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Wik & Wik Way People and Cook Shire Council Agreement # 2
|Date:||5 November 2009|
|Sub Category:||Future Act Agreement (Native Title Act) | Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Location:||Weipa, Queensland, Australia|
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|The ILUA area covers approximately 1,147 square kilometres of land and waters on the west of the Cape York Peninsula, stretching south from the Embley River down to Aurukun Mission Station. The ILUA area is located generally south of Weipa and generally North of Aurukun. The ILUA area is located within the jurisdiction of the Cook Shire Council.|
|Legal Status:||Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 5 October 2009. This is an Area Agreement under the Native Title Act 1993 (Cth).|
|Legal Reference:||National Native Title Tribunal File No. QI2007/017.|
|Subject Matter:||Access | Consultation | Housing, Construction and Infrastructure|
|The Wik & Wik Way People and Cook Shire Council Agreement # 2 was agreed between:|
- Anthony Kerindun, Alison Woolla and Janine Chevathun (being those people who brought a claim on behalf of the Wik and Wik Way Native Title Claim Group in Wik and Wik Way Native Title Group v State of Queensland  FCA 789 (29 July 2009) and
- Cook Shire Council
The ILUA is the product of negotiations leading up to the consent determination of Wik and Wik Way Native Title Group v State of Queensland  FCA 789 (29 July 2009). That consent determination recognised the existence of native title rights and interests over 1150 square kilometres of land and waters on the west of the Cape York Peninsula. The consent determination was conditional on the registration of this ILUA on the National Native Title Tribunal Register.
The purpose of the ILUA is to provide clarity as to how parties should proceed in exercising their rights under the consent determination. It governs how the rights of native title parties 'interact with...Cook Shire Council's infrastructure and service delivery' (see McBratney 2009).
In particular the ILUA provides consent for
- the continued operation, use and maintenance of specified infrastructure;
- the doing of specified future acts;
- the construction or carrying out of certain works or activities.
|Consent for the continued operation, use and maintenance of specified infrastructure|
The parties consent to the continued operation, use and maintenance of Council 'Non-Extinguishing Infrastructure'. They also consent to the use of land on which such infrastructure is built or land adjacent to the infrastructure.
Infrastructure will be deemed to be 'Non-Extinguishing Infrastructure' where:
- it was constructed on or before the commencement date of the ILUA (5 October 2009)
- it was not validly constructed on or before 23 December 1996 (the date of the decision in The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors  HCA 40); and
- it does not constitute a public work (as defined in the Native Title Act 1993 (Cth))
Consent for the doing of specified future acts
The parties consent to the doing of 'Approved Future Acts'. Future Acts will become Approved Future Acts where they meet a set of procedural steps. The steps are listed below:
- The Council must provide a 'Proposed Activity Notice' which details, amongst other things, the work they intend to do, the location of such work, the estimated time for such work and why the work is being conducted.
- Within 30 business days of receiving the notice, the native title parties must provide a 'Concurrence Notice' providing consent for the doing of the work or activity. The native title parties may alternatively provide a 'Refusal Notice' within the same time-frame, in which case the work or activities cannot immediately commence.
- Where the native title parties fail to provide either notice within the above time-frame, consent will be deemed to have been given.
Where a 'Refusal Notice' has been provided by the native title parties, the Council may convene a meeting to discuss the reasons for the refusal of consent and any potential modifications to the work or activity that might lead to consent from the native title parties. Following the meeting, the Council may seek consent for the performance of the relevant work or activity by lodging a 'Revised Activity Notice' with the native title parties.
The provisions above do not apply to 'minor works or activities', whose performance is subject to separate conditions. Those conditions are detailed below.
Consent for the construction or carrying out of certain minor works or activities
The parties consent to the construction or carrying out of 'Minor Works or Activities' by agents, employees or contractors of the Council. Such works or activities are listed at Schedule 3 to the ILUA and include:
- the construction or continued operation of Council infrastructure to ensure the safety of people and property which is subject to an immediate threat
- tree lopping in and around such infrastructure
- repairing such infrastructure
- reinstating any destroyed infrastructure
- inspecting such infrastructure
- maintaining such infrastructure
- fencing or barricading such infrastructure
- erecting sign posts
- accessing the agreement area with any equipment reasonably necessary for the performance of the those tasks.
The consents listed do not enable access to infrastructure used as dwellings within the determination area.
The completion of all such 'Minor Works or Activities' must meet certain conditions, including:
- provision of notice to the native title parties where reasonably practicable or required by law
- use of best endeavours to avoid causing damage to the agreement area and interference with the privacy of the native title holders within the area
- taking of 'reasonable measures' to 'rehabilitate' any damage or interference caused.
The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply.
Native Title in the ILUA Area
The ILUA area is located within the Determination Area of native title made in the proceeding Wik and Wik Way Native Title Group v State of Queensland  FCA 789 (29 July 2009) by the Federal Court of Australia. Under the Native Title Act 1993 (Cth) any activity that may affect native title rights is defined as a 'future act' and must comply with the future act provisions of the Act in order to be valid. The ILUA entitles the parties to circumvent these provisions.
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