What is an indigenous land use agreement (ILUA) ?

An indigenous land use agreement (ILUA) is an agreement about native title and the use and management of land and waters made between one or more native title groups and other people.

An ILUA can be a most practical way to resolve native title issues. It allows people to make agreements about how land and waters are used without necessarily entering into the usual native title process.

An ILUA may be a stepping stone on the way to a native title determination, be part of the determination process or it may suit the parties better than a determination. ILUAs may be made about matters such as mining developments, sharing land and exercising native title rights and interests, and compensation.

The advantage of an ILUA is its flexibility – it can be tailored to suit the needs of the people involved and their particular land use issues.

By making agreements, Indigenous Australians may gain benefits such as employment, compensation and recognition of their native title.

Other parties to the agreement may obtain the use of land for development or other purposes. An ILUA allows developments on land to happen independently of any application for a determination of native title or before a determination of native title is reached.

ILUAs have shown that they can help create and foster good relations between commercial proponents, government parties and native title groups.

How to make an indigenous land use agreement

Courts are not involved in the ILUA negotiation process — it is conducted entirely between the parties. People who want to make an ILUA should, however, seek legal advice.

ILUA negotiations have no set timeframes. The time it takes to negotiate depends on the parties and what the ILUA is about. Parties can progress matters in their own time and set their own progress for negotiation.

Once the need for an agreement is identified, a meeting can be arranged between all potential parties, to try to frame an agreement that meets everyones needs. The type of ILUA chosen will depend on the area involved, the parties and the nature of the agreement. It is important that the right kind of ILUA is selected.

There are three different types of ILUAs: body corporate agreements, area agreements and alternative procedure agreements.

The National Native Title Tribunal can provide assistance if requested, at any point prior to or during the negotiations of an indigenous land use agreement by:

• providing information
• facilitating negotiations
• providing comments on draft agreements
• providing assistance with making applications for registration
• providing assistance to negotiate the withdrawal of an objection to the registration of an area agreement where the application has been certified.

Registration

Once the agreement is finalised, parties to an ILUA can apply to the Registrar of the National Native Title Tribunal to have it registered on the Register of Indigenous Land Use Agreements. The Registrar can provide assistance with making an application for registration of an ILUA.

If the ILUA satisfies the conditions set out in the Native Title Act 1993, the Native Title Registrar is required to notify the public and specified persons that the parties have applied for registration. Body corporate agreements, however, do not require a public notification.

During the notice period it is possible that certain obstacles to registration might arise, such as an objection to the registration of the agreement, or the withdrawal of one of the parties. An ILUA can only be registered when there are no obstacles to registration, or when those obstacles have been resolved.

A registered ILUA binds all native title holders in the area, even if they were not involved in making the agreement. It enables development to take place on the land and generally limits compensation payable to the native title group to that provided in the agreement.

The ILUA will then remain registered unless it expires, parties advise the Registrar that they wish to terminate the agreement, or other specific circumstances occur.

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This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

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