Initial Indigenous Land Use Agreement (ILUA) Tjiwarl and Nickel West Comprehensive Agreement

Midwest region

Registered with the National Native Title Tribunal (NNTT) on the Register of Indigenous Land Use Agreements on 8 January 2019. This is an authorised Body Corporate Agreement under the Native Title Act 1993 (Cth).

The Initial Indigenous Land Use Agreement (ILUA), Tjiwarl and Nickel West Comprehensive Agreement, was agreed under the provisions of the Native Title Act 1993 (Cth), between the following parties:

• BHP Billiton Nickel West Pty Ltd (Nickel West);
• BHP Billiton Yakabindie Nickel Pty Ltd; and
• Tjiwarl (Aboriginal Corporation) RNTBC.
  

The agreement area covers about 705 sq km, and is located generally north of the township of Leinsten, approximately 37 km southeast of Wiluna and 110 km northwest of Leonora.

The purpose of the agreement is for parties to consent to the doing of agreed acts relating to Nickel West's business interests, those being the exploration, mining, transport, processing and treatment of minerals in the Goldfields region, for mining and infrastructure purposes in the ILUA area.

The Native Title Representative Body for this area is Central Desert Native Title Services.

Agreement area:

The area covers approximately 705 sq km and is located generally north of the township of Leinster, approximately 37 km south east of Wiluna and 110 km north west of Leonora. The initial ILUA area, described as all lands and waters subject to native title determination WAD228/2011, WAD302/2015 Tjwarl and Tjwarl #2 (WCD2017/001), is limited by the exclusion of the following areas:

• all land and waters the subject of Native Title determination WAD6164/1998, WAD248/2007, WAD181/2012, and WAD108/2016 Wiluna (WCD2013/004);
• all leases detailed as infrastructure areas in attached schedule 1; and
  
• the agreed mining area under mining lease M36/4. For a detailed description of the external boundary of this area see the attached schedule 1.
  

Commencement:

Procedural clauses commenced operating on the date on which the agreement was signed by all the parties (the 'commencement date'). The agreement started to have effect when it was registered on 8 January 2019.

Termination:

The agreement will terminate when one of the following circumstances takes place (whichever occurs first):

• termination of the deed of agreement between Nickel West and Tjiwarl Aboriginal Corporation;
• agreement of termination in writing between Nickel West and Tijwarl Aboriginal Corporation; or
• the removal of this ILUA from the Register of Indigenous Land Use Agreements.
  

Native Title Provisions:

Right to negotiate

The parties agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) do not apply to the agreed acts.

Extinguishment

The parties agree that this ILUA does not extinguish native title rights and interests according to s 24EB(4) of the Native Title Act 1993 (Cth). Therefore,any acts by Nickel West related to their mining and infrastructure interests in the area do not extinguish native title rights and interests, rather the native title rights and interests will be revived once this agreement ends.

Future act provisions

The agreed acts to which the parties have consented are divisible into three categories - acts related to Nickel West's business that apply to both mining and infrastructure activities in the ILUA area, additional acts relating to Nickel Wests' mining interests in the area, and additional acts relating to Nickel West's infrastructure interests in the area.

For the purpose of this agreement, an 'interest' has been defined to include:

• a legal or equitable interest in the land or waters;
• a legal or equitable interest in a mining tenement;
• a right to mine, quarrt, extract or explore for minerals or water;
• any freehold title, lease, easement, or license granted by a Government agency under statute;
• a contractual license to use land; and
• power over land or waters.
  

The agreed acts relating to Nickel West's business include:

• all elements of exploration, mining, transport, processing and treatment of minerals;
  
• quarrying;
• operations, facilities, works and infrastructure for accommodation, energy supply, water supply, communications, roads, tracks, airports, railways, conveyors, other transport infrastructure and other supporting infrastructure;
• the planning, design, maintenance, operation, decommissioning and rehabilitation of the above things;
  
• all developments of and changes and expansions to any of the above things; and
• any other acts or things incidental to this business.
  

The additional agreed acts relating to Nickel West's mining interests include:

• mining or exploration within the agreed mining area (detailed in schedule 1);
• any acts for or in connection with Nickel West's business as on the commencement date of this agreement;
• any acts for or in connection with Nickel West's business acquired, granted or held after the commencement date of this agreement; and
• the application for any approval (that being an authorisation, license, permit, approval, certificate, consent, direction or notice) in connection with the acts detailed above.

The additional agreed acts relating to Nickel West's infrastructure interests include:

• maintenance and use of any infrastructure within the agreed mining area;
• maintenance and use of any infrastructure outside the agreed mining area, but wholly or partly in Tjiwarl Country, required for or in connection with mining, transport, processing and treatment within the agreed mining area; and
  
• maintenance and use of any infrastructure in connection with Nickel West's business.
  

Native Title in the Agreement Area:

This agreement is located within the native title determination area of the Federal Court of Australia (FCA) proceeding Narrier v State of Western Australia (no 2) [2017] FCA 104. (FCA File No.: WAD228/2011 and WAD302/2015, NNTT File No.: WCD2017/001).

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