Draft Protocol for Future Act Mediations in Relation
to the Proposed Grant of Mining, Exploring and Prospecting Rights
Introduction
1. The following document sets out a possible protocol which the parties may agree to adopt or modify for the conduct of negotiations between the State of Western Australia, <mining company> (the miner) and <name of Aboriginal people> being Aboriginal people who have registered a native title claim on land in the vicinity of <area> and those with whom they claim to hold native title.
Proposed Grant
2. The negotiations concern a proposal by the State of Western Australia to grant to <mining company> a mining tenement for the purpose of <activity> over land subject to the registered native title claim of <name of Aboriginal people>.
3. The State of Western Australia has published notices under s.29 of the Native Title Act 1993 in relation to the proposed project setting out its intention:
3.1 to grant a mining tenement, <no.>;
3.2 other.
Native Title Claimants
4. The registered native title claim has been lodged by the following:
4.1 WC
5. The registered claimants confirm that they are authorised to and will act in the interests of the native title holders with whom they claim native title rights and interests as well as in their own interests.
Representation
6. The registered claimants have appointed <name> (the claimants' representative) to represent them and all persons in the negotiations with whom they claim to hold native title.
7. The claimants' representative in seeking to ascertain the wishes and opinions of the claimants will conduct consultations with a view to maximising the likelihood of the claimants being able to make informed decisions in accordance with their traditional or preferred decision making process. This may involve meetings with claimants in particular contexts and groupings.
8. The State of Western Australia is represented by the following persons:
(a) <name>
9. <mining company> is represented by the following persons:
(a) <name>
10. Each of the parties reserves the right to change or add to its representatives as required, but will do its best to keep the same persons involved as representatives while these negotiations are proceeding. Any party proposing to change its representatives will promptly advise the other parties and the National Native Title Tribunal Mediation Team in writing.
Request for Mediation by Tribunal
11. By a letter sent on or about <date> , <name> made a request under the Native Title Act 1993 that the National Native Title Tribunal (NNTT) mediate among the parties to assist in obtaining their agreement in relation to the proposed future acts.
12. Discussions have already taken place between the parties prior to the request that the NNTT mediate (if applicable).
13. The parties wish, with the assistance of the NNTT, to set up a process for the orderly conduct of these negotiations and to use the services of the NNTT as mediator to the extent and in the ways indicated in this document.
14. The parties may, at any time, agree to vary or depart from the processes set out in this document.
Tribunal Mediation Team
15. The President of the NNTT has appointed the following persons as the Mediation Team in response to the request from <name>:
(a) <name> (Team Leader)
(b) <name>
Issues for Discussion
16. The parties and their representatives agree that the specific issues for discussion are as set out in Schedule 1 to this Protocol and that these may be discussed in the context of the general issues identified in that Schedule.
Communication between the Parties and Representatives
17. The representatives of the parties will ensure that, for the purposes of negotiation, they communicate with each other as representatives and not with the parties directly except as otherwise agreed between the representatives of the parties.
18. This does not preclude contact between the parties not forming part of these negotiations provided that if matters arise in such contacts which may significantly impact on the negotiations the claimants' representative is kept informed.
19. The representatives of the parties will, unless otherwise agreed by the parties, provide to the NNTT Mediation Team Leader on a confidential basis, copies of all communications between them relevant to these negotiations and will generally keep the Mediation Team advised of community liaison activities. Such advice should, wherever possible, be given in advance to aid in the co-ordination of matters relating to the negotiations.
Communications Without Prejudice
20. All parties agree that no statements made, understandings reached or interim agreements made in the course of negotiations or communications between the parties shall be legally binding upon any party unless expressly stated to be intended to have such an effect and authorised by the party. As a general rule any minute, exchange of letters or interim agreement or heads of agreement is to be treated as if it contains a provision that any of the parties is to have the opportunity to take legal advice and to further consult and to change its mind if so desired.
Role of the Tribunal
21. If differences arise between registered claimants or persons on whose behalf the claims are made in connection with these negotiations, members of the Mediation Team will be available upon request from the claimants to assist in the resolution of those differences together with such other NNTT members and staff as may be acceptable to the claimants. In the event that members of the mediation team render this assistance, the team will liaise with the representative body for the area appointed pursuant to s.202 of the Native Title Act 1993. They will endeavour to work co-operatively with any nominees of the representative body in assisting claimants to resolve their differences.
Consider special insertion relevant to position of the appropriate Land Council here.
22. Members of the NNTT Mediation Team will be available upon request by a party to attend a meeting of the party or associated persons who wish to discuss matters relevant to the negotiations. The details of things said at such meetings will be treated as confidential to the Mediation Team.
23. The parties may request the NNTT Mediation Team to attend any meeting between them and/or their representatives to assist in the negotiation process. The parties may, subject to this Protocol, agree to have meetings between themselves and their representatives without the involvement of the NNTT mediators.
24. All parties understand that the role of the NNTT Mediation Team as mediators does not empower them to give directions or make findings as to the process or substance of the negotiation.
25. The parties further agree that the NNTT Mediation Team shall not be asked to give evidence or to testify in any subsequent proceedings concerning the question whether the State of Western Australia or any other party has discharged its duty under the Act of negotiating in good faith with the native title parties.
Confidentiality
26. The parties agree that any information provided by any party to another in confidence is to be confidential to the parties and to the NNTT Mediation Team unless it is the subject of a written release by the party providing it.
27. The parties may enter into particular and binding agreements relating to the confidentiality, security, copying and return of information provided to any other party in connection with these negotiations. However, this does not imply that any party will be required to supply any information that it considers confidential.
Public Statements
28. From time to time press releases may be agreed between the parties informing the public of the general progress of negotiations. All such press releases will be made through the Media Liaison Officer of the NNTT .
29. The parties and their representatives agrees that while the negotiations are proceeding they will refrain from public discussion of any matters which are the subject of negotiation or the position being adopted or approach being taken by any party. However, each party reserves the right to respond to public comments, whether made b y the parties to the negotiations or otherwise, which it believes are prejudicial to the negotiations or its interests.
Without Prejudice Communications
30. The parties agree that all communications undertaken between them and to and from the Tribunal in relation to this mediation are to be regarded as "without prejudice" to the positions adopted by any party in any proceedings before the Tribunal as an arbitral body or in any other proceedings except proceedings relating to the question of whether the State of Western Australia or any other party has discharged its obligations to negotiate in good faith.
Termination of Mediation
31. The parties undertake and accept that if the NNTT Mediation Team forms the view that its further involvement in mediation is unlikely to assist in the reaching of an agreement, the NNTT Mediation Team may decide to recommend to the President that the provision of mediation services by the NNTT be terminated and the President may terminate them accordingly.
Provision of Information and Negotiation Sequence
32. The parties agree that the negotiations may include the provision of information to the claimants by the State of Western Australia and <mining company> and the provision of information by the claimants to the State of Western Australia and <mining company>. The information to be so provided will be as agreed from time to time. Ordinarily however, the parties should early in the negotiations give consideration to provision of information in the categories set out in paragraph 4 of Schedule 1.
33. The sequence of steps to progress the negotiations and the timeframe will be as set out in Schedule 2.
SCHEDULE 1
Negotiating Framework
1. General Issues
The parties agree that the following issues referred to in s.39 of the Native Title Act 1993 require consideration in the negotiations:-
1.1 the effect of the proposed acts upon:
1.1.1 any native title rights and interests asserted by the claimants;
1.1.2 the way of life, culture and traditions of the native title parties;
1.1.3 the development of the social, cultural and economic structures of any of those parties;
1.1.4 the freedom of access by any of those parties to the lands or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their tradition;
1.1.5 any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
1.1.6 the natural environment of the land or waters concerned;
1.2 the interests, proposals, opinions or wishes of the native title parties;
1.3 the economic or other significance of the proposed act to Western Australia and the nation;
1.4 the public interest in the proposed act.
2. Specific issues (to be refined by the parties - indicative only)
2.1 the nature and type of native title rights and interests claimed,
2.2 whether there can be a recognition of mutual rights and interests, including the right of Aboriginal people (general or specific) to be acknowledged as the traditional owners and inhabitants of the country;
2.3 whether the proposed act is able to be done in such a way that meets the claimants cultural, social and environmental concerns;
2.4 the effect of the proposed act on any native title rights and interests;
2.5 the form and content of any consideration including:
2.5.1 contract service opportunities for the members of the claimant group;
2.5.2 employment and training opportunities;
2.5.3 assistance with cultural and language research;
2.5.4 cultural awareness training for mining operation employees.
2.5.5 compensation.
2.6 cultural clearance and site protection;
2.7 rehabilitation of mine site and associated works;
2.8 ongoing consultation mechanisms and monitoring of agreement;
2.9 dispute resolution mechanisms;
2.10 access by the members of the claimant group to the mining tenement;
2.11 other elements of any agreement that might be reached.
3. Bases of Negotiation (to be refined by the parties- indicative only)
The parties will endeavour to agree upon common bases for negotiation relating to the general and specific issues identified including:
3.1 whether an agreement involving the conduct of exploration activities is possible;
3.2 whether an agreement involving the conduct of mining operations on site is possible;
3.3 whether undertakings can be given by <mining company> which will assist in meeting cultural, social and environmental concerns;
3.4 whether an agreement is possible involving consideration including provision for employment and training opportunities, contract service opportunities for members of the claimant groups, assistance with cultural and language research and cultural awareness training for mining operation employees; compensation and other matters.
3.5 whether agreement is possible about cultural clearance and site protection and rehabilitation of the site;
3.6 whether an agreement is possible which involves a mechanism for ongoing monitoring of the agreement with the traditional owners and for dispute resolution;
3.7 whether conditions can be attached to the grant of the mining tenement by the State of Western Australia which will assist in meeting cultural, social and environmental concerns.
4. Information Exchange (example only - refer clause 32)
4.1 A map showing areas of intended activity.
4.2 Levels of infrastructure required and location of such infrastructure.
4.3 Estimated life of the project and considerations which may affect the same.
4.4 Estimated workforce for project, construction and permanent.
4.5 Proposed means of access by staff to the mining tenement.
4.6 Levels of skilling required for workforce.
4.7 Drawing or model of the final project.
4.8 The nature of the connection enjoyed by the registered native title claimants with the land the subject of the claim and the specific native title rights and interests asserted and the manner of their proposed exercise.
Schedule 2
Provisional Timeframe (indicative only)
1. Preliminary conference to settle protocol.
2. Provision of Information by State and <mining company> to < name of Aboriginal people>.
3. Provision of information by <name of Aboriginal people> to State and <mining company>.
4. Advice from <name of Aboriginal people> on whether it can agree to grant on conditions.
5. Proposal by State and <mining company> as to conditions on which grant should be agreed.
6. Proposals by <name of Aboriginal people> concerning conditions upon which grant could be made.
7. Resumed meeting to consider terms of possible agreement.
8. Preparation of draft heads of agreement by Tribunal or one of the parties.
9. If heads of agreement are agreed, preparation of the final "ancillary" agreement - ancillary to the s. 34 agreement to be lodged with the NNTT.