About Native Title and ILUAs |
In 1992, the High Court of Australia handed down the landmark Mabo decision which recognised that the Meriam people, of Mer Island in Torres Strait, had Native Title over their traditional lands. The decision overturned the concept of terra nullius (land belonging to no-one), which had been in force since European settlement.
Native Title describes the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs where these rights and interests are recognised by the common law.
This landmark decision paved the way for the recognition of Native Title across Australia and resulted in the Native Title Act 1993, which now governs the recognition and protection of Native Title rights in Australia.
Under the Native Title Act, Aboriginal or Torres Strait Islander people can lodge an application in the Federal Court of Australia seeking recognition of their Native Title rights and interests in relation to lands or waters. These applications are called ‘Native Title claims'. When these applications are lodged, any other person with an interest in the lands or waters claimed can become a party to that Native Title claim.
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There are a number of ways of dealing with a Native Title claim including:
• The claim can be resolved by the court after contested proceedings;
• The claim can be resolved by the court with the consent of all parties by way of a Consent Determination;
and
• The claim can be withdrawn with an agreement not to relodge.
Indigenous Land Use Agreements (ILUAs) can be used to set the foundation for, or in parallel with, resolving claims by agreement, whether through a consent determinations or the withdrawal of claims.
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An ILUA is an agreement made between Native Title claimants and others who have an interest in the land and/or waters covered by the claim (like pastoralists, farmers, miners, commercial fishers, governments etc).
Once the parties agree on the content of an ILUA, it is publicly notified and can be registered with the National Native Title Tribunal. Once an ILUA is registered, it not only binds those people who have signed the agreement, but it binds all native title holders for that area. The registration of an ILUA also has other effects under the Native Title Act, and in particular it allows people to use and develop land with certainty and in a way that is valid under the Native Title Act.
In negotiating an ILUA, people can focus on the practical issues as they see them, rather than getting caught up in technical legal arguments. Everyone involved can talk together to build a better understanding of each other's concerns, rights and interests. This helps build a solid base for ongoing co-operation and relationships.
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While native title does not exist in freehold areas, in South Australia up to 80% of the land and waters could be affected in some way by native title. This means that over a large portion
of the State native title matters must be addressed.
This does not mean that there needs to be ongoing uncertainty or costly legal arguments. Native title matters can be addressed in a timely and cost effective manner through building cooperative relationships instead of adversarial relationships. ILUAs can acknowledge the different rights and interests that parties have in land and water, and can clarify the relationship between them and the manner of their exercise, in a way that respectfully meets the needs of all.
We can work together. It is better for our communities, and it is better for business.
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