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Do I need to negotiate an Indigenous Land Use Agreement?

AnIndigenous Land Use Agreement (ILUA) is a voluntary agreement between native title parties and other people or bodies about the use and management of areas of land and/or waters.

While registered, ILUAs bind all native title holders to the terms of the agreement, and operate as a contract between the parties.

ILUAs preserves the non-extinguishment of native title principle and allows for compensation in the event of future acts that breach the conditions of the ILUA.

 

What’s in an ILUA?

An ILUA may cover:

  • Future development of land
  • Access to land and water sources
  • Mining
  • Cultural heritage
  • Employment opportunities.

The conditions of an ILUA are set out in the Native Title Act 1992 (Cwth) and may include:

  • The activities that can occur on the land or water in the future either specifically or as a general class of activity (ie. mining)
  • Whether particular activities that have already occurred on land or water can continue, whether it needs to be modified, or the cessation of the activity
  • Withdrawing, amending, varying or doing any other thing in relation to a native title or compensation application in relation to land or waters in the area
  • The relationship between native title rights and interests and other rights and interests in relation to the area
  • The manner of exercise of any native title rights and interests or other rights and interests in relation to the area
  • Compensation for any past act, intermediate period act or future act (this is the enforcement of the ILUA).

The ILUA can also be entirely unique depending upon the parties negotiating, the activities being considered, and the unique land/water areas that are the subject of the agreement.

 

 

Types of ILUAs

There are three types of ILUAs: 

  • Prescribed Body Corporate Agreements are made for areas where native title has been proved to exist (a registered native title group).
  • Area Agreements are made where there are no registered native title bodies corporate for the whole area (a claimant group not yet registered as having a proven native title claim over the land/water). They may deal with a range of future acts and access to non-exclusive agricultural and pastoral leases.
  • Alternative procedure agreements may be made where there are no registered native title bodies corporate for the whole area (a claimant group not yet registered as having a proven native title claim over the land/water). They may provide a framework for making other agreements about matters relating to native title rights and interests. This type of agreement can be complicated if there are ILUAs being negotiated and entered into against wishes of clan groups.

 

 

Where can an ILUA be negotiated?

A native title group can negotiate and enter an ILUA with other entities pertaining to land and water where:

  • native title has been determined to exist in at least part of the area
  • a native title claim has been made
  • no native title claim has been m​ade.

 

 

As an interested party, what do I need to do to initiate an ILUA with a First Nations group?

Before you start negotiating, think about and develop relationships with First Nations groups to be impacted. Get to know the communities impacted, and build an understanding of community aspirations and how to support those communities. 

The First Nations Clean Energy Network’s Clean Energy Negotiations Guide sets out some of these necessary steps, including:
  • Find out who is representing the impacted First Nations people. Is it a Land Council, a Prescribed Body Corporate (PBC), a native title claim group, a Local Aboriginal Land Councils (LALC), a corporation or an associationIf there is no local structure of representation, there may be other organisations to represent or to engage with the First Nations people impacted, particularly in relation to cultural heritage management.

  • Keep people informed using existing processes. If that process involves meetings, logistical arrangements need to be considered including transport arrangements to get people to meetings, meals and accomodation, and providing translators if required.

  • Agree on a process for decision-making with the First Nations impacted community. Some communities use traditional decision-making processes, based on consensus, while others combine contemporary arrangements and traditional structures. Some communities have to follow specific legal rules (as required by the Native Title Act) or organisational rules (such as their constitution or rule book) about how they come to decisions. Agree on a process that sits alongside those rules and that reflects the specific needs of the impacted community.

  • Ensure the First Nations community impacted and the representative body are fully informed. The role of land councils, native title representative bodies or other bodies in leading negotiations needs to be understood by all community members. The community might need to give specific instructions about what the community is prepared to negotiate.

  • Share and keep accurate records of each meeting and negotiation. Set a process for the company and the community’s representatives to follow during and after each meeting to keep everyone informed and to make sure everyone has an accurate record of any meeting.

  • Work collectively with others. If other nations, groups or clans are affected by the project, there may be opportunities for you and the First Nations group to work collectively on key issues that are agreed upon, or on key benefits to share.

  • Understand with the community what kinds of skills and capacities the community has. From here you can see the gaps and work out how and what kind of additional support or resources the community might need.

  • Develop and agree on a protocol before negotiations commence. The community will set out how it wants the company to deal with its representatives. The community's representatives might have a standard protocol or the company might put a protocol forward. Either way, the community may ask for their representatives to explain it to them and they may ask for changes to be made to the protocol if it doesn’t meet their needs.

    • Communication. The community will work out who the company will communicate with and how they do so. The community may request that key people be copied into emails or called about meetings so that they are kept in the loop and knowledge is properly shared.
    • Meetings. The community will work out who will go to meetings and where they will be held. The community might nominate a place on country or near the project site that you could meet.
    • Confidentiality. The community will work out if there are confidentiality considerations and whether they can talk to other communities and advisors about the project.
    • Decision-making. The community will work out which decisions need to be brought back to the whole group and when. For example, if an agreement can only be signed once it is approved by the whole group, put this in the protocol. The community will make sure all involved – the community, representatives, etc – know who makes the final decisions.
    • Cultural awareness. The community will work out what they want the company to know about our culture before the discussions start. Consider allocating time for company representatives to do cultural awareness training (or similar) with the community before or during the negotiations.
  • Check understanding at every step. Make sure there is sufficient understanding of what is happening and what is being said. Cover the costs of interpreters and others who advise. Provide simple explanations of legal and technical matters. For example, the community might require time on site with company representatives to understand the extent of the land that will be involved and the location of key infrastructure and access tracks.

  • Assist the community to access external, expert advice to help understand the project or proposal so that they can engage confidently in the negotiations. It is normal for a company wanting to negotiate with a First Nations group to pay for legal advice on any proposed agreement and financial advice on the proposed offer. Provide funding to help the community get advice on environmental, engineering or other matters.

  • Follow the agreed protocol. If the agreed protocol isn’t being followed, or the First Nations community are not being properly consulted, the company will be notified. This may be written so that the community has a record of advising you. If the First Nations representative or negotiators aren’t following the protocol, the community may notify the company so that you know to stop engaging with that representative or negotiator until there is a new agreed protocol.

  • Review benefit sharing options with the community. There are numerous ways to share the benefits from projects. The community won't be limited to what is in other agreements or what is typical or “standard”. Each agreement and project should be tailored to deliver what is best for the impacted community. Only the impacted community will know the answer to this. Work out options for benefit sharing, which may include:
    • better energy access and reliability to help more of the community live on country
    • co-designing the project footprint so the community can be confident that culturally significant sites are carefully avoided
    • entering a joint venture partnership in the project or ensuring the community has a shareholding that generates dividends for the community and that the community is an owner of the project
    • establishing a regular revenue stream, working out when payments start, how they will be calculated, how they will be paid, and to whom.
    • establishing a community benefit fund (for example, to help provide a funding source for local and community projects and initiatives). This should be separate from and additional to any financial benefits Traditional Owners negotiate with you.
    • identifying contracting and procurement opportunities at the earliest stage, so that the community has time to develop new or expand existing capabilities and businesses. Consider mandating a percentage of contracts (by value or number) that must be directed towards the community.
    • providing detailed information on the types of jobs that will be required for the project. If the jobs will be available only during construction, liaise with other companies undertaking projects in the region to create pathways for First Nations to new positions on completion. Ask government or training organisations to assist with this and whether there will be ongoing sustainable jobs.
    • supporting community members to undertake training in advance of the project so they will be ready for jobs when they become available.
    • mapping the skills that community members already hold. This data can then be used to create a skills register, which you are required to review when considering employment or contracting. It could also be used for a gap analysis to identify training needs and opportunities in the community.
    • supporting the community’s economic and community development goals and aspirations to achieve those and other goals. Support might extend to such things as use of the company's equipment and machinery, expertise and materials.
    • assisting the community to develop a long-term strategy that will benefit the community as a whole by building assets, and growing investments and savings from revenue streams from the project. Having a long-term investment strategy to achieve community aspirations may be more effective than distributing payments to individuals and families in the short-term. 
  • Protecting Country. Consider what role the community wants to take in environmental protection. They may want the company to consult with them on environmental impacts and involve them in environmental management. There may also be particular areas of high biodiversity value that the community would like to protect. They will likely want to have an opportunity to comment or make a submission on environmental or social impact statements that you lodge with the Government. A strong agreement will require the company to avoid harm to cultural heritage unless the Traditional Owners have provided free, prior and informed consent (FPIC) to activities that will or may affect cultural heritage. A strong agreement will allow for Traditional Owners to go on country other than during times when it is unsafe to do so. You must also consider what will happen to the land at the end of the project, including the company’s obligations to restore and rehabilitate the land and who will pay. Consider the community’s role in restoring and rehabilitating the land.

  • Provide early, transparent, clear information. Being fully informed will assist in the negotiations. The information provided will depend on the nature and location of the project, and should include:
    • Project scope
      • the likely size and scale of the project
      • the area of land that will be required
      • the likely profit margin and financial modelling
      • an understanding of who will buy energy/other from the project
      • the approvals required for the project to proceed
    • Camp or town impact
      • whether workers will be fly-in fly-out (FIFO), or whether they will stay in a camp or town (consider impact on local services and accommodation)
    • Types of meetings and notifications
      • how meeting notices will be displayed and distributed
      • who is responsible for preparing meeting notices
      • notice periods before meetings to allow time to prepare for an
      • information or decision-making session
      • making sure the right people and decision-makers are there
  • Company profile
    • owners / shareholders of the company
    • location of the company and its track record of operations
    • the identity and track record of contractors and consultants
  • Project supporters
    • the sources of finance for the project
    • other supporters and backers
  • Government approvals. The position of First Nations communities will be a relevant consideration for the Government in determining the level of support it gives a project. 

  • First Nations requirements. There may be specific First Nations requirements relevant to the project, mandated by planning, environmental and regulatory schemes.

  • Cultural heritage. Protecting cultural heritage is obviously critical. As the Juukan Gorge catastrophe demonstrated, merely following the minimum requirements of the law will not protect a company’s reputation or mean that it has obtained a social licence for a project.

  • Company values and commitments. Pursue a Reconciliation Action Plan or publish a statement about your values in relation to social responsibility, sustainability and engaging with First Nations communities.

  • The company’s bank or financiers. Banks or sources of finance (say, a superannuation fund) for a project may have a social responsibility or impact policy, or potentially a Reconciliation Action Plan. 

 

 

What are the next steps in negotiating an ILUA with a First Nations group?

Once you have completed the previous steps, the next stage is negotiating the ILUA, which can take time. 

  • Confirm the appropriate ILUA type
  • Identify the parties
  • Clarify the subject matter
  • Describe the area
  • Negotiate with the parties
  • Authorisation of ILUA with native title party
  • Signing
  • Apply for registration

 

 

How do I register an ILUA?

An application for registration of an agreement must be made in writing to the Native Title Registrar.

The Native Title Act 1992 (Cwth), Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) and Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) set out the information that must accompany the application.​

The Native Title Act requires that the Registrar must give notice of the ILUA to any of the persons and bodies specified in the Native Title Act who are not parties to the agreement, and must also notify the public.

If all procedures and conditions are complied with, the ILUA will be registered.

Register an ILUA

 

 

Where can I find ILUAs that have already been agreed to? 

Search for ILUAs on the Register of Indigenous Land Use Agreements administered by the National Native Title Tribunal. 

This Register has ILUAs that have been accepted for registration.

While registered, ILUAs bind all native title holders to the terms of the agreement. ILUAs also operate as a contract between the parties.

If you have a question about a particular ILUA or would like a copy of the ILUA, please contact the parties to the agreement identified on the Register extract for the ILUA.

 

 

More information

 

 

Where to next?