Agreements, Treaties and Negotiated Settlements Project

Esperance Nyungar Government Indigenous Land Use Agreement (ILUA)
Date:	24 April 2014
Sub Category:	Indigenous Land Use Agreement (ILUA) (Native Title Act)
Place:	Located in the vicinity of Esperance
State/Country:	Western Australia, Australia
	The Agreement Area covers about 27,000 sq km in the area surrounding Esperance in the State of Western Australia.

Legal Status:	Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 21 November 2014. This is an Area Agreement under the Native Title Act 1993 (Cth).
Legal Reference:	National Native Title Tribunal File No.:WI2014/006
Subject Matter:	Access \| Land Management \| Land Use \| Mining and Minerals \| Native Title
URL:	http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/ILUA_details.aspx?NNTT_Fileno=WI2014/006
Summary Information:
Esperance Nyungar Government ILUA is an Area Agreement between: - State of Western Australia; - Veronica Williams-Bennell, Diane Clinch, Jarman Jamieson, Graham Tucker, Elaine Bullen and Jenny Woods for and on behalf of the Esperance Nyungars Native Title Group; - Minister for Lands; - Minister for Environment; - Minister for Mines and Petroleum; - Minister for Water; - Conservation Commission of Western Australia; and - Conservation and Land Management Executive Body. The purpose of the Agreement is to
Detailed Information:
Commencement This ILUA was registered with the Register of Indigenous Land Use Agreements on 21 November 2014. The Extract does not provide a specific start or end date for the Agreement. The Agreement does note, however that the Agreement commences on the Execution Date, being 24 April 2014. There are a number of Clauses which instead commence on the Commencement Date, being 21 November 2014. Those Clauses are: clauses 5.1 to 5.6 (inclusive), 5.8, 6, 9, 10, 17, 19.1, 19.3 and 22. Clauses 12, 13, 14, 15 and 19.2 commence on the Assignment Date, being the date on which the Deed of Assignment is fully executed. The Agreement continues indefinitely, but will terminate if any of the following events occur: (a) clause 7.5(a) (dealing with the consequences of non-registration) comes into effect; (b) all Parties agree in writing to end the Agreement; (c) the Determination is revoked in accordance with the Native Title Act ('NTA'); (d) the Agreement is removed from the ILUA Register by the Native Title Registrar in accordance with section 199C of the NTA. Native Title Provisions For the purposes of s24EB of the NTA each party to the Agreement consents to: a. the grant of Exploration Tenements in the Agreement Area; b. the grant of Access Authorities in the Agreement Area; c. the grant of LA Act Licences in the Agreement Area; d. the doing of Deemed Low Impact Future Acts by the State and Government Parties in the Agreement Area; and e. the doing of PBC Land Acts in the Agreement Area. Future Acts The consent to the doing of Future Acts under Clause 5.2 extends to consent for the exercise of any right or obligation created by those future acts, including the doing of any Activity or the granting of any Tenure in exercise of that right or obligation , by the person on whom the right or obligation is conferred. Extinguishment The parties to the Agreement agree that, upon transfer in fee simple to the Land Company of each parcel of Freehold Land, the Native Title rights and interests in that parcel of land are surrendered and extinguished. The Right to Negotiate does not apply to any of the acts referred to in Clause 5.2. Access Authority Access Authority is defined to include any: (a) a miscellaneous licence under the Mining Act; (b) a LA Act Licence granted by the State or a Government Party, as applicable, to the holder of an Exploration Tenement to provide solely for access, or which may be used only for the purpose of obtaining access, through the Agreement Area to an Exploration Tenement. Deemed Low Impact Future Act Means any future act that, prior to the Determination, would have been a future act falling within the description in section 24LA(1)(b) of the NTA, but ceased to be so solely because the Determination was made. Such an Act is a future act that does not consist of, authorise or otherwise involve: (a) the grant of a freehold estate in any of the land or waters; or (b) the grant of a lease over any of the land or waters; or (c) the conferral of a right of exclusive possession over any of the land or waters; or (d) the excavation or clearing of any of the land or waters, other than: (i) excavation or clearing that is reasonably necessary for the protection of public health or public safety; or (ii) tree lopping, clearing of noxious or introduced animal or plant species, foreshore reclamation, regeneration or environmental assessment or protection activities; or (e) mining (other than fossicking by using hand-held implements); or (f) the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or (g) the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance. Exploration Tenement Means any of the following types of titles, located wholly or partly within the Agreement Area: (a) the following mining tenements under the Mining Act: (i) an exploration licence; (ii) a prospecting licence; (iii) a retention licence; (iv) a special prospecting licence; (b) the following authorities or permits under the PGER Act: (i) a special prospecting authority; (ii) an access authority; (c) any other mining tenement under the Mining Act (not being an Access Authority) or authority, lease, licence or permit under the PGER Act (not being an Access Authority), the grant of which would, apart from the effects of this Agreement, be an act attracting the expedited procedure. Native Title in the ILUA Area This Agreement is "the first such agreement to be reached in Western Australia, although several other similar agreements are currently being negotiated around the State" (http://www.dpc.wa.gov.au/lantu/Agreements/Pages/TheEsperanceNyungars.aspx) The Agreement applies to the Esperance Nyungar determination area and includes a standard heritage agreement for use by Government agencies and resource explorers. The Agreement provides alternative future act processes which are essentially aimed at facilitating cost-effective exploration activity. The above mentioned website states that the benefits to the Esperance Nyungars PBDC will include: "- an annual income stream based on 25% of the annual rental for exploration tenements; - funding for strategic planning to inform governance requirements and economic opportunities; - PBC administrative support funding allocated over a five year period; - funding to assist a heritage and site identification project leading to registration on the Department of Aboriginal Affairs' Register of Aboriginal Sites; - a land tenure package, including transfers in freehold and reserve management arragements; and - funding to support the development of the Esperance Nyungars land portfolio, including management plans, feasibility studies and rezoning costs."