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Gugu Badhun People and Ergon Energy Indigenous Land Use Agreement (ILUA)

Category: Agreement
Date: 24 January 2013
Sub Category:Indigenous Land Use Agreement (ILUA) (Native Title Act)
Location:Queensland, Australia
The ILUA area covers approximately 6,545 square kilometres of land and is located west of Ingham in the vicinity of the Burdekin River.
Legal Status: Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 24/01/2013, this is an authorised Body Corporate Agreement under the Native Title Act 1993 (Cth).
Legal Reference: National Native Title Tribunal File Number: QI2012/085
Subject Matter:Access | Compensation | Future Act | Land Use | Management / Administration | Mining and Minerals | Native Title
URL: http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-Registered-ILUAs/Pages/QLD_-_Registered_ILUA_-_Gugu_Badhun_People_and_Ergon_Energy_ILUA_QI2012_085.aspx
Summary Information:
The Gugu Badhun People and Ergon Energy Indigenous Land Use Agreement (ILUA) is a body corporate agreement between:
- Ergon Energy Corporation Limited (applicant);
- Harry Gertz, Ernie Hoolihan, Hazel Illin, Narda Kennedy and Elsie Thompson as the Applicants for Native Title Determination Application QUD85/2005 (Gugu Badhun People #2); and
- Gugu Badhun People Aboriginal Corporation RNTBC.

The purpose of this ILUA is to allow for the doing of certain future acts by Ergon Energy in the ILUA area.
Detailed Information:
Details of the Agreement

Commencement

Apart from certain provisions which commence on the date of registration, here being 24 January 2013, the ILUA commences on the commencement date. The commencement date is either the date of execution or the date the Registered Native Title Body Corporate executes the ILUA.

Future Acts

The parties consent to the doing of any particular future act and any class of future act specified in this ILUA.

The parties to the ILUA consent to Ergon Energy conducting any of the following future acts:
- minor works (see below for definition);
- access to the ILUA area in order to conduct minor works;
- use of land siting electricity infrastructure and any adjacent land required for operational use and maintenance of the infrastructure;
- access to the land mentioned above by way of access tracks in existence at the execution date;
- any future acts on Aboriginal land subject to the prior written consent of the entity holding the Aboriginal Land having been obtained; and
- subject to Cultural Heritage Management Processes, the grant of any easement, licence or permit over relevant electricity infrastructure.

Tenure or interest

The Native Title Party consents to the State of Queensland granting Ergon Energy any tenure or other interest over land within the ILUA area on which electricity infrastructure is located. However, this is without prejudice to any rights which the Native Title Party may have to compensation from the State of Queensland.

Right to Negotiate

The parties agree that Part 2, Division 3, Subdivision P of the Native Title Act 1993 (Cth), which concerns the right to negotiate, does not apply to any future act to which the parties have consented to in this ILUA.

Licences

Where the Native Title Party is legally entitled to do so, it grants Ergon Energy a non-exclusive licence to use all land on which any electricity infrastructure exists at the execution date. It also grants this licence to all land that is adjacent to the relevant electricity infrastructure which is necessary for the operation of of the infrastructure. The Native Title Party consents to the use of this land if it is necessary for the operation, use maintenance and repair of the electricity infrastructure.

Where this electricity infrastructure is powerlines or is located in airspace, the Native Title Party consents to and authorises Ergon Energy's use of an area of 10 metres on each side of the line on the ground falling beneath the relevant infrastructure for any purpose necessary or incidental to the operation, use, maintenance or repair of the infrastructure.

Unless Ergon Energy consents in writing, the Native Title Party will not:
- Grant an incompatible licence to a person other than to Ergon Energy over any land subject to a licence or a consent or authorisation. An incompatible licence means any licence for a purpose or a use which is wholly or partly inconsistent with Ergon Energy's existing or proposed use of the land.
- Provide incompatible consent or authorisation to a person other than Ergon Energy over any land subject to a licence or a consent or authorisation. Incompatible consent or authorisation means any consent or authorisation for a purpose or a use which is wholly or partly inconsistent with Ergon Energy's existing or proposed use of the land.
- Themselves, use for any incompatible purpose, over any land subject to a licence or a consent or authorisation.

Where Ergon Energy seeks to obtain an easement, permit or licence from any other person over land for the use of the electricity infrastructure, subject to compliance with Cultural Heritage Management Processes, the parties consent to and otherwise authorise the grant of those interests.

Access Tracks

Where Ergon Energy uses access tracks other than dedicated roads within the ILUA area which are in existence at the execution date, and this use is for the purpose of accessing the relevant electricity infrastructure, subject to Cultural Heritage Management Processes in this ILUA, the parties consent to and authorise Ergon Energy and its contractors to:
- use the access tracks for access purposes;
- maintain and repair the access tracks; and
- be granted an interest in the nature of an easement, permit or licence over the area covered by those access tracks.

Native Title Party's consent

The Native Title party agrees:
- not to challenge Ergon Energy's assertion of its exclusive ownership of the electricity infrastructure;
- not to act in a way (or authorise or encourage any other person to act in a way) that would prevent, inhibit or interfere with the use and operation of the electricity infrastructure or access tracks or pose a safety hazard.
- that the construction or establishment of the infrastructure is valid.

The Native Title Party consents to and authorises Ergon Energy and its contractors to:
- access the ILUA area; and
- remain in the ILUA area for such time as is reasonably required or to perform any statutory duty or responsibility under any Act or Regulation. However, the Native Title Party's consent does not apply and is not necessary where a determination is made which does not recognise the native title as including a right to regulate or restrict access by others to those parties of the ILUA area.

Electricity Infrastructure

The electricity infrastructure that is subject to the above undertakings is electricity infrastructure in the ILUA area that:
- is relevant electricity infrastructure and relevant access tracks;
- has been constructed after the execution date in accordance with the Native Title Act 1993 (Cth); or
- has been constructed after the registration date in accordance with this ILUA.

Future Acts after Registration Date

The parties authorise and consent to the doing of any future act after the registration date in relation to any part of the ILUA area that is Aboriginal Land. However, this is subject to a condition that, at the time the future act is done, the entity holding the Aboriginal Land has given its written consent to the future act.

Minor works

The parties consent to and authorise Ergon Energy and its contractors to undertake minor works within the ILUA area. The parties agree to carry out minor works in accordance with certain procedures set out in Schedule 2.

The procedures out in Schedule 2 are that Ergon Energy will:
- where it is reasonably practicable to do so or required by law, give notice to the Native Title Party before undertaking that future act;
- use its best endeavours to limit inteference or damage to the ILUA area as reasonably possible;
- use its best endeavours to limit inteference with, and respect the privacy of, any of the Native Title Holders who may be in the ILUA area;
- perform minor works to the standard of skill and safety of a reasonably competent electricity entity under the Electricity Act 1994; and
- take reasonable measures to rehabilitate any damage or interference to the ILUA area as possible after the minor works have been completed.

The following future acts are 'minor works':
- tree lopping and tree clearing in the immediate vicinity of the infrastructure or required for the sale operation or use of the electricity infrastructure or for public safety in relation to the operation of the infrastructure;
- repairing any damaged electricity infrastructure;
- reinstating any damaged or destroyed electricity infrastructure to the pre-existing extent;
- maintaining electricity infrastructure;
- inspecting electricity infrastructure;
- installation of street light poles and service/intermediate poles that are tied into the existing powerline system in urban areas/town precincts only;
- accessing the ILUA area at reasonable times for the purpose of undertaking any of the above listed acts.

Native Title in the ILUA Area

The ILUA area falls within the Gugu Badhun native title area. The Gugu Badhun people's native title rights were recognised in the Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland determination. The consent determination was handed down in a Federal Court hearing on 1 August 2012 by Justice John Logan. The determination recognises the Gugu Badhuns ownership of an area of 6,540 square kilometres, located approximately 40 kilometres west of Ingham, Queensland. The determination recognises the Gugu Badhun People's exclusive and non-exclusive native title rights.

Related Entries

Agreement
  • Hoolihan on behalf of the Gugu Badhun People 2 v State of Queensland [2012] FCA 800
  • Organisation
  • Ergon Energy Corporation Limited - Signatory
  • Gugu Badhun Aboriginal Corporation - Signatory
  • Legislation
  • Native Title (Queensland) Act 1993 (Qld)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title Act 1993 (Cth)
  • People
  • Gugu Badhun People
  • Harry Gertz, Ernie Hoolihan, Hazel Illin, Narda Kennedy and Elsie Thompson on behalf of the Gugu Badhun People #2 - Signatory

  • References

    General Reference
    National Native Title Tribunal (24/01/2013) Gugu Badhun People and Ergon Energy ILUA Extract

    Documents

    Document
    Gugu Badhun People and Ergon Energy ILUA Map - ( PDF)
    Gugu Badhun People and Ergon Energy ILUA Description - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Body Corporate Agreement (Australia) | Future Act (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Legislation | National Native Title Tribunal (NNTT) (Australia) | Right To Negotiate (Native Title Act 1993 (Cth)) (Australia)

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