Strathgordon/Cook Shire Council Indigenous Land Use Agreement (ILUA)
|Date: ||12 January 2010|
|Sub Category:||Indigenous Land Use Agreement (ILUA) (Native Title Act)|
|Location:||Cape York Peninsula, Queensland, Australia|
|The area covered by this Indigenous Land Use Agreement (ILUA) comprises approximately 1,200 square kilometres of land on the Southwell Pastoral Lease (Lot 2 on Plan CP911380). The area is known locally as the Strathgordon Pastoral Lease. It is located on the Cape York Peninsula, approximately 220 kilometres south of Weipa in the state of Queensland. The ILUA area falls 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 12 January 2010. This is an authorised Area Agreement under the Native Title Act 1993 (Cth).|
|Legal Reference: ||National Native Title Tribunal File No. QI2009/028.|
|Subject Matter:||Access | Housing, Construction and Infrastructure | Native Title|
|Summary Information: |
|The Strathgordon/Cook Shire Council Indigenous Land Use Agreement (ILUA) was agreed between:|
the Cook Shire Council;
the Thaa-Nguigarr Strathgordon Aboriginal Corporation; and
Mr Timothy James Malachi, Mr Gavin James Kendall, Ms Isobella Jennifer Colemen, Mr Danny Timothy Coleman, Mr Horace Lowdown, Mr Freddie Glen Coleman, Mr Paul Michael John Ballie,
Mr Ivan James Ned on behalf of the Strathgordon Mob (being the native title claimants in the consent determination of Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland  FCA 1084).
This ILUA is the product of negotiations leading up to the abovementioned consent determination. This consent determination recognised the existence of the Strathgordon Mob's native title rights and interests over the Strathgordon Pastoral Lease, including the exclusive right to possess, occupy, use and enjoy the land.
The purpose of this ILUA is to clarify how the Cook Shire Council shall proceed with future works that are to be performed on the land.
|Detailed Information: |
|Consent for the continued operation, use and maintenance of specified infrastructure|
The parties consent to the continued operation, use and maintenance of 'Non-Extinguishing Infrastructure' by the Council. They also consent to the use of land on which such infrastructure is built, or that of land adjacent to the infrastructure.
The definition of 'Non-Extinguishing Infrastructure' is not provided in the National Native Title Tribunal Extract. However, in similarly-worded ILUAs entered into between Cook Shire Council and various native title holders, infrastructure has been deemed to be 'Non-Extinguishing Infrastructure' where:
it was constructed on or before the commencement date of the ILUA (in this case, 12 January 2010);
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 to this ILUA also give their consent to the doing of certain 'Approved Future Acts'. Future acts become Approved Future Acts if certain procedural steps are carried out. These steps are listed as follows:
The Council must provide a 'Proposed Activity Notice' which details, among 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 a prescribed period, 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 timeframe, in which case the work or activities cannot immediately commence.
Where the native title parties fail to provide either notice within the alotted timeframe, consent will be deemed to have been given.
Where a 'Refusal Notice' has been provided by the native title parties, 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.
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 in Schedule 3 of the ILUA. Schedule 3 is not included in the Agreement Extract that is available on the National Native Title Tribunal Register of Indigenous Land Use Agreements. However, 'Minor Works or Activities' have been previously defined in similarly worded ILUAs entered into between Cook Shire Council and native title claimants.
Previous examples of 'Minor Works or Activities' 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;
repairs to such infrastructure;
the reinstatement of any destroyed infrastructure;
the inspection of such infrastructure;
the maintenance of such infrastructure;
the fencing or barricading of such infrastructure; and
the erection of sign posts.
Right to negotiate provisions
The parties agree that the right to negotiate provisions in Subdivision P, Division 3, Part 2 of the Native Title Act 1993 (Cth) do not apply to any future acts for which consent has been given under this ILUA.
Native title in the ILUA area
The ILUA area is located within the Determination Area of native title made in the proceeding Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland  FCA 1084 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. This ILUA entitles the parties to circumvent these provisions.