'The Holy Grail' or 'the Good, the Bad and the Ugly'?: A Qualitative Exploration of the ILUAs Agreement-Making Process and the Relationship between ILUAs and Native Title
(2010) 14(1) Australian Indigenous Law Review 71-85
16 Pages Posted: 27 Feb 2014
Date Written: February 25, 2010
The Indigenous Land Use Agreements ('ILUAs') scheme was identified as one of the positive features of the Native Title Amendment Act 1998 (Cth) ('NTAA'). The ILUAs scheme heralded a new age of agreement-making with Indigenous communities, offering a proverbial olive branch in that it extended to traditional owners the right to negotiate in good faith over future acts on traditional lands, whether or not native title had been determined. ILUAs also offered native title claimants a way of avoiding the 'imprudence of litigation'. ILUAs could potentially secure 'practical' native title rights for traditional owners, including monetary compensation for the use of land and/or employment opportunities. Purportedly, governments and project proponents now had a formal, fast and effective mechanism for negotiating with native title parties in relation to the 'doing of an act' on land where potential or proved native title rights existed. This is important considering that the native title adjudicative process is lengthy and its outcome uncertain. ILUAs might develop relationships between parties, beyond simply clarifying conditions for future acts on land subject to native title claim. For these reasons, and more, ILUAs presented a new 'risk management tool', facilitating the avoidance of disputes and litigation concerning the use of an area where native title is claimed to exist or has been determined to exist.
Whether or not ILUAs are the holy grail of agreement-making on land and/or water, subject to a potential or proved native title claims, is now questionable. Ruth Wade and Lisa Lombardi have noted that the usefulness of the ILUA scheme is contingent on parties understanding the scheme, the impact on native title of a proposed act, and the desired activity that the proponent/government wishes to undertake. Success is also dependent on there being plenty of time to negotiate, that the proponent/government views a long-term relationship with the Indigenous people who have claims to the land as important, and that compensation is a component of the agreement. Additionally, Malcolm Allbrook and Mary Anne Jebb have highlighted emerging problems associated with implementation and resourcing of ILUAs.
Keywords: Indigenous, Australia, native title, land rights, ILUAs, negotiation
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