolving any native title matters.

This paper will provide some background information on ILUAs involving local councils and examine:

• the role for ILUAs and whether agreements can be made outside the Native Title Act 1993 (Cth)
• the use of ILUAs as a part of the settlement of native title determination applications (or claimant applications)
• the relevance of ILUAs to future acts under the Native Title Act 1993 (Cth)
• the implications of confidentiality clauses in ILUAs for the implementation of ILUAs and the value of providing templates which might provide guidance to others who wish to negotiate similar agreements
• the circumstances in which ILUAs will (or may not) limit compensation payable to native title holders

This paper should be read in conjunction with:

• Issues Paper No.3
• steps 5 and 6 of the Action Plan in the Working with Native Title Guide
• the Working out Agreements Guide

The Guides can be purchased from ALGA. An order form can be downloaded from Publications.



2. Background information on ILUAs

2.1 What is an Indigenous Land Use Agreement?

An Indigenous Land Use Agreement is a voluntary agreement made under the Native Title Act 1993 (Cth) between people who hold, or claim to hold, native title in an area and other people who have, or wish to gain, an interest in that area. They are negotiated agreements, they are inclusive not exclusive, and when registered they are binding on all who hold or may hold native title for the area the subject of the agreement (Wade 2001:1).

The Native Title Act 1993 (Cth) specifies three types of ILUAs:

• Body Corporate Agreements (ss 24BA-24BI)
• Area Agreements (ss 24CA-24CL)
• Alternative Procedure Agreements (ss 24DA-24DM)

Even prior to a determination of native title , depending on the type of ILUA, the parties may agree to recognise long standing traditional rights and interests for an area or to the surrender of native title for an area. They may agree on the traditional rights and interests, how any rights and interests in the area are to be exercised, to the relationship between traditional rights and interests and other rights and interests in relation to the area and which issues are covered or not covered by the agreement. In this way, ILUAs are able to deal with social, economic, environmental and cultural matters.It is important to note that only the Federal Court, a recognised state/territory body or the High Court can make an approved determination of native title.

All three kinds of ILUAs may deal with:

• the doing, or doing subject to conditions (which may be about procedural matters) of future activities (including advance permission for entire classes of proposed future acts)
• validating future acts and acts affecting native title that have already been done prior to the agreement being entered into (other than intermediate period acts)
• withdrawing, amending or varying native title applications to the Federal Court
• the relationship between native title and non-native title rights and interests
• the manner of exercise of native title and non-native title rights and interests
• compensation for past acts, intermediate period acts or future acts; or
• any other matter concerning native title rights and interests in relation to the area

Subject to some legislative constraints, the content, duration and implementation of ILUAs are at the discretion of the parties involved. Parties are not obliged to develop an agreement, nor are they obliged to have it registered. An unregistered agreement can have effect as a common law contract. For more information about the effect of registration of an ILUA, refer to the Working with Native Title Guide (p.209) or to the National Native Title Tribunal's website.

The Issues Paper No.3 and the Working with Native Title Guide provide further information about the three different types of ILUAs.

2.2 What is the role for ILUAs in resolving native title matters?

Native title is subject to the laws of the Commonwealth and state or territory, including town planning schemes, health and building by-laws and environmental protection legislation, and is also subject to private rights validly granted under Commonwealth and state or territory laws. The Native Title Act 1993 (Cth), however, is silent on vital questions about the practical ways in which native title can be exercised and enjoyed on the ground. Approved determinations under the Native Title Act 1993 (Cth) set out the nature and extent of the native title rights and interests, the nature and extent of other rights and interests in the area and the relationship between those rights. This means these matters need to be determined by agreements setting out the principles and rules for managing the relationship between native title rights and interests, public laws and other private rights.

Therefore, negotiations between native title holders, registered native title claimants, the relevant state or territory governments, relevant local councils and other interest holders (for example, lessees or licence holders) will be necessary about the way in which native title rights and interests, public laws and private rights can be exercised on the ground.

ILUAs have been inserted into the Native Title Act 1993 (Cth) primarily as a problem-solving device. ILUAs can:

• reduce delays and costs
• reduce separate future act negotiations to one process
• be used to develop harmony within a community
• be used as a way of resolving issues between groups of Indigenous people
• incorporate joint management arrangements and access rights
• deal with the use of resources, the conduct of cultural matters, site management and other procedural matters
• deal with matters before or after a judicial determination of native title

2.3 When can ILUAs be made?

At any time. The Native Title Act 1993 (Cth) does not set any time constraints on when an ILUA needs to be developed. They can be developed before or after a determination of native title by the Federal Court.

The best time is when the parties perceive there is a need for an on-going relationship and that an agreement will be mutually beneficial. Some suggestions about the best context for developing agreements of any kind are included in Appendix A.

2.4 Can agreements be made outside the Native Title Act 1993 (Cth)?

Yes, agreements can be made outside the Native Title Act 1993 (Cth) to progress native title matters. However, it is important to understand that agreements outside the Native Title Act 1993 (Cth) operate like any other kind of contract and will not have the legislative protection of the Native Title Act 1993 (Cth).

Recognition of connection with, and an acknowledgement of, prior ownership of certain lands or waters according to traditional laws and customs may be an important consideration in some circumstances. For example, in progressing with the development of a planning and land management strategy or in areas where there are sites of cultural significance to Aboriginal or Torres Strait Islander people, and some form of recognition of prior ownership or interest under traditional law and custom may be necessary in the interests of good governance.

An example of such an agreement is the 'Native Title Process Agreement' between the Redland Shire council and the Quandamooka Land council Aboriginal Corporation for North Stradbroke Island (Minjerribah). Notable features of this agreement include the mutual statements of recognition and respect for each other's rights and responsibilities in relation to the Island and the joint approaches to developing a comprehensive planning and land management strategy for the Island.



3. ILUAs and Native Title determinations

3.1 Can an ILUA determine whether or not native title exists for an area?

Agreements cannot of themselves determine whether or not native title exists for an area. The existence or otherwise of native title can only be determined by way of a consent determination or contested determination in the Federal Court.

A recognised state/territory body is also able to make an approved determination of native title, but only where that body has been approved as a recognised body by the Federal Attorney-General and provided the Attorney-General's approval has not been disallowed by either House of Federal Parliament. Only South Australia has established a recognised state/territory body. (The Supreme Court of SA and the Environment, Resources and Development Court. However, no native title determination applications have been lodged with these courts.)

However, agreements can be made about all kinds of matters without having to determine whether or not native title exists for an area. A native title determination is not a pre-requisite for the negotiation of an agreement. Agreements can be made at any time, prior to or after a determination. They are a useful interim or permanent measure for providing clarity in relation to native title matters. Where there is a determination of native title for an area, the determination can form the basis of an agreement.

The Native Title Act 1993 (Cth) expressly provides that ILUAs may be about, amongst other things:

• the relationship between native title rights and interests and other rights and interests in relation to the area; or
• the manner of exercise of any native title rights and interests and other rights and interests in relation to the area

According to Neate (2001:15), recent consent determinations of native title highlight the relationship between ILUAs and the resolution of claimant applications.

The issues that parties need to consider include what type of ILUA is appropriate and when, in the chronology of events surrounding the determination of native title, they should be executed and registered. At least three approaches can be considered:

• an ILUA might be negotiated and registered before a consent determination is made; or
• a consent determination may be made conditional upon the registration of an ILUA; or
• a consent determination may be made with the agreement of the parties that an ILUA will be executed immediately after the determination and the registration of the prescribed body corporate (Neate 2001:16)

All of these approaches have been used, some of them involving local councils.

3.2 Are there examples of such ILUAs involving local government?

Two examples are worthy of mention.

The first example involves an ILUA made prior to a determination of native title by the Federal Court. The Kaureg People made an area agreement with the Torres Shire council and the state of Queensland to deal with matters that had to be settled before the Federal Court could make the native title determinations over seven islands in the Torres Strait. The Kaureg people agreed that the state and the council could do a range of things. This was necessary to sort out the legal basis of things that had not been done properly in the past, and to make sure that developments for the benefit of the wider community could take place in the future. (Information about this ILUA and the determination is contained in a booklet published by the NNTT and is also available on the NNTT's website.)

The second example involves the registration of an ILUA after a determination of native title by the Federal Court. The Bar-Barrum People's determination, covering two parcels of reserve land and 25 parcels of unallocated state land to the west and south-west of Herberton in far north Queensland, involves a body corporate agreement between the Bar-Barrum Peoples and the Herberton and Mareeba Shire councils. The agreements with the Shires provide for the protection of, and access to, council infrastructure and for the native title holders to give 'reasonable consideration' to any request for public access. (Information about these agreements is contained in a booklet published by the NNTT and is also available on the NNTT's website.)

Other types of agreements between native title holders or applicants are also possible, including agreements that do not need to be registered. For example, the Tjurabalan People, the Shire of Halls Creek and the Western Australian Government have signed a 'Deed of Agreement' that deals with access to the area the subject of the agreement by the state and Shire officers in the bona fide performance of their duties.

What these examples demonstrate is that agreements involving local councils can be made at any time and that they can be part of a determination of native title by the Federal Court, clarifying council's roles and functions as well as its obligations towards the native title holders.



4. ILUAs and future acts

One of the most important reasons for negotiating an ILUA is to ensure that council's future acts are valid.

4.1 What is a future act?

A future act is an act that is neither a past act nor an intermediate period act. It is an act in relation to land or waters that either:

• consists of the making, amendment or repeal of legislation on or after 1 July 1993, that affects native title; or
• any other act done by a Government or person on or after 1 January 1994, that affects native title

All future acts have three essential characteristics:

• the action is to occur after 23 December 1996
• the action is in an area where native title does (or may) exist
• the action affects (extinguishes, impairs, or in some way limits) the continued existence or enjoyment of native title

For an act to be a future act the act must consist of the making, amendment or repeal of legislation on or after 1 July 1993, or if it is any other act it must take place on or after 1 January 1994. However, if native title does not exist because of certain valid past acts or certain valid intermediate period acts or previous valid future acts or where the extinguishment of native title has been has been confirmed under the Native Title Act 1993 (Cth) (ss23A to 23JA), then the future act provisions of the Act do not, indeed cannot, apply.

Future acts may involve some kinds of council activities, such as: gravel pits; the provision of facilities for services to the public; the grant or renewal of a lease or licence; low impact future acts; the conferral of a right of exclusive possession to an area; excavation or clearing; construction; the installation/construction of sewerage disposal facilities, waste disposal; or the storage or disposal of hazardous substances. Some kinds of future acts, however, are not done by councils but by the Commonwealth Government, state or territory Governments or by councils under a delegated authority from a state/territory agency or department.

4.2 Valid and invalid future acts

Future acts that affect native title are classified as valid or invalid under the Native Title Act 1993 (Cth) because of the existence of native title. In this context 'valid' means 'having full force and effect'.

The Act provides processes, in tandem with existing land management systems, whereby future acts that take place over land or waters where native title exists or may exist are valid. If council does not follow these processes, the particular future act may be rendered invalid, to the extent that it affects native title, at a later date. If an act is declared or found to be invalid in terms of its effects on native title, the native title holders may be entitled to compensation, damages or any other remedy, such as an injunction.

If an act does not affect native title in any way, the future act regime will not apply.

For a future act to be valid to the extent that it affects native title, it must come within one of the future act provisions in the future act hierarchy (s24OA of the Native Title Act 1993 (Cth)). If a particular future act does not fall within any of the future act provisions, the only way of ensuring validity is to negotiate an ILUA.

In broad terms:

• a future act will be valid if the parties to an ILUA consent to the act being done
• a future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of an ILUA

4.3 What are the processes?

In situations where the native title holders or claimants are known, parties proposing future acts have the option of either:

• developing an Indigenous Land Use Agreement (ILUA); or
• following the other provisions under the Native Title Act 1993 (Cth) for future acts

Under the Act, the provisions relating to ILUAs take precedence over all other procedures for dealing with future acts. If council can negotiate an Indigenous Land Use Agreement (ILUA) with the registered native title body corporate and/or registered native title claimants about a future act or classes of future acts, the subsequent provisions for dealing with future acts do not apply.

In other words, the complex processes for dealing with future acts in the Native Title Act 1993 (Cth) can be set aside and the parties can seek to work it out directly between themselves.

ILUAs about future acts may be included in the agreements by which a claimant application is resolved.

For information on what to do in situations where the native title holders are unknown refer to Issues Paper No.6. For information on how to follow the other provisions for future acts under the Native Title Act 1993 (Cth) refer to Issues Paper No.5.

Three ILUAs have been made about future acts and involving local councils. For example:

• One involving Cairns City council (Qld)
• Two involving Mackay City council (Qld)

The agreements involving Mackay City council relate to the establishment of a public recreation reserve and the construction of a surf life saving club on Crown land, and the agreement involving Cairns City council involves the resumption and reclamation of foreshore land for public and private development. While the terms of the agreements are confidential, the councils were able to reach agreement with the registered native title claimants about the doing of the future acts.



5. ILUAs and confidentiality clauses

5.1 Information in public notices and on the Register of ILUAs

Some of the details provided in the application for registration of an ILUA must appear in the public notice and on the Register of ILUAs.

The Native Title Act 1993 (Cth) provides that, upon receiving an application for the registration of an ILUA, and checking to ensure it complies with the requirements set out in the Act, the Registrar is required to notify the public and others that the parties have applied for registration. Those public notices must:

• describe the area covered by the agreement
• state the name and address of each party to the agreement
• include any statements made in the agreement regarding:
  • consent to the doing of future acts (with or without conditions)
  • exclusion of the 'right to negotiate' regime; or
  • (in the case of a body corporate agreement or area agreement) the surrender of native title
  • the validating of a particular future act or future acts (with or without conditions) that have been done invalidly; or
  • changing the effects on native title of an intermediate period act
• in the case of an area agreement or alternative procedure agreement, include a statement that any person claiming to hold native title has three months in which to object to registration
• in the case of an application for an area agreement that has not been certified by the representative body, include a statement that any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish to make a native title determination application

The Native Title Act 1993 (Cth) also provides what information must be on the Register, namely:

• a description of the area covered by the agreement
• the name of each party to the agreement and the address at which the party can be contacted
• if the agreement specifies the period during which it will operate, that period
• if the agreement includes any of the following statements:
  • that the parties consent to the doing of the particular class or classes of future act, with or without conditions; and
  • that it has been agreed that the right to negotiate is not intended to apply to those particular acts; or
  • that the native title rights and interests have been surrendered; or
  • agreeing to changing the effects on native title of an intermediate period act (in the case of body corporate or area agreements); or
  • agreeing to the validation of a future act (other than an intermediate period act) that has already been done invalidly, a reference to that fact; and
  • where the non-extinguishment principle applies (s24EBA(4))
• any other details of the agreement that the Registrar considers appropriate

This information cannot be kept confidential.

5.2 Confidential Information

(The following information is reproduced from Neate (2001b:19-20), with kind permission).

Parties to an ILUA can request that certain information, other than that specified above, be kept confidential. Consequently, as a general rule, any other information about the agreement need not appear on the Register and it is a matter for the parties to the agreement to determine whether some or all of the terms to the agreement are in the public domain. If parties would like any other information or documents to be kept confidential they should make this request when lodging the documents.

Parties may have different reasons for keeping at least parts of an agreement confidential. Project proponents, for example, might not want the amounts paid under the agreement or other benefits to the native title parties (such as the provision of employment, training or infrastructure) to be made known to their competitors or to be characterised as setting a benchmark (or even a floor) against which other agreements might be negotiated. Indigenous groups, while willing to make concessions to secure the agreement (including concessions about their native title rights and interests), might not want the extent of those concessions known to other groups or want the concessions to be characterised as having precedent value for subsequent negotiations with other groups.

The Registrar can, however, only keep the information confidential to the extent that the law allows. The Native Title Act 1993 (Cth) provides that a Registrar's notice of an alternative procedure agreement must state that, within the notice period, any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may obtain a copy of the agreement from the Registrar. An ILUA may be obtainable under the Freedom of Information Act 1982 (Cth) (unless certain exceptions apply) or by subpoena.

There may be other circumstances where the Registrar needs to release information about the agreement to another person. For example, a person who objects to the registration of an authorised ILUA may seek a copy of the ILUA on the basis that the objector is entitled to natural justice or procedural fairness in making the objection. Persons to whom procedural fairness is owed are entitled to a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests. In such a circumstance the Registrar may have a duty to release a copy of the ILUA application or the ILUA itself so as to provide the objector with the opportunity to make submissions in support of their objection. However, because many objections are likely to be made in relation to whether reasonable steps were taken to identify the persons who hold or may hold native title, rather than the terms of the agreement, the Registrar would not normally have to provide a copy of the agreement to an objector.

In any case, if an objection is made and the contents of the agreement are relevant to the possible withdrawal of the objection, it may be preferable for the parties (rather than the Registrar) to make a copy of the agreement available to the objector.

5.3 Some consequences of confidentiality

The consequences of keeping agreements confidential need to be taken into consideration.

For example, keeping some of the contents of ILUAs confidential could lead to practical problems in the long term if issues of enforceability arise. As noted earlier, a registered ILUA binds all persons holding native title in relation to any or all of the relevant land or waters, irrespective of whether they are parties to the agreement. Accordingly, it would be appropriate for at least those persons who are not parties but are bound by an ILUA to be made aware of its existence and the relevant provisions.

In addition, if agreements are expressed as confidential, their contents cannot be provided to other parties contemplating ILUAs as templates or precedents of what may be possible. The capacity of other parties affected by native title would be enhanced if parts, if not all, of each ILUA were to be accessible as an example of the options for dealing with a similar issue elsewhere or as a source of template clauses. Local councils everywhere are always keen to see how other councils may have dealt with similar situations.



6. ILUAs and compensation

6.1 Under what circumstances are native title holders entitled to compensation?

Compensation arises under several provisions of the Native Title Act 1993 (Cth) where native title may be adversely affected by various acts authorised by the Act. Native title holders (as distinct from claimants, registered or unregistered) are entitled to compensation for:

• the validation of past acts and intermediate period acts attributable to the Commonwealth, a state or territory; or
• the confirmation of extinguishment by previous exclusive possession acts or previous non-exclusive possession acts attributable to the Commonwealth, a state or territory; or
• valid future acts carried out in accordance with the provisions for future acts under Part 2, Division 3 of the Native Title Act 1993 (Cth), either by agreement with the native title holders or the other provisions for future acts, including future acts to which the 'right to negotiate' applies (i.e. a valid compulsory or arbitrated act); or
• certain other specified acts or circumstances, have resulted in 'any loss, diminution, or impairment or other effect of the act on their native title rights and interests' (s51(1). See also ss 18, 53)

The Native Title Act 1993 (Cth) expressly deals with compensation for valid or validated acts that affect native title. Native title holders would ordinarily be entitled to damages or any other remedies for invalid acts under the general law. The Federal Court may award damages or remedies in proceedings relating to the invalidity of such an act.

Council may be made liable for any acts that it carries out, which invalidly affect native title.

Any native title holder whose rights and interests are affected by certain valid acts may be entitled to compensation under the Native Title Act 1993 (Cth) if a state/territory law does not provide for sufficient compensation. The entitlement to compensation for valid acts done in accordance with the Native Title Act 1993 (Cth) is, in general terms, an entitlement to compensation 'on just terms' for any loss, diminution, impairment or other effect on their native title rights and interests. For some valid acts that affect native title, however, compensation is payable only if the 'similar compensable interest test' is satisfied. This means that if compensation is payable to ordinary title holders under the law authorising the act, any native title holders affected are entitled to compensation in accordance with the same criteria set out in that law.

The Native Title Act 1993 (Cth) provides for compensation applications to be made by a registered native title body corporate or a person or persons authorised by all the persons in a group who claim to be entitled to compensation. This is an application to the Federal Court for a determination of compensation for the effects of any valid acts on their native title rights and interests. In giving an order of compensation, the Federal Court must set the method (if any) for determining the amount or the kind of compensation, the method for dispute resolution, and the forms which compensation might take.

Generally, compensation will only be payable for valid acts after a determination has been made as to whom the native title holders are for an area. In relation to a compensation application for valid or validated past acts and intermediate period acts, valid future acts, and previous exclusive and non-exclusive possession acts, the Court will simultaneously determine who the native tile holders are for a particular area, if such a determination has not already been made. Compensation payable under Division 2 (validation of past acts), Division 2A (validation of intermediate period acts), Division 2B (confirmation of past extinguishment), Division 3 (future acts), or Division 4 (other provisione relating to native title) of part 2 of the Act must be made in accordance with Division 5 of Part 2 of the Native Title Act 1993 (Cth).

If so determined by the relevant Minister or the arbitral body, compensation may also be payable for future acts in relation to which the right to negotiate applies. In the course of the right to negotiate procedures, the relevant Minister or the arbitral body may make a determination about the doing of the future act subject to conditions. Such conditions may be about the payment of an amount for compensation to be held in trust. This is discussed in more detail in the ALGA's Working with Native Title Guide (pp 296-297).

Native title holders may also be entitled to compensation, damages or other common law remedies under the general law for invalid future acts that affect native title rights and interests. The Federal Court may award such compensation or damages in proceedings relating to the invalidity of the particular act.

Registered native title claimants are generally not entitled to compensation for validated past acts, intermediate period acts or valid future acts until they obtain a determination of native title. In other words, the Court must, simultaneously, determine whether or not native title existed before it was extinguished in order to determine whether compensation is payable.

6.2 How may compensation be paid?

Under the Native Title Act 1993 (Cth), compensation is only payable once for acts in the same area that are essentially the same.

Compensation may include money, land or any other form of arrangement or combination of legal arrangements agreed to by the native title holders affected by the act and the persons or agencies obliged to pay the compensation. Native title holders may request for all or part of the compensation to be paid by way of the transfer of property or the provision of goods or services. If the Federal Court or the person liable to pay does not agree to such a request, compensation may only be in monetary form.

For future acts to which the 'right to negotiate' applies, in the course of negotiations the parties may agree to establish a trust fund, which in special circumstances may deal with the payment of compensation. This is discussed in more detail in the ALGA's Working with Native Title Guide (pp296-297).

Native title holders have the same rights to compensation 'on just terms' as all Australian property holders. However, as in any area where compensation is payable for the extinguishment, loss, diminution or impairment of one party's rights or interests compared to another party's, it ultimately comes down to what the parties can agree is a mutually satisfactory transaction or arrangement.

6.3 Does council have to pay compensation for carrying out future acts that validly or invalidly affect native title?

Possibly. As mentioned above, native title holders will generally be entitled to compensation or damages for any invalid future acts that affect native title rights and interests. council could be made liable for any future act it invalidly carries out, in so far as the act affects native title.

Native title holders are entitled to compensation for certain valid future acts that affect their native title rights and interests. The Native Title Act 1993 (Cth) specifies in each case which party is liable to pay compensation for a particular valid future act. Commonwealth, state or territory governments generally provide for any compensation for the loss, diminution or impairment of native title by most kinds of valid future acts.

In relation to some kinds of valid future acts, however, state, territory or Commonwealth governments may specify under legislation that compensation is payable by a designated third party. If so designated, local government may be liable to pay compensation for the effect on native title of certain valid future acts that they have carried out. For example, council may be designated to pay compensation to all affected interest holders for any public works it constructs under a local government or Public Works Act. If so, council will be liable to pay compensation to any native title holders affected by such a public work.

A person other than the Crown may be liable to pay compensation if relevant state, territory or Commonwealth legislation provides that a person other than the Crown is liable in relation to the following:

• valid future acts that provide facilities for services to the public (see pp 178-179 of the ALGA's Working with Native Title Guide)
• valid offshore future acts (see pp 183-184 179 of the ALGA's Working with Native Title Guide)
• some valid future acts that pass the freehold test, such as certain compulsory acquisitions (see pp 181-183 and 191-196 of the ALGA's Working with Native Title Guide)

local government may also come to an agreement with the native title holders about compensation for future acts. It is possible to come to any form of arrangement in relation to compensation for future acts under an agreement - such as, an ILUA or an agreement made in the course of the 'right to negotiate' procedures. One advantage of this arrangement is that compensation under an agreement does not have to be in monetary form. Agreements also provide a gauge as to how much local government will be liable to pay in relation to a future act, as opposed to the uncertain process of having future act compensation determined by the courts (under a compensation application) or by an arbitral body (under the 'right to negotiate' procedures).

6.4 Compensation within an ILUA

(The following information is, in part, reproduced from Neate (2001b:20-22), with kind permission)

An ILUA may be about (among other things) compensation for any past act, intermediate period act or future act.

A registered ILUA will, in general limit the amount of compensation that may be paid to a range of parties defined in the Native Title Act 1993 (Cth) in respect of future acts affecting native title to the amount that has been specified under the agreement. Native title holders who agree to compensation for the effect of any future acts on their native title interests under an ILUA will only be entitled to compensation as agreed between the parties and as set out under the agreement. The Act provides that the following parties are not entitled to compensation, other than compensation provided for in the agreement;

• any registered native title body corporate who is party to the agreement
• any common law holder of native title for whom such a registered native title body corporate holds native title rights and interests on trust
• any common law native title holder of native title of whom such a registered native title body corporate is the agent or representative
• any native title holder who is entitled to any benefits provided under the agreement

It is arguable that persons who are bound by the ILUA by reason of s 24EA but who fall outside these categories still have the right to apply for compensation under Part 2 Division 5 of the Native Title Act 1993 (Cth). Thus native title holders who were not entitled to compensation under the agreement (for example, a person who is later determined to hold native title, but was not entitled to any compensation under the earlier registered ILUA) may apply for compensation in the usual way under Part 2, Division 5 of the Native Title Act 1993 (Cth). That exception does not apply to persons represented by the registered body corporate under a body corporate agreement, or persons whose authority was obtained for an area agreement.

Any other native title holder affected by the agreement, but who is not entitled to any compensation for the effect of any future acts on their native title rights and interests done under an ILUA, will be able to claim for compensation under the Act if:

• the act could be done over ordinary title land; or
• it could be done over ordinary land and the ordinary title holders would be entitled to compensation for the act (ALGA 1999:198)

Substantial legal authority is provided in the Native Title Act 1993 (Cth) when consent for future acts under an ILUA can be given for any lawful consideration, including payment of compensation. Those 'negotiated' compensation payments are taken to constitute a final settlement of compensation for the future acts involved only if the ILUA takes it to that final stage. If the native title holders agree that the amount under the agreement is the total amount of compensation for a particular act, then that is final. However, it is important that council negotiates with the right traditional owners.

The terms and conditions for the distribution of compensation or any other beneficial considerations are generally left to the parties to negotiate and agree upon. The scheme for the distribution of compensation will need to be reasonable because, at least in the case of alternative procedure agreements, the suitability of the agreements may be relevant to whether the ILUA is registered. If an objection is made to the registration of this type of ILUA, the NNTT must be satisfied that it is 'fair and reasonable to register the agreement' having regard to, amongst other matters, 'any benefits provided under the agreement to current native title holders - and their successors, and the way in which the benefits are to be distributed'.



7. Who should council negotiate ILUAs with?

Who should council negotiate an agreement with in the Indigenous community is a recurring question from many local councils. Local councils need to be mindful that they contact the correct native title holders for an area before entering into formal negotiations leading to an ILUA. There are two agencies that can provide assistance with these matters: the National Native Title Tribunal and the relevant Native Title Representative Body for the area concerned.

The notification of an application for a determination of native title that council receives from the National Native Title Tribunal will generally include the contact details for the nominated representative of the claimants. You can contact this person or you can approach the Native Title Representative Body.

The Native Title Act 1993 (Cth) enables the Federal Minister with responsibility for Aboriginal and Torres Strait Islander matters to appoint Native Title Representative Bodies (NTRB's) to represent the interests of Aboriginal peoples or Torres Strait Islanders within a particular region on native title matters. These bodies may be local Indigenous Land councils or legal aid services that have a special responsibility to assist and represent native title holders and claimants. To find the relevant NTRB for your area visit the NTRB website at www.ntrb.net

The NTRB has a responsibility to ensure you make contact with the correct native title holders for an area. They may also be able to assist with protocols and communication with the native title holders or claimants. It is advisable therefore, to establish good working relations with the relevant NTRB.

The National Native Title tribunal can also provide assistance with information about who must be party and who may be party to the different types of ILUAs.



8. Other issues to consider

There are a range of other issues in relation to ILUAs that local councils need to consider. Briefly, these include:

• who else should be parties to an ILUA. In particular, is involvement by the state/territory Government required for any part of the negotiations?
• the type of agreement that is appropriate depending on whether there has been a determination for the whole of the area or part of the area
• the area to be the subject of the agreement
• the scope of the subject matter of the agreement
• the timeframes required for completion of the agreement
• whether the non-extinguishment principle will operate or whether the ILUA will provide for the surrender and extinguishment of native title rights and interests
• the basis of negotiations (for example, good faith, proper endeavour)
• the processes involved in certification by the Native Title Representative Body
• the effects of registration
• who is to be bound by the ILUA
• potential risks of de-registration of the ILUA
• the remedies available to the parties for breach of the ILUA
• the duration of the ILUA
• the processes for amicable termination (should the need arise)

Many of these matters are canvassed in more detail in the ALGA's Working with Native Title and Working out Agreements guides.



9. Who can councils contact for assistance?

Local councils can obtain assistance from several sources:

• Your state/territory local government association
• Your state/territory government agency with primary responsibility for native title matters. This may be the Premier's or Chief Minister's Department, the Crown Solicitors Office or the Department with responsibility for land management
• Australian Local Government Association, Phone 02 6122 9400
  
• Email: alga@alga.asn.au or visit the ALGA website
• Commonwealth Attorney-General's Department (in relation to financial assistance), Phone 02 6250 6770
• National Native Title Tribunal, Phone freecall 1800 640 501. The Tribunal has produced a comprehensive brochure on ILUAs. Copies are available on request.
  Website: www.nntt.gov.au
• To find the relevant NTRB for your area visit the NTRB website and click on the map of NTRB's for Australia



10. Conclusions

One of the more important advantages of ILUAs is that they can deliver more local solutions. Each agreement can be designed to meet the needs of the parties and the circumstances in which the agreement arises (Godden and Dorsett 2000:11).

Good relations between affected parties are essential to resolving native title matters and agreements are an important consideration in responding to native title matters. Agreements with respect to native title matters can benefit all parties, providing certainty of relationship, certainty with regard to the meaning of native title and even environmental and economic benefits. Agreements offer a more affordable and secure way to make practical arrangements about the use and development of land or waters than by following other procedures.



References

Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) (2001) Native Title in the New Millenium. A selection of papers from the Native Title Representative Bodies Legal Conference 16-20 April, Melbourne, Victoria. Aboriginal Studies Press, AIATSIS, Canberra.

Australian local government Association (ALGA), Aboriginal and Torres Strait Islander Commission (ATSIC), National native Title Tribunal (NNTT) (1999) Working with Native Title: A practical guide for local government, 2nd Edition, ALGA, Canberra.

Australian Local Government Association (ALGA), Aboriginal and Torres Strait Islander Commission (ATSIC) (1999) Working out Agreements: A practical guide to agreements between local government and Indigenous Australians, 2nd Edition, ALGA, Canberra.

Australian local government Association (ALGA) (various dates) Issues Papers

Centre for Aboriginal and Economic Policy Research (CAEPR) (1998) Indigenous Land Use Agreements: the opportunities, challenges and policy implications of the amended Native Title Act. Discussion Paper, ANU, Canberra.

Doepel, Chris (2001) Indigenous Land Use Agreements: Notification and Registration, Paper presented at Native Title Forum, Negotiating Country, Brisbane 1-3 August 2001. (Also available on NNTT website at www.nntt.gov.au, click on Publications.)

Edmunds, Mary and Smith, Dianne (2000) Guide to Mediation and Agreement Making under the Native Title Act (1993), NNTT, (www.nntt.gov.au, click on Publications.)

Godden, Lee and Dorsett, Shaunnagh (2001) The Contractual Status of Indigenous Land Use Agreements, Vol. 2, Issues Paper No. 1, Land, Rights, Laws: Issues of Native Title, Native Title Research Unit, AIATSIS, Canberra.

Lane, Patricia (2001) A Quick Guide to ILUAs, Paper presented to Native Title Representative Bodies Legal Conference 16-20 April 2000, Melbourne, Victoria. Also published by AIATSIS 2001.

Neate, Graeme (2001a) Native title and local government: problems, procedures and prospects, paper presented to the Esperance-Eastern Goldfields Ward meeting, Kalgoorlie, 30 May 2001. (Also available on NNTT website at www.nntt.gov.au, click on Publications.)

Neate, Graeme (2001b) Indigenous Land Use Agreements: Some legal issues, Paper presented at Native Title Forum, Negotiating Country, Brisbane 1-3 August 2001. (Also available on NNTT website at www.nntt.gov.au, click on Publications.)

Parliament of the Commonwealth of Australia (2001) Ninteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Second Interim Report for the s.206(d) Inquiry - Indigenous Land Use Agreements. Senate printing Unit, Parliament House, Canberra.

Wade, Ruth (2001) Indigenous Land Use Agreements: Their role and scope, Paper presented at Native Title Forum, Negotiating Country, Brisbane 1-3 August 2001. (Also available on NNTT website at www.nntt.gov.au, click on Publications.)



Appendix A

What is the best context for negotiating agreements?

The context in which agreements are developed are crucial to their success. Considerations include:

• Willingness. Participants need to be genuinely committed and willing to compromise, at least to some extent
• Timing and timeframes. Agreements take time to negotiate. Patience and a long-term focus are required
• Communication. The parties need to understand cultural differences and the impact this can have on effective communication
• Information and research. Good baseline information is essential
• Bargaining power. To ensure a fair settlement, all negotiating parties must be able to speak from a position of equal status
• Knowledge of existing models and precedents provide important demonstrations of what is possible
• Unity and representation of parties to the negotiation. Representation must always be legitimate, recognised and of equal standing. The ability of parties to speak and to make decisions for their constituency is critical in being able to reach binding agreements
• Public attitudes. Public support for developing amicable and workable agreements is crucial
• Resources. The resources must be available to all parties to enter into the process and to be able to follow it through

Other essential pre-requisites include an atmosphere of constructive goodwill, mutual respect, and recognition of each other's rights and interests.

Ed Wensing FAPI MPIA, is an independent planning and land management consultant and is a co-author of Working with native title: A practical guide for local government and the author of Working out agreements: A practical guide to agreements between local government and Indigenous Australians published by the Australian Local Government Association. Ed can be contacted at ALGA. Copies of the guides can be obtained by contacting ALGA.