Native title

Indigenous Land Use Agreements

Agreement making

A ‘future act’ is an activity or proposal that may affect native title interests. The Native Title Act provides protection for native title into the future by specifying the procedures that governments must follow before native title may be affected. Procedures will differ depending on the nature of the development activity proposed. The process does not give a native title party the right to veto grants, but does ensure that parties negotiate in good faith about the future act. Procedures include the right for traditional owners to comment, the right to be consulted, the right to negotiate, and matters to be considered in an agreement.

Under the Native Title Act, exploration or mining activity invokes the ‘right to negotiate,’ which provides an opportunity for native title parties to negotiate agreements with proponents. These agreements detail the conditions for undertaking the particular future act, including in some cases provision for employment and training, environmental or cultural heritage protection or compensation and payments. If the parties are unable to reach an agreement, a party may apply to the Native Title Tribunal for a determination.

However, specific procedures may apply in some States. For example, in Western Australia, exploration titles are processed through the expedited procedure, which is an exception to the right to negotiate.

Alternatively, the Native Title Act allows native title groups and other interested parties to voluntarily enter agreements known as Indigenous Land Use Agreements (ILUAs). ILUAs can cover both future acts (e.g. exploration or mining activity) and non-future acts (e.g. use and access agreements that regulate co-existing rights). When registered, ILUAs bind all parties and all native title holders to the terms of the agreement.

The National Native Title Tribunal has produced a series of fact sheets and guides about ILUAs.

The Centre for Social Responsibility in Mining has produced a guide on Agreement Making With Indigenous Groups including useful case studies of successful mining and resources development projects on native title land.

Case study

Argyle Mines, Western Australia - land mark participation agreement between Rio Tinto and traditional owners

2014 saw the tenth anniversary of the landmark Argyle Participation Agreement between Rio Tinto and the traditional owners of the mine, the Gija and Mirriuwung people. When the Participation Agreement was signed a decade ago, it set a new benchmark in Australia for land use agreements between resource companies and traditional owners: it created not only income streams for future generations of local Aboriginal people, but also significant training, employment and business development opportunities and a voice for Aboriginal people in mining decisions affecting their interests. For example, during the negotiation of the Agreement, Argyle provided an undertaking that was probably unique in the history of the mining industry: Argyle would not proceed with its plans for an underground mine without the approval of the traditional owners, despite the fact that this was not required by law.

One of the world’s largest Bauxite Mines - the Western Cape Communities Co-existence Agreement

The Agreement known as the Western Cape Communities Co-existence Agreement relates to one of the world’s largest bauxite mines now operated by Rio Tinto. It is also known as the Comalco Indigenous Land Use Agreement (ILUA). The signatories include 11 traditional owner groups in Queensland, four Indigenous Community Councils (Aurukun, Napranum, Mapoon and New Mapoon), Comalco Aluminium Limited and the Cape York Land Council on behalf of the native title parties. The Queensland Government is also a signatory and agreed to provide additional financial benefits on registration of the agreement. The ILUA covers two Mining Leases but includes consent for any "extensions, renewals or replacements" required to access and transport materials between the areas. The parties also consent to the Queensland Ports Corporation granting land and rights necessary for the operator to carry out their interests in the agreement area, which includes shipping goods in and out of Weipa. The ILUA specifies that this consent is not intended "to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection."