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Thalanyji and Nyang (Emu Creek) Pastoral Indigenous Land Use Agreement (ILUA)
|Date:||7 January 2010|
|Sub Category:||Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Location:||Onslow, Western Australia, Australia|
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|The ILUA covers land and waters subject to Reserve 1409 as well as the part of Pastoral Lease 3114/616 (Emu Creek) Crown Lease 302/1966 over which native title was deemed to exist in Hayes on behalf of the Thalanyji People v The State of Western Australia  FCA 1487 (Federal Court No: WAD6113/97). The ILUA area is located within the jurisdiction of the Ashburton Shire Council, Western Australia. The agreement area excludes roads, reserve 41365, easement 3134B/108 and areas where native title was determined not to exist in the Minute of Consent Determination for Hayes on behalf of the Thalanyji People v The State of Western Australia  FCA 1487.|
|Legal Status:||Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 7 January 2010. This is a Body Corporate Agreement under the Native Title Act 1993 (Cth).|
|Legal Reference:||National Native Title Tribunal File No. WI2009/025.|
|Subject Matter:||Access | Agriculture | Future Act | Land Use | Native Title | Pastoral Activities | Tourism|
|This ILUA is one of a series of five ILUAs entered into by the Buurabalyji Thalanyji Aboriginal Corporation with pastoral lessees following the determination in Hayes on behalf of the Thalanyji People v The State of Western Australia  FCA 1487 (18 September 2008) dealing with 'practical co-existence issues between native title holders and pastoralists' which have been registered after the consent determination (NNTT Media Release).|
The Thalanyji and Nyang (Emu Creek) Pastoral ILUA was agreed between Matthew John Thomson and Elizabeth Anne MacLeay (the pastoral lessees of Nyang (Emu Creek) Station) and Buurabalyji Thalanyji Aboriginal Corporation (on behalf of the Thalanyji People).
The purpose of the ILUA is to provide consent for the doing of the following future acts:
- the renewal of the subject pastoral lease
- the grant of rights to conduct agricultural activities on the subject pastoral lease
- the grant of rights to conduct 'low impact tourism' in the agreement area
- the extension of the subject pastoral lease or, alternatively, the grant of further pastoral leases to enable pastoralist use of stock routes and reserves
|Renewal of the subject pastoral lease|
The ILUA provides for the renewal, remaking or re-granting of the subject pastoral lease. This will not effect the rights and interests of the Thalanyji people in the agreement area.
Grant of rights to conduct agricultural activities on the subject pastoral lease
The ILUA enables the pastoralist to grant a licence, permit or authorisation to conduct agricultural activities on the subject pastoral lease. In granting these rights, the pastoralist may grant a right of exclusive occupation which will exclude the Thalanyji people from the areas the subject of the grant.
Grant of rights to conduct 'low impact tourism'
The ILUA provides the pastoralist rights to conduct 'low impact tourism' activities and construct and operate buildings, infrastructure and facilities associated with such tourism. Before such activities are commenced, notice must be provided to the Buurabalyji Thalanyji Aboriginal Corporation.
The ILUA also enables the Buurabalyji Thalanyji Aboriginal Corporation to negotiate with the pastoralist to undertake commercial activties that supplement the tourism activities. Whilst there is no obligation on the pastoralist to accept proposals made in this respect, the pastoralist must undertake negotiations in good faith.
In conducting tourism activities, the pastoralist must respect the Thalanyji People's rights to disseminate information regarding sites of significance and must not use culturally sensitive information.
Stock routes and reserves
The ILUA provides for the pastoralist's continuing right to use stock routes and reserves which are the subject of the agreement. It also provides for occasional grants of pastoral lease tenure over those areas comprising the stock routes and reserves.
The agreement area will reduce where the Thalanyji People's native title rights are compulsorily acquired or where any part of the subject pastoral lease is not renewed or transferred to another party. In the case of a transfer, the agreement area would be unaffected unless the transfer was such that a native title claimant could rely on s 47, 47A or 47B of the Native Title Act 1993 (Cth) to prevent extinguishment of their native title interests.
The parties agree that their consent to the doing of these acts constitutes the requisite consent for the purposes of ss 24EB(1) of the Native Title Act 1993 (Cth).
The parties also agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply to the grant of the lease.
Native Title in the ILUA Area
The ILUA area is located within the Determination Area of native title made in the proceeding Hayes on behalf of the Thalanyji People v The State of Western Australia  FCA 1487 (18 September 2008) by the Federal Court of Australia. The ILUA was signed immediately after the determination, and it was originally contemplated that it would be registered soon after. This ILUA is one of a series of five ILUAs entered into by the Buurabalyji Thalanyji Aboriginal Corporation with pastoral lessees following the determination.
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