This article is adapted from the presentation by Special Counsel Georgina Reid and Senior Lawyer Reade Allison for LegalWise in May 2023.
An Indigenous Land Use Agreement (ILUA) is an instrument used to negotiate or address native title or related matters under sub-division P of the Native Title Act (NTA).[1] It is not an ordinary contract, but an agreement between native title and non-native title parties about the use and management of communally held land and/or waters the subject of native title. ILUAs are entered into voluntarily and may be used for instance to give consent to acts that may affect native title rights, retrospectively validate acts done invalidly, change the extinguishing effect of certain acts, surrender native title rights and resolve native title compensation.
There are several characteristics that make ILUAs a special kind of contract. Their terms are often indefinite, any extinguishment to native title is permanent and any compensation is often given as ‘full and final’. Moreover, once registered, an ILUA will be binding on the whole native title group, including future generations of native title holders. The binding and long-term effects of an ILUA must be appreciated against the contextual and continuously negotiable governance processes that often underly their negotiation by a native title party, particularly where the consequences, scale and impact of prospective future acts are often not fully determined at the time of negotiation.
This gives rise to a number of considerations that a practitioner must have regard to when assessing their legal ethical duties as they apply to such negotiations. This includes considerations about who their client is, whose interests are being represented and what standards of consultation are being applied. Lawyers will need to decide on a case-by-case basis what their ethical obligations broadly mean and how to follow them in the specific context of ILUA negotiations. Such an assessment will be necessary for the success, perceived legitimacy and long-term viability of any negotiated outcome.
A checklist of ethical considerations in the context of ILUA negotiations can be found here.
[1] Native Title Act 1993 (Cth)