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Blairgowrie Indigenous Land Use Agreement (ILUA)
|Date:||21 December 2001|
|Sub Category:||Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Location:||Mornington Peninsula, Victoria, Australia|
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|The harbour is to be built on Crown land and waters at Blairgowrie on the Mornington Peninsula, south-east of Melbourne, within the Mornington Peninsula Shire Council area and the Binjirru ATSIC region. Recital B of the agreement describes the area of land that the ILUA covers as follows: 'The Project is proposed to be undertaken on Crown Land and water which is at present: (i) in part, reserved for public purposes and subject to a Crown Lease from Blairgowrie Foreshore Reserve Committee of Management Incorporated to Blairgowrie Yacht Squadron (now Blairgowrie Yacht Squadron Incorporated) dated 1 September 2989 for a term of 21 years (being an area of 5693 square metres, incorporating the existing club house and car park areas); ('the existing Crown Lease'); (ii) in part, reserved for public purposes, but not subject to any tenure arrangements (being the land between the high tide mark, and the boundary of the lease referred to a (i) above); and (iii) in part, unalienated Crown Land or waters (being the harbour area upon which the open piled jetty, the wave attenuator screens, and floating berths are to be built, and the swing moorings are currently situated); (iv) in part, subject to licence number 02955 under s 138 of the Land Act 1958 [italics and (Vic) added] issued by the Governor of the State of Victoria to Blairgowrie Yacht Squadron (now Blairgowrie Yacht Squadron Inc.) which commenced on 1 August 1980, and has been renewed annually since that date (being an existing jetty, which is to be removed and an existing slipway, which is to remain) ('the existing Crown licence')'.|
|Legal Status:||Registered with the National Native Title Tribunal|
|Legal Reference:||National Native Title Tribunal File No: VIA2000/00|
|Subject Matter:||Native Title | Housing, Construction and Infrastructure | Land Transaction | Sports and Physical Recreation | Future Act | Land Use|
|The Blairgowrie Indigenous Land Use Agreement (the ILUA) enables a safe boat harbour to be built at Blairgowrie. |
Under the ILUA the Indigenous people of the area, the Boonerwrung, give their consent for any future acts that might be involved in the construction of the harbour. Activities defined as future acts in the Native Title Act 1994 (Cth), require the consent of the native title parties in order to be done validly.
The agreement describes that the construction will include the following activities:
'The construction of a safe boat harbour at Blairgowrie which will comprise the following core elements:
(i) a new 340 metre long open-piled jetty, providing access to the general public and to secured floating berths;
(ii) wave attenuator screens (a 270 metre concrete and a 90 metre floating wave attenuator);
(iii) floating berths, consisting of 170 permanent berths and 45 temporary or overnight berths for public use;
(iv) upgrade of existing car parks;
(v) removal of existing timber jetty;
(vi) reduction of 65-100 of the 320 existing swing moorings; and
(vii) upgrade of existing slipway for all weather operation'.
The construction of the harbour will be done on Crown land and waters at Blairgowrie on the Mornington Peninsula, south-east of Melbourne. The land and waters were not subject to a native title claim.
|In 2002, an application under section 5 of the Administrative Decisions Judicial Review Act 1977 (Cth) sought judicial review of the decision to register this agreement. This was the first time that a delegate's decision to register an ILUA had been challenged. Applicant Murray sought the review on the grounds that the agreement could not be registered as an ILUA because it did not meet the requirements of sections 24CB to 24CE of the Native Title Act 1993 (Cth), in particular because the applicant was a necessary party to the ILUA (as a native title party or part of the native title group).|
The application for review was dismissed by His Honour Justice Marshall, who concluded Murray was not a necessary party to the ILUA.
The decision was appealed by Ms Murray against His Honour's findings. The Full Federal Court upheld Marshall J's decision and dismissed the appeal in their decision on 24 September 2003  FCAFC 220.
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