ACCESS CLEARANCE AND NATIVE TITLE MINING AGREEMENT
BETWEEN
(Explorer)
(ACN)
and
Native Title Representative Body
and
Native Title Claimant Group no. 1
and
Native Title Claimant Group no. 2
and
Native Title Claimant Group no. 3
THIS AGREEMENT is made on the day of 199 BETWEEN:
(Explorer)(ACN) the registered office of which is:
(Address)('Explorer') AND Native Title Representative Body [NTRB]
(Address) AND Native Title Claimants of (Address)
('Claimant No.1') AND Native Title Claimants of (Address)
('Claimant No.2') AND Native Title Claimants of (Address)
('Claimant No.3')
(The Native Title Claimant Groups 1, 2 and 3 are herein referred to collectively as "Claimants" but the expression may where applicable refer to only one such party)
WHEREAS
A. Explorer is earning an interest in certain Exploration Authorities granted by the Minister for Mines and Energy Resources pursuant to the Mining Act 1971 ('Mining Act') (particulars of which are contained in Schedule 1 hereto) over the land marked with the Mining Act registration numbers therefor on the map attached to Schedule 1 (which Exploration Authorities together with any extension, replacement, substitution or renewal thereof (or of any of them) are called 'Authority').
B. Claimant No.1 has lodged a native title claim over the land marked 'NNTT [NNTT Application Number]' on the map attached hereto.
C. Claimant No.2 has advised [NTRB] and Claimants No.1 and No.3 of their Native Title interests in the area marked '2 claim area' on the map attached hereto.
D. Claimant No.3 has advised [NTRB] and Claimants No.1 and No.2 of their Native Title interests in the area marked '3 claim area' on the map attached hereto.
E. [NTRB] is the representative body pursuant to the Native Title Act, 1993 (Commonwealth) for the lands referred to in paras B, C and D ("the claim areas") herein and has convened a working group of all claimants and potential claimants for native title in the region containing the claim areas
('Working Group').
F. The parties having negotiated in good faith intend this agreement to be:
(a) an agreement for identifying and recording where upon the area represented by the Authority land areas are either cleared or not cleared by Claimants for the purpose of authorising access by Explorer to carry out mining exploration operations (as defined in the Mining Act)('MEO'), to enable Explorer to comply with its obligations under the law relating to Aboriginal Heritage (including, without limitation the Aboriginal Heritage Act (1988) South Australia) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth); and
(b) a native title mining agreement for a conjunctive authorisation (as defined in section 63K of the Mining Act) for the purposes of Part 9B of the Mining Act. Following due initiation of negotiations by Explorer as a Proponent pursuant to section 63M of the Mining Act Explorer and Claimants have reached agreement for the method by which Explorer may be authorised to enter native title land (as defined in the Mining Act) and undertake MEO pursuant to its Authority and in compliance with Part 9B of the Mining Act.
G. Explorer's obligations under this Agreement are not dependent upon Claimants establishing native title over the area which is the subject of the Authority.
H. The parties acknowledge the principles governing the rehabilitation of any land affected by the MEO on completion of those operations pursuant to the terms of grant of Explorer's Authority.
IT IS NOW AGREED:
1. The recitals and the Schedules form part of this Agreement.
2. Explorer's Access
(a) Explorer must not carry out any MEO in any of the claim areas unless
(i) those areas have been the subject of an
(A) access clearance survey obtained by Explorer prior to the commencement of this Agreement, (which access clearance is acknowledged as valid by Claimants); or
(B) access clearance survey made pursuant to this Agreement and evidenced by a Report made in accordance with clause 10 of this Agreement ('AC'): or
(ii) pursuant to clause 10(g) of this Agreement.
(b) Access clearance pursuant to clause 2(a) authorises access to the area involved for Explorer's MEO.
(c) Explorer must provide a detailed exploration programme to [NTRB] as soon as practicable in accordance with clause 4(a) and Schedule 2 of this Agreement.
3. Term
This Agreement is intended to be a native title mining agreement pursuant to Part 9B of the Mining Act and accordingly shall commence on the date hereof and continue in accordance with section 63R of the Mining Act. However, upon a party ceasing to be a member of the Working Group and ceasing to claim or hold native title for an area contemplated by this Agreement that party shall automatically cease to be a party to this Agreement.
4. Access Clearance Request by Explorer
(a) An AC request must be made by Explorer to [NTRB] in a format which as nearly as practicable follows the list in Schedule 2 to this Agreement and which indicates the nature and extent of the proposed MEO.
(b) An AC request must be accompanied by copies of such notices, proclamations or guidelines to be supplied, obtained or met by Explorer before the Authority area is to be entered for the purposes of carrying out any MEO together with the principles governing the rehabilitation of any land affected by the proposed MEO on the completion of those activities in accordance with Explorer's obligations for rehabilitation pursuant to the terms of grant of its Authority.
(c) As soon as practicable but within 14 days after [NTRB] has been provided with the proposed MEO, [NTRB] must examine the same and either:
(i) notify Explorer the information provided is satisfactory or
(ii) request such further information as is reasonably required for due performance of the obligations of the Claimants under this Agreement.
(d) Upon [NTRB] requesting further information pursuant to the preceding paragraph Explorer must within 14 days of receipt of such request provide [NTRB] with such further information about the nature and extent of its proposed MEO as [NTRB] reasonably requires.
(e) Explorer must communicate with [NTRB] and Claimants within 14 days after receiving either notification referred to in paragraph (c)(i) or providing information referred to in paragraph (d) (as applicable) to discuss and agree the logistics and a commencement date reasonable for all parties for the requested AC.
(f) [NTRB] and Claimants must use their best endeavours to commence the AC on the commencement date agreed pursuant to paragraph (e).
(g) [NTRB] and Claimants must expeditiously complete the AC and deliver a report to Explorer in accordance with clause 10.
5. Access Clearance
[NTRB] for and on behalf of Claimants may authorise Explorer to access those areas set out in the AC for the purpose of conducting MEO.
6. Clearance Officer
[NTRB] must appoint a Clearance Officer to liaise between Explorer and Claimants on all aspects of the AC. Explorer must appoint a Clearance Officer to liaise between Explorer and Claimants on all aspects of the AC.
7. Scouting Team.
(a) Upon receipt of an AC request Claimants must, if a Scouting Team is necessary, as soon as practicable appoint a Scouting Team to carry out an AC survey.
(b) Claimants may engage as part of the Scouting Team such properly qualified specialists (for example, in fields such as Anthropology and Archaeology) ('Specialists') as are reasonably necessary for the efficient conduct of the AC survey.
(c) Claimants may engage a language interpreter as part of the Scouting Team if reasonably necessary for the efficient discharge of their obligations pursuant to this Agreement.
(d) Claimants and [NTRB] must ensure that the Scouting Team includes appropriate traditional owners for the area the subject of the AC request.
(e) The Scouting Team:
(i) may comprise up to two (2) appropriately qualified Specialists, to be appointed by and at the discretion of Claimants and who must be responsible for the co-ordination of the AC survey; and
(ii) must comprise such male and female Aboriginal advisers who have traditional responsibility for the AC area as Claimants think fit.
(f) The functions of the Scouting Team shall be to assess the AC request for the dual purposes of:
(i) Part 9B of the Mining Act; and
(ii) the law relating to Aboriginal Heritage including (without limitation) in order to determine whether Explorer's proposed MEO would be likely to damage, disturb or encroach upon Areas of Significance to Claimants. (An Area of Significance means an area of land within the claim area which is of cultural, social or spiritual significance to Aboriginal people traditionally responsible for that area and includes any "Aboriginal site" as defined in the Aboriginal Heritage Act 1988 (South Australia) and "significant Aboriginal area" as defined in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth).)
(g) Claimants may from time to time change the individual members of the Scouting Team provided:
(i) no unreasonable delay in the AC survey is thereby occasioned, and
(ii) at all times members of the Scouting Team have appropriate traditional responsibility for the land involved in the AC survey.
(h) Explorer must reimburse the reasonable and agreed cost of equipping the Scouting Team with the items set out in Schedule 3 which cost must be included in the budget to be prepared, agreed and adopted pursuant to clause 15.
8. Undertakings
Explorer covenants that during the Term:-
(a) It will only carry out MEO on areas for which access is authorised by and in accordance with the provisions of this Agreement and the Schedules;
(b) It will conduct its MEO in accord with good mining exploration industry practice and relevant statutory requirements; and
(c) If, at any time in the course of its MEO, Explorer identifies any Aboriginal burial site, archaeological or historical site or object, or any site or object which Explorer suspects to be an Area of Significance or an Aboriginal object, then Explorer must in addition to complying with its statutory reporting obligation promptly report the whereabouts of such site or object to either [NTRB] or to Claimants and pending AC or further AC in accordance with this Agreement, any such site or object, including the location of same, must be treated by Explorer as though no AC pursuant to this Agreement had previously been given in relation to that location. Any object so found shall be left without interference.
9. Completion of Access Clearance Activities
(a) Claimants must use their best endeavours to ensure that AC activities are carried out in a timely manner having due regard to the proposed timetables of Explorer and Explorer shall have due regard to the cultural and other traditional demands on Claimants.
(b) The parties must promptly meet and negotiate in good faith to resolve any timetable problems and any alternative AC's suggested by Claimants during the course of an AC survey. Explorer must, wherever practicable, schedule work to avoid standbys due to the inability of Claimants to carry out an AC. Claimants must ensure that AC is carried out with due diligence and to minimise expense incurred to Explorer by being unable to productively deploy its staff and independent contractors.
(c) Explorer may indicate within the AC request what areas are of priority to Explorer and Claimants must use their best endeavours to give priority to AC for those areas.
(d) [NTRB] must promptly notify Explorer in writing upon completion of an AC survey.
10. Report following Survey
(a) As soon as practicable but within 21 days after completion of the AC survey, [NTRB] must give Explorer a report identifying all parts of the area included in the AC request:
(i) which are cleared by Claimants for the purpose of access by Explorer for Explorer's MEO; and
(ii) which are not cleared by Claimants for the purpose of access by Explorer for Explorer's MEO; and
(iii) for which any alternative clearances are offered in lieu of those sought in the AC request,
and setting out any conditions attaching thereto in accordance with section 63Q(3)(a) of the Mining Act ('Report').
(b) If Explorer is satisfied with theReport, it must notify [NTRB] in writing of its acceptance of the Report (and specifically acknowledge acceptance of alternative clearances offered and of conditions specified in the Report) as soon as practicable.
(c) If Explorer is dissatisfied with a Report or alternative clearances offered or conditions contained in the Report, Explorer and Claimants must negotiate in good faith with a view to resolving the dispute. If the parties are unable to resolve the dispute, any party may refer the matter for resolution pursuant to Clause 19.
(d) If the dispute is resolved Claimants must promptly provide a Report, or an amended Report, as appropriate, and [NTRB] as agent for Claimants must, forthwith upon resolution of the dispute, provide to Explorer for and on behalf of Claimants the Report or amended Report (as the case may be) that accords with the terms upon which the dispute was resolved.
(e) A Report must specify reasonable matters to be observed by Explorer and any reasonable conditions to be met before the AC land is entered for the purposes of carrying out the MEO.
(f) If Explorer has not received the Report at the expiration of fourteen (14) days following the due date for its delivery to Explorer or upon the expiration of 90 days from the date upon which Explorer's AC request was given to [NTRB] (whichever first occurs), Explorer may give written notice to [NTRB]:
(i) seeking delivery of the Report or a reasonable explanation for its delay within seven (7) days from delivery of the notice upon [NTRB];
(ii) and may state that in the absence of receipt of the Report or of a satisfactory explanation for its delay within the time specified in the preceding sub-paragraph Explorer intends to proceed with its MEO as described in the AC Request.
(g) Where Explorer has given a notice pursuant to the preceding paragraph including a statement to the effect of sub-paragraph (ii) thereof, Explorer may, after the notice period of seven (7) days has elapsed, and provided the Report or a reasonable explanation for its delay has not been received, proceed with its MEO as described in the AC request.
11. Agreement
(a) Upon acceptance by Explorer or resolution of a Report pursuant to Clause 10 of this Agreement or if clause 10(g) applies, Claimants will be taken to have authorised:
(i) for the purposes of the law relating to Aboriginal Heritage; and
(ii) for the purposes of Part 9B of the Mining Act,
Explorer's access to all areas involved for the purpose of Explorer's proposed MEO.
(b) Explorer must lodge for registration as a native title mining agreement for mineral exploration a copy of this Agreement in compliance with its obligation so to do pursuant to section 63Q(4) of the Mining Act and may similarly lodge with this Agreement any Report.
12. No obligation to disclose cultural information
Nothing in this agreement compels [NTRB] or Claimants to disclose to Explorer the location, significance or any cultural information about sites or any traditional interests in the lands the subject of this Agreement.
13. Claimant Obligations
(a) Explorer may proceed with MEO pursuant to Clause 10 without any interruption from or through Claimants or [NTRB].
(b) Claimants covenant with Explorer not to make any further claim or claims for native title over the claim areas the subject of this Agreement unless the claimant has first covenanted to be bound by the obligations of this Agreement. Claimants and [NTRB] must use their best endeavours to ensure any third parties proposing to make a claim for native title over the areas the subject of this Agreement first join the Working Group and covenant to be bound by the obligations of Claimants under this Agreement.
(c) [NTRB] and Claimants must ensure all vehicles and equipment loaned or hired for the purposes of this Agreement are properly and adequately insured for loss or damage to property and injury or death to persons and that any equipment loaned by Explorer will be returned in good working order and condition.
(d) [NTRB] and Claimants acknowledge they are independent contracting parties from Explorer and nothing in this Agreement is to be construed as creating any other legal relationship between them and Explorer. Explorer does not assume any legal liability for personal health or safety of members of [NTRB] or of Claimants or of the Scouting Team and each of [NTRB] and Claimants indemnifies and agrees to keep indemnified Explorer from and against all such legal liability and as a separate and independent covenant indemnifies and agrees to keep indemnified Explorer for the cost of claiming the benefit of the first mentioned indemnity and similarly this indemnity.
14. Co-operation
(a) Explorer must, as far as practicable, use only roads and tracks existing or to be established or formed on the land for the purposes of its MEO unless otherwise specified in a Report. Explorer agrees to avoid departing from those roads and tracks where Claimants identify in their Report areas thereof which are culturally sensitive to Claimants.
(b) Explorer must take all reasonable steps to minimise interference with the free movement of Claimants throughout the land and their pursuit of customary and traditional activities.
(c) Explorer may reasonably restrict access to agreed MEO locations, camps and depots for reasons of security and safety.
15. Budget
(a) [NTRB] must prepare an AC budget for each AC request submitted by Explorer. Claimants must calculate their anticipated costs (including, without limitation, those referred to in clause 7(h) and Schedule 4) for inclusion in the budget for Explorer's agreement and adoption prior to being incurred, which calculations may include a contingency sum of up to 10% of the amount so calculated.
(b) Budgets must be agreed with and adopted by Explorer prior to the commencement of AC surveys.
(c) Explorer must pay all reasonable costs, fees, disbursements and expenses incurred by [NTRB] and Claimants in accordance with the agreed and adopted budget in carrying out the AC, subject to any agreement in writing to the contrary between the Parties.
(d) Where the AC survey is conducted on other adjoining or adjacent Mining Act authorities held by persons not party to this Agreement the costs may be borne and paid by all the authority holders in proportion to the areas of their authorities to be cleared or as otherwise agreed between them.
16. Payments and Audit
(a) Upon adoption of a budget pursuant to clause 15(b) Explorer must make payments calculated as:
(i) one quarter thereof upon adoption of the budget;
(ii) one-half thereof upon receipt of written notification (signed by or for and on behalf of Claimants) of completion of the AC survey; and
(iii) the balance of actual expenditure incurred within the agreed and adopted budget, subject to any adjustments upon audit, upon receipt of the Report to be issued pursuant to clause 10 of this Agreement.
(b) [NTRB] must account for and audit all expenses incurred in accordance with agreed and adopted budgets and provide Explorer with copies of all invoices and receipts for claimed expenditure. [NTRB] must audit all expense accounts in such manner as Explorer requests. If no request is received it is to be accounted for in the same manner in which [NTRB] is required to account for grants from the Commonwealth Government. Explorer shall not be liable for any expenditure not properly documented or for expenditure not authorised by an agreed and adopted budget. In the event of Explorer making any over-payment the amount overpaid must be refunded promptly upon being discovered.
17. Assignment
Explorer remains at liberty to assign or transfer its interest or any part thereof in any Authority and in this Agreement subject always to section 63R of the Mining Act.
18. Confidentiality
(a) This Agreement is confidential between the parties. A copy must be given by Explorer to the State Minister for Mines and Energy Resources and may be given by the parties to the State Minister for Aboriginal Affairs.
(b) Any information relating to sites or traditional knowledge which is disclosed by Claimants is the property of Claimants and Claimants hold copyright over such information, and retain control over its use. Explorer must except to any extent required by law keep confidential all such information.
(c) All information relating to mineral exploration which is disclosed by Explorer to Claimants and [NTRB] (or to either of them) remains the property of Explorer. Claimants and [NTRB] must keep confidential all such information.
(d) Nothing in this Agreement shall be construed as restricting the right of Explorer to meet its reporting obligations to a Stock Exchange or according to the law of any jurisdiction with which Explorer is obliged to comply or to disclose information to a body corporate to which it is related for the purposes of the Corporations Law.
(e) Explorer may, upon obtaining undertakings of commercial confidentiality, disclose details of this Agreement and of any Authorisation to any third party (including without limitation the financiers and professional advisors of that third party) with whom Explorer proposes to conduct commercial negotiations relating to its business.
19. Dispute Resolution
If there is a dispute between the parties they must meet in good faith and use their best endeavours to resolve it. If they are unable to resolve the dispute;
(a) and the dispute pertains to matters preventing conclusion of this Agreement as an authorisation for access to land pursuant to Part 9B of the Mining Act which cannot be resolved through mediation (whether by the National Native Title Tribunal or the Environment Resources and Development Court or by another agency agreeable to Explorer and Claimants) any party may apply to the said Court for a determination pursuant to section 63S of the Mining Act.
(b) and the dispute pertains to matters arising after this Agreement operates as an authorisation for the purposes of Part 9B of the Mining Act any party may apply to the National Native Title Tribunal or the Environment Resources and Development Court or another agency agreeable to Explorer and Claimants for mediation or for the appointment of an Arbitrator (to act in accordance with the Commercial Arbitration Act 1986) to resolve the dispute.
20. Applicable Law
This agreement is governed by the laws of the State of South Australia.
21. [NTRB] as Agent
(a) For the purpose of Claimants carrying out any function or activity specifically or impliedly provided for herein, including without limiting the generality of the foregoing, the receipt of monies or notices and the giving of notices or Authorisations, Claimants hereby jointly appoint [NTRB] as their agent for this purpose and the parties acknowledge that Explorer may act on the basis that [NTRB] is acting within that agency as contained herein until such time as Explorer receives written notice from Claimants or [NTRB] of the revocation of such agency. Claimants are obliged to forthwith give notice to Explorer upon taking any measure by which the agency may be terminated.
(b) The parties acknowledge that:-
(i) in carrying out any act pursuant to the agency in this Clause, [NTRB] will be obliged to consult with Claimants to satisfy itself that Claimants understand the nature and purpose of the proposed act and, as a group, consent to it; and
(ii) Claimants may be taken to have consented to a proposed act if, where there is a particular process of decision-making under their Aboriginal tradition which must be complied with in relation to that decision, the decision was made in accordance with that process.
(c) In the event of termination of [NTRB]'s agency Claimants must appoint a substitute agent which agent must by deed of assumption assume the rights and obligations of [NTRB] evidenced by this Agreement.
(d) Termination of [NTRB]'s agency for any purpose shall not affect the validity of this Agreement or any Report or decision made pursuant to this
Agreement prior to Explorer receiving actual notice of that termination.
22. Transitional Land
(a) Should any Authority not be subject to Part B of the Mining Act ('Part 9B') this Agreement is to be read as though all references to Part 9B were omitted from this Agreement.
(b) In the event of any land comprised in any Authority
(I) not being subject to Part 9B at the date of this Agreement
(ii) subsequently becoming subject to Part 9B and
(iii) Explorer initiating negotiations by operation of section 63M of the Mining Act; then
(b) this Agreement (including all references to Part 9B) shall be adopted as an Agreement negotiated under Division 4 of Part 9B and any Report issued pursuant to this Agreement shall constitute good authorisation for access to land pursuant to Part 9B in accordance with the terms of that Report.
(c) Nothing contained in this clause prevents the parties from making any further agreement by way of variation to this Agreement or otherwise at any time.
The Parties hereto have executed this Agreement.
THE COMMON SEAL of ) Explorer was )
duly affixed in the presence of: )
EXPLORATION AUTHORITIES HELD PURSUANT TO MINING ACT
1. EL
2. EL
(Map to be attached showing numbered tenement areas)
SCHEDULE 2
Access Clearance Request
An AC request must, where relevant, include the following:
1. Two copies of Explorer's relevant Exploration Authorities.
2. Two copies of a 1:100,000 topographical or equivalent map and such other additional maps as may reasonably be required of each relevant Exploration Authority clearly identifying:
(a) the areas over which clearance is sought
(b) the location of any proposed camp or dump sites or recreation areas; and
(c) the proposed access routes for personnel and equipment, both to and within the Exploration Authority area.
3. Particulars of the proposed MEO including:
(a) The nature and extent of the MEO;
(b) The estimated duration of the MEO;
(c) The means of access to undertake the MEO;
(d) The number of personnel involved and their roles in undertaking the MEO;
(e) Any reasonably foreseeable effects of the MEO on the environment or Claimants;
(f) Proposals to minimise the impact of the MEO on the environment or Claimants;
(g) The proposed use of any natural resources;
(h) Any other items Explorer believes relevant.
SCHEDULE 3
REIMBURSEMENT FOR SCOUTING TEAM PROVISIONS
In accordance with clause 7(h)
1. any additional maps requested by the Clearance Officer;
2. the hire of up to three (3) all-terrain vehicles sufficient for the adequate transportation of necessary personnel each supplied or equipped with at least one long range tank-load of fuel and adequate initial water storage for the use of the Scouting Team in connection with Claimants' obligations hereunder, together with one two-way radio in operating condition and necessary vehicle spares and one (1) suitable trailer;
3. adequate further supplies of fuel for the said vehicles and of food and water for members of the Scouting Team;
4. the hire of suitable camping facilities, including cooking and eating utensils, at least one gas light and an adequate supply of tarpaulins for shelter;
5. use of a NAV-SAT Global Positioning System; and
6. such other logistical support as the Scouting Team may reasonably require.
SCHEDULE 4 RATES OF PAYMENT
Budget Items - Clause 15(c)
For the cost of the Claimants employing the services of the Scouting Team at the following rates -
(a) for each Specialist up to the sum of six hundred dollars ($600.00) for each day for which their attendance is reasonably required for the purposes of the Claimants' compliance with this Agreement, together with the reasonable costs of travel to and from their place of residence within Australia; and
(b) for each other member of the Scouting Team, up to the sum of two hundred and fifty dollars ($250.00) per day PROVIDED THAT the Explorer's liability pursuant to this sub-paragraph (b) is limited to payment or reimbursement in respect of a maximum of four (4) male Aboriginal advisers and of four (4) female Aboriginal advisers; and
(c) for each language interpreter up to the sum of three hundred and fifty dollars ($350.00) for each day for which their attendance is reasonably required for the purposes of the Claimants' compliance with this Agreement, together with the reasonable costs of travel to and from their place of residence within Australia.