Editor's Note: The South Australian Government has kindly agreed to the following draft agreement being entered onto the database. Please refer to the attached "word" document to view the draft agreement in its original form.
Draft 1 / 12 June 1998WITHOUT PREJUDICE
DRAFT AREA AGREEMENT
This document is currently the subject of discussions with key stakeholders and is likely to be substantially modified as a result. It was circulated in the following form in June 1997. Note that the definitions require further work.
Note: This draft has been prepared for discussion purposes only. It does not represent the final views of the SA government. Those final views will only be determined following upon broad consultation by the government on what might be included in such an agreement if one were to be entered into.
AGREEMENT
BETWEEN:
MINISTER FOR THE ENVIRONMENT AND NATURAL RESOURCES (the "Minister") for and on behalf of the Crown in right of the State of South Australia (the "State") in its own right and as agent;
AND
The person named and described in item 1 of Schedule Two, both as principal in its own right and as agent for and on behalf of each of the Aboriginal Communities specified in item 2 of Schedule Two (the "Representative" and the "Aboriginal Communities" respectively);
RECITALS
A. The Minister has granted, pursuant to the Pastoral Land Management and Conservation Act, 1989 (the "Pastoral Act"), the pastoral leases (the "Pastoral Leases") specified in item 3 of Schedule Two in respect of the land specified in item 4 of Schedule Two (the "Land").
B. The Representative represents the Aboriginal Communities who assert that their ancestors used and occupied the Land or various portions of the Land in accordance with their law, tradition and custom and that subsequent generations of their people have continued to maintain a relationship with the Land. Based on this claimed traditional connection with the Land, the members of the Aboriginal Communities assert that they hold native title or native title rights and interests in respect of the Land or various portions of the Land or that they have a traditional relationship with the Land or various portions of the Land.
C. Whether native title or native title rights exist in respect of the Land or not, the Aboriginal Communities have rights conferred by section 47 of the Pastoral Act which they intend to exercise in the future. Further, the Aboriginal Communities are recognised by the law and custom of Aboriginal peoples as those people who are entitled by tradition to speak for the Land.
D. The Aboriginal Communities claim to represent all persons who are entitled by tradition to speak for the Land or who assert a traditional connection with the Land.
E. The State does not concede or admit that any common law native title or common law native title rights and interests exist in respect of the Land, whether of any of the Aboriginal Communities or any other persons or communities.
F. The parties agree that it is not necessary to determine the existence or otherwise of any common law native title or common law native title rights and interests in or to the Land for the purposes of this Agreement. The parties also agree that it is not necessary for them to reach any concluded position as to their respective entitlements at common law or pursuant to the Native Title Act, 1993 (Commonwealth), including any entitlements to compensation. The parties agree that their respective needs for certainty in respect of the various co-existing rights over Pastoral Leases, together with the delays and prohibitive costs involved in the resolution of that uncertainty by any other processes, make it essential in the interests of both parties that they reach this Agreement.
G. If any of the Aboriginal Communities holds any native title or native title rights and interests in respect of the Land, then it is intended that this agreement operate as an agreement pursuant to section [ ] of the Native Title Act, 1993 (Commonwealth), so as to authorise the various acts required or agreed to be done pursuant to the Agreement. If any Aboriginal Community does not hold any native title or native title rights and interests in the Land, then it is intended that this Agreement operate as an agreement by the parties to take the acts required or agreed to be done pursuant to the Agreement.
H. Section 47 of the Pastoral Act confers on Aborigines a statutory right to enter, travel across or stay on pastoral lands within South Australia for the purpose of carrying on the traditional pursuits of Aboriginal people. Members of the Aboriginal Communities intend to exercise the statutory rights over the Land or portions of the Land in the future.
I. The parties have discussed the provisions of this Agreement with the South Australian Farmers Federation, with the Pastoralists and with other interested persons and bodies.
J. The parties have decided to enter into this Agreement in order to clarify and regulate the rights of the State, the Aboriginal Community, the Pastoralists and others having or who may have interests in respect of the Land and to establish a regime by which those rights and interests will be exercised in the future.
THE PARTIES AGREE AS FOLLOWS.
1. ACCURACY OF RECITALS
The parties agree both that the matters referred to in the recitals of this Agreement are true and correct in every material particular and that the recitals shall form part of this Agreement.
2. DEFINITIONS & INTERPRETATION
2.1 Definitions
Note: The State considers that the following definitions require substantial rewording to give effect to the objects of this agreement. In particular, the definitions of "traditional rights" and "traditional rights holder" require clarification
Subject to any contrary intention indicated by subject or context, in the interpretation of this Agreement the following terms and expressions are stipulated as having the following meanings.
2.1.1 "Aboriginal Communities" means the members of the Aboriginal communities specified in item 2 of Schedule Two and the members of any Aboriginal communities who may, after the date of this Agreement, be entitled to be or become members of the Prescribed Body Corporate, all denoted collectively.
2.1.2 "Aboriginal Object" means the Aboriginal objects or remains specified in item 5 of Schedule Two or any other Aboriginal object or remains for the purpose of the Aboriginal Heritage Act, 1988.
2.1.3 "Aboriginal Site" means the Aboriginal Sites on the Land specified in item 6 of Schedule Two or any other such Aboriginal site for the purpose of the Aboriginal Heritage Act, 1988.
2.1.4 "Claim" means any amount, claim, demand, action, cause of action, proceedings, judgment, order, relief, remedy, right, entitlement, damages, liquidated damages, arbitration award, loss, compensation, reimbursement, penalty, cost, expense or liability payable, incurred, suffered, brought, made or recovered of any nature, however arising and whether presently ascertained, immediate, future or contingent, whether arising under statute, at law or in equity or whether of a contractual, proprietary or tortious nature (whether in negligence, for breach of statutory duty, other breach of duty, of a strict liability or otherwise) or any other civil cause of action or civil liability whatsoever.
2.1.5 "Commonwealth NTA" means the Native Title Act, 1993 (Commonwealth) as amended from time to time.
2.1.6 "Community Living Area" means an area on the Land where members of an Aboriginal Community have chosen to live and have erected houses, shelters and essential services for that purpose as envisaged by clause 28 of Schedule One.
2.1.7 "Contract Manager" means a person appointed as a contract manager pursuant to this Agreement by the State, the Prescribed Body Corporate or by a Pastoralist.
2.1.8 "Land" means the land comprised in the Pastoral Leases specified in item 4 of Schedule Two or any portion of that Land but expressly excluding, for the removal of doubt, any land comprised in a Public Access Route or a stock route established pursuant to section 45 of the Pastoral Act.
2.1.9 "Legislation" means any statute, regulation, by-law, proclamation, ordinance or any notice or order made or given pursuant to any of the foregoing.
2.1.10 "Management Committee" means the management committee established pursuant to this Agreement.
2.1.11 "Mining Act" means as follows:
(a) the Mining Act, 1971; and
(b) the Opal Mining Act, 1995.
2.1.12 "Minister" means the Minister for the Environment and Natural Resources, a body corporate pursuant to the Administrative Arrangements Act, 1994.
2.1.13 "New Mining Operations" means carrying on of mining production pursuant to a production tenement issued pursuant to the Mining Act or the Petroleum Act where such a tenement had not been in existence prior to 24 December, 1996 and was not a renewal, substitute or replacement for a tenement issued prior to that date.
2.1.14 "Pastoral Act" means the Pastoral Land Management and Conservation Act, 1989 as amended from time to time.
2.1.15 "Pastoralist" means the lessee pursuant to a Pastoral Lease.
2.1.16 "Pastoral Business" means the business of primary production as defined in the Income Tax Assessment Act, 1936 (Cth) and includes business activities related to tourism, subject always to the terms of the Pastoral Lease and the rights and obligations specified herein.
2.1.17 "Pastoral Lease" means the pastoral leases specified in item 3 of Schedule Two or a pastoral lease granted in respect of the Land or a portion of the Land pursuant to the Pastoral Act and any extension or renewal of any such pastoral lease, whether granted, extended or renewed as at the date of this Agreement or at any time during the Term.
2.1.18 "Petroleum Act" means as follows:
(a) the Petroleum Act, 1940; and
(b) the Petroleum (Submerged Lands) Act, 1982.
2.1.19 "Prescribed Body Corporate" means the body corporate to be created pursuant to clause 11.
2.1.20 "Public Access Route" means any public access route established pursuant to section 45 of the Pastoral Act.
2.1.21 "Public Infrastructure" means as follows:
(a) the infrastructure, equipment, structures, works and other facilities used in or in connection with the supply of water or electricity, gas, telephony, telegraphy or other forms of energy, public services or public utilities or the drainage or treatment of waste water or sewerage;
(b) roads and their supporting structures or works; or
(c) ports, wharfs, jetties, railways, tramways, conveyers, pipelines and busways,
whether constructed, maintained or operated by a State agency (for the purpose of section 49 of the Development Act, 1993) or not.
2.1.22 "Relevant Traditional Rights" means the Traditional Rights, if any, of the Aboriginal Community to cross over, to hunt and to camp in respect of the Land.
2.1.23 "Representative" means [ ] Inc.
2.1.24 "State" means the Crown in right of the State of South Australia and any of its Ministers, agencies, instrumentalities, employees, agents or statutory corporations formed by or pursuant to legislation enacted by the Parliament of South Australia.
2.1.25 "State NTA" means the Native Title (South Australia) Act, 1994 as amended from time to time.
2.1.26 "Term" means, subject to an earlier termination pursuant to this Agreement or otherwise at or by the operation of law, the expiration of seventy five (75) years commencing on the date of this Agreement.
2.1.27 "Traditional Rights" has the same meaning as stipulated for the expression "native title" in section 4 of the State NTA.
2.1.28 "Traditional Rights Holder" in respect of any portion of the Land means a member of an Aboriginal Community who:
(a) has physically exercised any of the Relevant Traditional Rights on the relevant portion of the Land during the period of thirty five (35) years immediately prior to the making of this Agreement; and
(b) is recognised in accordance with Aboriginal custom and tradition as having the right to speak for the relevant portion of the Land,
and includes a person who, in accordance with Aboriginal custom and tradition, is a member of an Aboriginal Community where other members of that Aboriginal Community are Traditional Rights Holders.
2.2 Interpretation
Subject to any contrary intention indicated by subject or context, the following rules of construction shall be used in the interpretation of this Agreement.
2.2.1 Words denoting the singular number or plural number include the plural number and singular number respectively.
2.2.2 Words denoting any gender shall include all genders.
2.2.3 Headings are for convenience only and shall not affect interpretation.
2.2.4 Words denoting individuals shall include corporations and vice versa.
2.2.5 A reference to a recital, party, clause, schedule, appendix or annexure is a reference to a recital, party, clause, schedule, appendix or annexure of this Agreement.
2.2.6 A reference to any item of Legislation shall be deemed to include any amendments made to that item and all statutory provisions substituted for that item after the date of this Agreement.
2.2.7 The use of "or" shall be that of the inclusive "or", ie., meaning one, some or all of a number of possibilities or alternatives.
2.2.8 All references to "dollars" or to "$" are to Australian dollars.
2.2.9 A reference to a corporation, organisation or other body (whether or not incorporated) is:
(a) if that corporation, organisation or other body is replaced by another corporation, organisation or other body, deemed to refer to that other corporation, organisation or other body; and
(b) if that corporation, organisation or other body ceases to exist, deemed to refer to the corporation, organisation or other body which most nearly or substantially fulfils the same purposes or objects as the first mentioned corporation, organisation or other body.
3. AIMS OF THIS AGREEMENT
The parties acknowledge and agree that the aims of this Agreement are as follows:
3.1 not to extinguish any Traditional Rights in or to the Land as a consequence of the granting of a Pastoral Lease or any act, omission, matter or thing performed or not performed pursuant to or in accordance with a Pastoral Lease (as the case may be) upon the Land;
3.2 if any Traditional Rights exist in or to the Land, then to enter into an agreement, for the purpose of section 21 of the Commonwealth NTA, to authorise, to the extent necessary, the exercise or enjoyment of co-existing estates, interests, rights or entitlements in or to the Land together with any Traditional Rights pursuant to this Agreement;
3.3 to provide an agreed basis for the introduction into the South Australian Parliament of legislation to authorise, ratify and give effect to the terms of this Agreement;
3.4 to establish a consensual regime whereby the State, the Pastoralists, the Aboriginal Communities and other persons can all use and enjoy the Land harmoniously and consistently in exercise of their respective rights, powers or interests in or to the Land; and
3.5 to foster and develop a mutually beneficial relationship between all such persons having any such estates, interests or rights in relation to the use and enjoyment of the Land.
4. ACKNOWLEDGMENTS
4.1 The Representative acknowledges and declares to the State that the Aboriginal Communities are the sole and exclusive Traditional Rights Holders and are the holders of any Relevant Traditional Rights or any other Traditional Rights in respect of the Land for the purpose of and in accordance with the Commonwealth NTA and the State NTA and, further, or in the alternative, that together they have the sole and exclusive continuing traditional Aboriginal connection with the Land or are comprised of the people who, according to Aboriginal law and custom, traditionally are entitled to speak for the Land.
4.2 The Representative acknowledges and declares to the State that the Representative is either the prescribed body corporate registered on the Native Title Register maintained pursuant to the Commonwealth NTA as the Traditional Holder of any Relevant Traditional Rights on trust for the Aboriginal Community or, if not, then that the Representative is the duly authorised agent, delegate or representative of each of the Aboriginal Communities.
4.3 Each Aboriginal Community and the Representative, jointly and severally, warrant and represent to the State that the Representative is expressly authorised in writing to enter into this Agreement for and on behalf of each of the Aboriginal Communities as its trustee, agent, delegate or representative (as the case may be) and consequently to legally bind the Aboriginal Community either on the basis that the Representative is the Traditional Rights Holder or on the same basis as if each person, who is a Traditional Rights Holder or who otherwise held any Traditional Rights in respect of the Land, were a party to this Agreement.
4.4 The Representative warrants and represents to the State that the Representative has consulted with and distributed or made available to members of each Aboriginal Community this Agreement as well as previous drafts of this Agreement for their consideration and comment.
5. NO ADMISSION OF EXISTENCE OF TRADITIONAL RIGHTS
The State acknowledges and declares that it does not admit or concede the existence, in or to the Land, of any Relevant Traditional Rights or any other Traditional Rights and that it does not concede that there are any Traditional Rights Holders in respect of the Land.
6. CONSIDERATION
If any Traditional Rights exist in or to the Land, then the entering into this Agreement by the State and the State's obligations pursuant to this Agreement constitute the State's consideration for the purpose of the making of this Agreement pursuant to section [ ] of the Commonwealth NTA.
7. SECTION [ ] AUTHORISATION
If any Traditional Rights exist in or to the Land, then the following provisions shall apply:
7.1 The parties acknowledge that the enactment of any State legislation to give effect to the terms of this Agreement may be a future act in relation to the Land for the purpose of the Commonwealth NTA.
7.2 The parties acknowledge that the granting of a Pastoral Lease or any act, omission, matter or thing performed or not performed pursuant to or in accordance with a Pastoral Lease or otherwise pursuant to or envisaged by this Agreement (as the case may be) may each be future acts in relation to the Land for the purpose of the Commonwealth NTA.
7.3 Notwithstanding subclause 4, the parties acknowledge that the enactment of such legislation, the granting of a Pastoral Lease, the making of this Agreement or any act, omission, matter or thing (save only for any act involving a compulsory acquisition) performed or not performed pursuant to or in accordance with a Pastoral Lease or this Agreement (as the case may be) on or after the date of this Agreement shall not extinguish and shall not be construed as extinguishing, in any way, any Traditional Rights, whether under statute or at common law.
7.4 The parties acknowledge that the granting of a Pastoral Lease or any act, omission, matter or thing performed or not performed pursuant to or in accordance with a Pastoral Lease or this Agreement (as the case may be) may be wholly or partially inconsistent with the continued existence, enjoyment or exercise of any Relevant Traditional Rights and may thereby affect, for the purposes of the Commonwealth NTA or any Traditional Rights.
7.5 This Agreement constitutes an agreement between the State and the Representative, for the purposes of section [ ] of the Commonwealth NTA, the effect of which agreement is to authorise the enactment of relevant State legislation, the granting of a Pastoral Lease and any act, omission, matter or thing performed or not performed pursuant to a Pastoral Lease or this Agreement (as the case may be) as each being a future act affecting any Relevant Traditional Rights.
7.6 As a consequence of this Agreement constituting an agreement for the purpose of section [ ] of the Commonwealth NTA, the enactment of such legislation, the granting of a Pastoral Lease or any act, omission, matter or thing performed or not performed pursuant to a Pastoral Lease or this Agreement (as the case may be) shall each be and be construed to be a permissible future act for the purposes of the Commonwealth NTA.
8. STATE TO ENACT LEGISLATION
8.1 The Minister (or such other Minister as may be authorised by the Government of the State for this purpose) shall cause the Government of the State as soon as practicable after the execution of this Agreement to introduce and sponsor in the Parliament of the State a Bill to approve and ratify this Agreement and, in particular, to provide that the rights, obligations and duties specified in Schedule One hereof shall apply and be enforceable notwithstanding any other agreements or statutes to the contrary.
8.2 This Agreement shall terminate if the Parliament of the State fails to enact such a Bill within eighteen (18) months of the date of this Agreement.
8.3 This Agreement shall terminate if the Parliament of the State amends any Act enacted for the purpose of this clause without having first obtained the written consent of the Prescribed Body Corporate to any such amendment.
8.4 In addition, the State may, by Legislation, and without any requirement for further negotiation with the Prescribed Body Corporate or the Aboriginal Communities or their respective representatives and without creating any liability for compensation, damages or any other liability to the Aboriginal Communities or their members, vary the term of a Pastoral Lease so that any such Pastoral Lease has a perpetual term provided that any such variation in the term of a Pastoral Lease shall not otherwise derogate from or affect the rights and obligations between the State, the Representative, the Prescribed Body Corporate, the Aboriginal Communities and the relevant Pastoralist pursuant to or under this Agreement.
8.5 The Representative and each Aboriginal Community shall support and not oppose, in any way, whether publicly or otherwise, any Bill or any amending Bill introduced and sponsored by the Government of the State pursuant to subclauses 1 or 3 respectively.
9. RELEASE
9.1 The Representative, both for itself and for and on behalf of each Aboriginal Community and their respective members, hereby releases, to the extent permitted by law, the State and any Pastoralist or other person having an interest in the Land from any Claim, whether for damages, compensation or otherwise under statute or at common law, that the Aboriginal Community or any member of the Aboriginal Community may have or be entitled to bring, exercise or enforce in relation or incidental to the granting of the Pastoral Leases or any act, omission, matter or thing performed or not performed pursuant to and in accordance with the Pastoral Leases and this Agreement.
9.2 The parties acknowledge that the granting of Pastoral Leases or any act, omission, matter or thing performed or not performed pursuant to and in accordance with a Pastoral Lease and this Agreement does not create any obligation on or liability of the State or a Pastoralist to pay to the Representative, any Aboriginal Community, any member of an Aboriginal Community or any other person any compensation, damages or other amount in respect of either the granting of the Pastoral Leases or the performing or not performing of any act, omission, matter or thing pursuant to the Pastoral Leases (as the case may be).
9.3 The parties hereby agree, to the extent permitted by law, to exclude and negate the operation of any applicable legislation or common law principle creating or imposing any such obligation or liability.
10. SUSPENSION OF COMMON LAW TRADITIONAL RIGHTS
The Representative, both for itself and for and on behalf of each Aboriginal Community and their respective members agree that the Traditional Rights, if any, or any other native title rights of any Aboriginal Community shall be suspended for the duration of the Term such that they may not be exercised or enjoyed and, that for the duration of the Term, they shall have and enjoy the rights granted and agreed in and pursuant to this Agreement.
11. CREATION OF THE PRESCRIBED BODY CORPORATE
11.1 The Representative shall establish or cause to be established a Prescribed Body Corporate in accordance with this clause within [ ] months of the date of this Agreement or otherwise as soon as reasonably practicable thereafter.
11.2 If any Traditional Rights exist in or to the Land, then the Representative shall ensure that the Prescribed Body Corporate shall be a prescribed body corporate in accordance with the Native Title (Prescribed Bodies Corporate) Regulations, 1994 promulgated under the Commonwealth NTA and that it shall comply with those regulations in all respects.
11.3 In any event, but subject to the following stipulations being consistent with the Native Title (Prescribed Bodies Corporate) Regulations, 1994, the constitution, rules or other relevant constitutive document of the Prescribed Body Corporate shall contain the following provisions:
11.3.1 that the Prescribed Body Corporate's members shall be exclusively restricted to members of the Aboriginal Communities;
11.3.2 that the Prescribed Body Corporate's constitution, rules or others constitutive document prescribes that any person who is a member of an Aboriginal Community is entitled to be or become a member of the Prescribed Body Corporate;
11.3.3 that the Prescribed Body Corporate's constitution, rules or other constitutive documents prescribes that any person who is a member of an Aboriginal community (not being an Aboriginal Community for the purpose of this Agreement), either which makes a claim for the determination of the existence of any Traditional Rights in or to the Land, after the date of this Agreement or which is found to have any such Traditional Rights pursuant to any such claim, is entitled to be or become a member of the Prescribed Body Corporate;
11.3.4 that a person may seek an appropriate order of a court of competent jurisdiction to declare that person to be entitled to be a member of the Prescribed Body Corporate;
11.3.5 that upon such an order being made, that person shall be a member of the Prescribed Body Corporate;
11.3.6 that the Prescribed Body Corporate may, in its own right and on behalf of its members, seek an appropriate order of a court of competent jurisdiction to declare that a person is not entitled to be a member of the Prescribed Body Corporate;
11.3.7 subject always to an amendment which is consistent with paragraph 9, that the constitution, rules or other relevant constitutive document shall prescribe that it may only be amended pursuant to either a process satisfying paragraph 5(2) (a) of the Native Title (Prescribed Bodies Corporate) Regulations, 1994 or, if no such customary or traditional decision making process exists, then by a two thirds majority of a duly convened meeting of the Prescribed Body Corporate's members at which at least ninety per cent (90%) of the persons who are entitled to be members are present;
11.3.8 that the Prescribed Body Corporate shall give at least twenty eight (28) days' prior written notice of the proposal to call a meeting of its members at which an amendment to the constitution, rules or other constitutive document is to be considered together with the terms of the proposed amendment;
11.3.9 if there is more than one Aboriginal Community which has Relevant Traditional Rights in relation to the Land or any portion of the Land, then that the constitution, rules or other relevant constitutive document of the Prescribed Body Corporate appropriately provides that only those particular Aboriginal Communities have any voting or other rights pursuant to the constitution, rules or other document in relation to the Relevant Traditional Rights in respect of the Land or the relevant portion (as the case may be);
11.3.10 that the constitution, rules or other relevant constitutive document shall only be amended in accordance with the rule or article described in paragraph 7; and
11.3.11 the constitution, rules or other constitutive document of the Prescribed Body Corporate shall entrench the provisions required to be included pursuant to this clause (including the entrenching provision) such that those provisions cannot be amended by the procedure described in paragraph 7.
12. TERM
This Agreement shall continue to exist and operate between the parties for the Term.
13. CONSEQUENCES OF BREACH
13.1 Subject to clause 8, the State and the Representative acknowledge and agree that this Agreement may not, in any circumstances, be terminated by either of them by reason of a breach of this Agreement of any nature, whether of a fundamental term, a fundamental breach or otherwise, by the other of them.
13.2 The State and the Representative each hereby agree to waive and to release and discharge the other of them from any right, power or remedy, whether pursuant to this Agreement or otherwise at law, to terminate this Agreement for breach.
13.3 The State or the Representative (as the case may be) may make or pursue claims for damages sustained which were caused by or were a consequence of a breach of this Agreement by the other of them.
13.4 The parties acknowledge that an award of damages for a breach of this Agreement may be an inadequate remedy and that, subject to observing the dispute resolution procedure specified in this Agreement, a party may enforce compliance with this Agreement by seeking appropriate injunctions or any other available or appropriate form of legal or equitable remedy or relief in any appropriate court or jurisdiction.
14. SUCCESSORS & ASSIGNEES BOUND
This Agreement shall bind any of the Representative's and each Aboriginal Community's successors, successors to the estate or interest of an Aboriginal Community in or to the Land and their respective permitted assignees.
15. ABILITY TO ASSIGN OR ENCUMBER THIS AGREEMENT
The rights, powers, entitlements, remedies or obligations of the Aboriginal Community pursuant to this Agreement are personal to them. Consequently, the Aboriginal Community shall not assign, convey, transfer, charge, otherwise encumber or otherwise deal with or agree to assign, convey, transfer, charge, otherwise encumber or otherwise deal with the benefit of this Agreement without the State's prior written consent, which may be given or withheld in the State's absolute and unfettered discretion, and, if given, then may be given on such conditions as the State considers appropriate.
16. PUBLIC ANNOUNCEMENTS
A party shall not make, issue, commit or suffer or permit to be made any public statement, public announcement or media release concerning any matter or thing relating or incidental to either the granting of this Agreement or the provisions of this Agreement either unless any such statement, announcement or media release is required by law (including the obligations of the State and its Ministers to the Parliament and to the Executive Council of the State) and the content of any such statement, announcement or media release has been approved by the State or unless the making and content of any such statement, announcement or media release is otherwise approved by the State.
17. EMPLOYEES & AGENTS
Any act, matter or thing which either is required to be performed or done by a party or is permitted to be performed or done by a party may be performed or done by a party's duly authorised employees, agents, delegates or contractors.
18. FURTHER ASSURANCES
The parties shall do all acts, matters and things and sign all documents and shall cause to be done all acts necessary to give full effect to the terms of this Agreement.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties in respect of the subject matter of this Agreement and the parties agree that this Agreement supersedes and extinguishes any prior agreement or understanding (if any) between the parties in respect of this subject matter. Further, no other agreement, whether collateral or otherwise, shall be taken to have been formed between the parties by reason of any promise, representation, inducement or undertaking (if any) given or made by one party to another prior to the date of this Agreement.
20. WAIVER
20.1 No waiver by a party of a breach of a provision of this Agreement shall operate as a waiver of another breach of the same or of any other provision of this Agreement.
20.2 No forbearance, delay, indulgence or partial exercise by a party in enforcing the provisions of this Agreement shall be a waiver of or prejudice or restrict the rights of that party in any way.
21. AMENDMENT
21.1 This Agreement shall not be amended or varied other than by a written instrument expressed both to be a deed and to be supplemental to or in substitution for the whole or a part of this Agreement. Further, any such instrument shall be signed by each party or by a person duly authorised to execute such an instrument on behalf of a party.
21.2 The parties agree and accept that, once the Prescribed Body Corporate has been established, an instrument executed by the Prescribed Body Corporate but otherwise conforming to the requirements in subclause 1 hereof, shall be as effective to amend or vary this Agreement as if it were executed by the Representative Body.
22. READING DOWN & SEVERANCE
22.1 If a sentence, subparagraph, paragraph, subclause, clause or other provision of this Agreement is reasonably capable of an interpretation which would render that provision not to be unenforceable, illegal, invalid or void and an alternative interpretation which would have one or more of those consequences, then that provision shall be interpreted or construed, so far as is possible, to be limited and read down such that its meaning is that which does not render it unenforceable, illegal, invalid or void.
22.2 Subject to subclause 1, if a provision of this Agreement is for any reason, illegal, void, invalid or unenforceable, then that provision shall be severed from this Agreement without affecting the legality, validity or enforceability of the remainder of this Agreement.
23. RELATIONSHIP BETWEEN THE PARTIES
23.1 The parties acknowledge and agree that their relationship pursuant to this Agreement shall be exclusively that of, independent contractors with the several rights, liabilities, duties and obligations set out in this Agreement or, subject to this Agreement, at law. Nothing contained in this Agreement shall be deemed or construed to constitute a party to be a partner, joint venturer, principal, agent, trustee (whether express, implied or constructive), beneficiary, or fiduciary of any other party.
23.2 No party has the authority to act for or to incur any liability or obligation pursuant to this Agreement as agent for and on behalf of any other party except as expressly provided in or contemplated by this Agreement.
23.3 Each party shall indemnify and keep indemnified the other from and against any obligations or liabilities arising as a consequence of one party incurring any obligations or liabilities for and on behalf of the other party in the manner proscribed by subclause 2 and otherwise than pursuant to this Agreement or with the express written consent of the other party.
24. COSTS
Each party shall bear their own costs incurred in and incidental to the negotiation, preparation and execution of this Agreement.
25. STAMP DUTY
The State shall be responsible for and pay any stamp duty assessed or charged in respect of this Agreement. The parties shall agree on the liability to pay stamp duty assessed in respect of any other instrument to be executed pursuant to this Agreement or to give effect to its provisions.
26. PROPER LAW
26.1 The proper law of this Agreement shall be the law of South Australia and accordingly this Agreement shall be governed by and construed in accordance with the laws of this State.
26.2 The parties irrevocably covenant for the benefit of each other that the courts of the State of South Australia shall have jurisdiction to hear and determine any suit, action or proceeding and to settle any disputes which may arise out of or in connection with this Agreement and for such purposes the parties irrevocably submit to the non-exclusive jurisdiction of such courts. Further, the parties mutually covenant that they shall each not institute or attempt to institute any litigious proceedings in respect of any matter or thing arising out of or in connection with this Agreement other than either in a court of the State of South Australia or in the Adelaide Registry of any Federal court. Each party acknowledges that the courts of or sitting in South Australia constitute the most convenient forum to hear and determine any such suits, actions, proceedings or disputes. Furthermore, each party waives any right it has to object to an action being brought in these courts, to claim that the action has been brought in an inconvenient forum or to claim that these courts do not have jurisdiction. The parties further agree that any suits, actions, disputes or other litigious proceedings brought in a Federal court shall be instituted in the Adelaide Registry of any such Federal court and should be heard by any such Federal court while sitting in Adelaide.
UNCONDITIONALLY
EXECUTED AS AN AGREEMENT on the day of 1997.
THE COMMON SEAL of MINISTER FOR THE )
ENVIRONMENT AND NATURAL RESOURCES )
was hereunto affixed in the presence of: )
........................................................................................
Witness
THE COMMON SEAL of [THE )
REPRESENTATIVE] INC. was hereunto affixed )
in accordance with its Rules of Association )
For and on behalf of the members of the )
[ABORIGINAL COMMUNITIES] )
In the presence of: )
........................................................................................
Chairman
........................................................................................
Director
SCHEDULE ONE PART A: PASTORALISTS
1. REGULATION OF RIGHTS
The provisions of the Pastoral Act, any Pastoral Lease and this Schedule shall govern and regulate the exercise, during the term of any relevant Pastoral Lease, of any Traditional Rights of the Aboriginal Community and the relevant Pastoralist's rights, powers, entitlements or remedies , whether pursuant to the Pastoral Lease or otherwise at law.
2. EXERCISE OF RIGHTS BY THE ABORIGINAL COMMUNITY AND THE PASTORALIST
26.1 A Pastoralist shall occupy and use the Land and permit members of the Prescribed Body Corporate to exercise and enjoy any Relevant Traditional Rights in accordance and consistently with the Pastoral Act, the relevant Pastoral Lease and this Agreement and Schedule.
2.2 A Pastoralist may occupy and use the Land in accordance and consistently with the Pastoral Lease and this Schedule.
26.3 Member of the Prescribed Body Corporate may exercise and enjoy any Relevant Traditional Rights in accordance and consistently with the Pastoral Act, the relevant Pastoral Lease and this Agreement and Schedule.
3. CONDUCT OF PASTORAL BUSINESS
Subject to and in accordance with this Schedule, a Pastoralist may conduct a pastoral business on the Land pursuant to and in accordance with the relevant Pastoral Lease provided that any act, matter, thing or omission by the Pastoralist in the conduct of the pastoral business is not a breach of the rights conferred upon the Prescribed Body Corporate or its members by this Schedule.
4. PASTORALIST'S EXCLUSIVE OCCUPATION
4.1 A Pastoralist may exclude all persons, including members of the Prescribed Body Corporate, from any part of the Land within a one kilometre radius of any house, shed, outbuilding or other building erected on the Land. Members of an Aboriginal Community may not exercise any right held by them or granted to them, including any Relevant Traditional Right, within any such part of the Land.
4.2 Subject to Pastoral Act, the relevant Pastoral Lease and this Agreement and Schedule, and in particular, the rights held by the Prescribed Body Corporate and its members, a Pastoralist has a right of exclusive occupation of that part of the Land comprised within the relevant pastoral lease.
4.3 Nothing within this clause or otherwise within this Agreement and Schedule shall be construed as limiting any statutory right of entry onto land for official purposes, or as limiting an otherwise lawful entry onto the Land by a police officer acting in the course of carrying out his official duties, or of any other officer appointed pursuant to statute acting in the course of carrying out his official duties or of limiting an otherwise lawful entry upon the land in the case of emergency.
5. SECTION 47 OF THE PASTORAL ACT
Subject to this Schedule, the members of the Prescribed Body Corporate may exercise their rights contained in section 47 of the Pastoral Act for the purpose of following their traditional pursuits. A Pastoralist shall not interfere with, obstruct or otherwise impede the exercise or enjoyment of those rights in accordance with this Schedule.
6. EXERCISE OF ANY RELEVANT TRADITIONAL RIGHTS
Subject to and in accordance with this Schedule, members of the Prescribed Body Corporate may exercise any Relevant Traditional Rights in accordance with the provisions of this Schedule. Consequently, members of the Prescribed Body Corporate may perform any act, matter or thing reasonably necessary for or incidental to the exercise of any Relevant Traditional Rights on the basis that each of the following conditions is, at all times, satisfied:
6.1 any such act, matter, thing or omission is not a breach of this Schedule or the Pastoral Act; and
6.2 any such act, matter, thing or omission does not unreasonably interfere with the conduct of a Pastoralist's business or cause any damage to a Pastoralist's business or any of its livestock or property.
7. COMPLIANCE WITH AGREEMENT BY THIRD PARTIES
A Pastoralist and the Prescribed Body Corporate shall each ensure that their respective employees, agents, contractors, members, officers, invitees, visitors, persons living on the Land or any other persons on the Land under the control of a Pastoralist or the Prescribed Body Corporate (as the case may be) observe and comply with the provisions of this Agreement.
8. TRADITIONAL RIGHTS APPLICATIONS
8.1 A Pastoralist shall not, for the duration of the Term of the Agreement, make or pursue a "non-claimant" application for a determination as to the existence or otherwise of any Traditional Rights in the Land under any State or Commonwealth legislation.
8.2 The Representative, the Prescribed Body Corporate, any Aboriginal Community, any member of an Aboriginal Community or any other traditional owners of the Land shall not, for the duration of the Term of the Agreement, make or pursue a native title claim or application in respect of the Land, whether at common law or under State or Commonwealth legislation.
9. CULTURAL CEREMONIES & PRACTICES
A Pastoralist shall respect the need for privacy of an Aboriginal Community when its members are conducting cultural ceremonies or practices on the Land and shall not, to the extent reasonably possible given the use of the Land by the Pastoralist for pastoral purposes, interfere with the conduct of any such ceremonies or practices.
10. ABORIGINAL SITES & OBJECTS
10.1 A Pastoralist shall not damage, disturb or interfere with any Aboriginal Site, Aboriginal Object or any other Aboriginal site, object or remains which has been identified to the Pastoralist as such or which the Pastoralist should have reasonably known as being such. Further, the Pastoralist shall use its best endeavours to preserve and protect any such Aboriginal Site or Aboriginal Object.
10.2 Nothing in subclause 1 shall limit or be construed as limiting the obligations of any person pursuant to the Aboriginal Heritage Act, 1988.
10.3 The Prescribed Body Corporate may, after consultation with the relevant Pastoralist, repair any Aboriginal Site or Aboriginal Object damaged, disturbed or interfered with, whether as at the date of this Agreement or subsequently.
10.4 The Prescribed Body Corporate may, after consultation with the State and the relevant Pastoralist and at its cost, fence any Aboriginal Site or Aboriginal Object for its protection from damage or interference by livestock.
11. USE OF THE LAND
Members of the Prescribed Body Corporate shall have access to and may use the Land, always in accordance with this Schedule, for any of the following purposes:
11.1 hunting and gathering for private or domestic purposes but not for any commercial or business purpose;
11.2 cultural ceremonies and practices;
11.3 meetings of the Aboriginal Community;
11.4 traversing the Land;
11.5 camping;
11.6 access to water;
11.7 access to a Community Living Area established in accordance with clause 28 of this Schedule;
11.8 collecting medicines;
11.9 collecting or extracting materials for artistic, ceremonial or other cultural purposes;
11.10 fishing for private or domestic purposes but not for any commercial or business purpose;
11.11 burial grounds;
11.12 teaching; or
11.13 other purposes consistent with and incidental to the foregoing purposes.
12. ACCESS TO THE LAND
12.1 Access for persons not members of the Aboriginal Community
Members of the Prescribed Body Corporate may only bring on to the Land persons who are not members of the Prescribed Body Corporate with the prior consent of the relevant Pastoralist, which consent shall not be unreasonably withheld.
12.2 No limitation on operation of sections 46 & 48 of the Pastoral Act
Subclause 1 does not and shall not be construed as limiting, in any way, a person's right to travel or camp temporarily on a Public Access Route pursuant to section 48 of the Pastoral Act or to use a stock route pursuant to section 46 of the Pastoral Act.
12.3 Means of access
Members of the Prescribed Body Corporate may have access to the Land on foot, in motor vehicles or on horseback, always along or using Public Access Routes or other existing roads, tracks or access routes, for any purpose permitted pursuant to this Agreement.
12.4 Notification
12.4.1 The Prescribed Body Corporate or its members of the Aboriginal Community shall give the Pastoralist at least one (1) day's prior notice before entering on the Land for the following purposes:
(a) any purpose permitted pursuant to this Schedule which is not a purpose for the following of the traditional pursuits of the Aboriginal community where it is intended to travel across the Land in a group of more than two (2) vehicles; or
(b) for any purpose where it is intended that non-members of the Aboriginal Community will travel across or be on land not comprised in a Public Access Route or stock route.
12.4.2 Notification pursuant to paragraph 1 shall include the following details:
(a) the number of people in total who will travel across or be on the Land;
(b) the purpose of the particular journey or use of the Land;
(c) when the particular journey is to occur;
(d) the journey's route and the areas of the Land which it is intended to travel across, stay on or otherwise use;
(e) the intended method of transport; and
(f) the expected duration of the journey across or company on the Land.
12.5 Public Access Routes & Tracks
12.5.1 Members of the Prescribed Body Corporate shall, where possible, use Public Access Routes or other existing roads, tracks or access routes on the Land but may deviate or create new tracks or access routes with the consent of a Pastoralist, which consent shall not be unreasonably withheld if reasonably necessary for a purpose permitted pursuant to this Agreement. A Pastoralist may use any such road, track or access route on the same basis as members of the Prescribed Body Corporate may use existing roads, tracks or access routes or those constructed by the Pastoralist.
12.5.2 Road, tracks or access routes (other than any created by the Prescribed Body Corporate) shall not be used by members of the Prescribed Body Corporate if affected by heavy rains and such use would result in damage to the road, track or access route. A Pastoralist may notify the Prescribed Body Corporate if there is any restriction on access or passage for this reason.
12.5.3 Maintenance of roads, tracks or access routes (other than Public Access Routes) is the responsibility of the Pastoralist, other than those tracks created by the Prescribed Body Corporate or any of its members, maintenance of which shall be the responsibility of the Prescribed Body Corporate.
12.5.4 Neither the Prescribed Body Corporate nor a Pastoralist shall be liable for any failure to maintain any road, track or access route created by the other.
12.5.5 The party who or any of whose employees, agents, contractors or invitees has damaged any road, track or access route shall repair the relevant road, track or access route within a reasonable period.
12.5.6 A Pastoralist or the Prescribed Body Corporate shall reimburse the Prescribed Body Corporate or the Pastoralist (as the case may be) for any costs or expenses reasonably incurred by the second party to independent third party contractors engaged to repair or remedy any damage to a road, track or access route constructed by the second party which was caused by the former party or its employees, agents, contractors, invitees or members (as the case may be).
13. USE OF WATER
13.1 Members of the Prescribed Body Corporate may take water from any natural water source on the Land.
13.2 Further, members of the Prescribed Body Corporate may take water from any dam, bore or other constructed stock watering point on the Land for private or domestic purposes.
13.3 The Prescribed Body Corporate may sink bores or construct watering points on the Land for their own use, provided they consult with and obtain the written consent of the Pastoralist. If the parties are unable to agree, then the dispute may be referred to the dispute resolution procedure. If the parties are unable to reach agreement as a result of the mediation process, then the Pastoral Board shall make a decision binding on both parties.
14. DOGS & OTHER ANIMALS
14.1 Members of the Prescribed Body Corporate may take dogs on the Land provided that they do not harass or injure livestock or otherwise interfere with the conduct of a Pastoralist's pastoral business.
14.2 Any such dog shall be appropriately restrained or otherwise controlled at all times.
14.3 Members of the Prescribed Body Corporate shall not take dogs into paddocks or portions of the Land in respect of which the Pastoralist has, by notice, specified that dogs are prohibited.
14.4 The members of the Prescribed Body Corporate shall not bring onto or keep on the Land any other animal or bird without the prior written consent of the relevant Pastoralist.
15. HUNTING & FIREARMS
15.1 Members of the Prescribed Body Corporate may hunt on the Land exclusively for private or domestic purposes but in a manner which does not harm or injure any of the Pastoralist's livestock and which does not involve any risk to any other persons on the Land.
15.2 Any firearms brought on to the Land by members of the Prescribed Body Corporate shall be registered and otherwise kept and maintained in accordance with the law. Any such firearm shall be used safely and not in a manner which endangers or causes any harm or damage to any person or livestock or which is reckless thereto.
15.3 If a Pastoralist reasonably considers there is a material probability that the use of a firearm in a specified portion of the Land may endanger life or property, then the Pastoralist may designate, by written notice served on the Prescribed Body Corporate, specified areas of the land to be one of the following:
15.3.1 an area in which the use of a firearm is absolutely prohibited; or
15.3.2 an area in respect of which a member of the Prescribed Body Corporate must notify and obtain the consent of the relevant Pastoralist prior to using a firearm in that area.
15.4 The Prescribed Body Corporate may dispute any such designation of an area by the relevant Pastoralist. If the Pastoralist and the Prescribed Body Corporate cannot resolve any such dispute by agreement, then the dispute resolution procedure will apply.
16. FISHING
Members of the Prescribed Body Corporate may fish exclusively for private or domestic purposes from any river, stream or natural watercourse on the Land.
17. FIRES
17.1 Subject to the Country Fires Act, 1989 and any other applicable laws, members of the Prescribed Body Corporate may light fires for private or domestic and cultural purposes provided that all reasonable and prudent precautions are taken in relation to fire safety.
17.2 Members of the Prescribed Body Corporate shall comply with all reasonable requirements as may be notified from time to time to them by a Pastoralist in relation to fire or bushfire safety or precautions on the Land. The Prescribed Body Corporate shall assist a Pastoralist in undertaking such reasonable precautions to minimise the risk of or damage caused by bushfires on the Land and to combat any such bushfire should one occur.
18. CUTTING OF TIMBER
18.1 Members of the Prescribed Body Corporate may collect any firewood, brush or other dead timber exclusively for private or domestic purposes.
18.2 Subject to the Native Vegetation Act, 1991, members of the Prescribed Body Corporate shall not cut down, top, lop or destroy any living tree except with the prior consent of the relevant Pastoralist, which consent shall not be unreasonably withheld if the purpose in respect of which the request is made is for the conduct of a genuine cultural or ceremonial practice of an Aboriginal Community.
19. TAKING OF PLANTS
19.1 Subject to the Native Vegetation Act, 1991, members of the Prescribed Body Corporate may take and use such plants, animals or other materials or substances from the Land for the following purposes:
19.1.1 the conduct of traditional ceremonies and practices;
19.1.2 medicinal purposes;
19.1.3 food and nourishment;
19.1.4 artistic or cultural purposes; or
19.1.5 any purpose incidental to a purpose specified in this clause.
19.2 The Prescribed Body Corporate shall not take or use any plants, animals or any other materials or substances from the Land for any commercial or business purpose without the prior consent of the State and the relevant Pastoralist.
20. BURIALS
Subject to any applicable law, a member of the Prescribed Body Corporate may be buried on the Land after consultation with the relevant Pastoralist and provided that the proposed burial site does not unreasonably interfere with the conduct of the relevant Pastoralist's pastoral business.
21. PROTECTION OF NATURAL FEATURES
The Prescribed Body Corporate may, after consultation with and the agreement of the relevant Pastoralist, protect and take such reasonable measures as may be necessary to protect native fruits, plants or seeds of significance in or used for the traditional pursuits of the relevant Aboriginal Community.
22. COMMERCIAL ENTERPRISES
22.1 The Prescribed Body Corporate or any of its members may, after consultation with and the consent of the relevant Pastoralist, conduct small scale commercial enterprises or activities in relation to or associated with the historical, cultural or contemporary use of the Land by the relevant Aboriginal Community, the interpretation of sites of historical or cultural significance to the relevant Aboriginal Community, the production and sale of Aboriginal art, artefacts and tourist material, the conduct of tours of the Land for the purpose of visiting sites or objects relating to Aboriginal culture or history.
22.2 The relevant Pastoralist's consent in relation to any such commercial enterprise or activity shall not be unreasonably withheld if the proposed enterprise or activity does not unreasonably interfere with the conduct of the Pastoralist's pastoral business.
23. GATES
23.1 A Pastoralist may fence all or any part of the Land. If fences have been or are to be erected, then sufficient gates, grids or stiles shall be provided to permit reasonable access to all parts of the Land by members of the Prescribed Body Corporate.
23.2 Gates shall be unlocked unless a Pastoralist considers it reasonably necessary to lock particular gates for the following reasons:
23.2.1 to prevent different herds of cattle being mixed;
23.2.2 to isolate stud bulls or rams;
23.2.3 to prevent the stealing of stock; or
23.2.4 to prevent cattle straying on to public roads or Public Access Routes; or
23.2.5 such other reasons as are essential for the carrying on of a pastoral business.
23.3 If a Pastoralist proposes to lock a particular gate, then the Pastoralist shall give written notice to the Prescribed Body Corporate, setting out the reasons for locking the gate and whether the Pastoralist intends to exclude all persons or whether the members of the Prescribed Body Corporate may continue to have access to the relevant portion of the Land by some specified means.
23.4 The Prescribed Body Corporate shall have 30 days in which to advise the relevant Pastoralist whether it objects to the locking of the gate or to the proposed means of securing continued access by members of the Prescribed Body Corporate (as the case may be).
23.5 If the Prescribed Body Corporate objects to any aspect of the relevant Pastoralist's proposal and the parties cannot resolve the matter by agreement, then either party may refer the matter to the dispute resolution procedure.
23.6 The relevant Pastoralist may lock any such gate after it has given written notice to the Prescribed Body Corporate pursuant to this clause and during the period in which the Prescribed Body Corporate is considering whether to object to the particular locking or in which a dispute is being resolved.
23.7 The Prescribed Body Corporate may, by a written notice to this effect, advise the relevant Pastoralist that it considers it desirable that a gate or gates be installed in a specified fence on the land at the Prescribed Body Corporate's cost. The relevant Pastoralist shall have 30 days to advise the Prescribed Body Corporate of whether it objects to the installation of the specified gate or gates. Any dispute in relation to the installation of any such gate may be referred to the dispute resolution procedure. The Prescribed Body Corporate shall provide the relevant Pastoralist with a key to any gate installed by the Prescribed Body Corporate pursuant to this clause.
23.8 Gates are to be left as they are found, ie., any gate that is found closed, locked or open shall be closed, locked or left open respectively.
24. CONTROL OF PESTS & WEEDS
The Prescribed Body Corporate shall take every reasonable precaution to ensure that any feral animals, pests, vermin, weeds, or other undesirable plants are not introduced on the Land or that any such thing spreads as a consequence of the activities of the Prescribed Body Corporate.
25. WASTE & POLLUTION
Members of the Prescribed Body Corporate shall properly dispose of any waste or litter generated by their activities on the Land and shall not pollute, in any way, the Land, or cause any damage to the environment including, in particular, by dumping or depositing any substance or refuse in any dam, bore, stock watering point, river, stream or other watercourse on the Land.
26. CAMPING
No member of the Prescribed Body Corporate shall camp within 500 metres of any dam or other constructed stock watering point.
27. INTERFERENCE WITH PASTORALIST'S BUSINESS
Notwithstanding the other provisions of this Schedule, the Prescribed Body Corporate and its members shall not interfere with the conduct of a Pastoralist's business or cause any damage to a Pastoralist's business or any of its livestock or property.
28. EXCISION OF COMMUNITY LIVING AREAS
28.1 Subject to subclauses 4 and 5, the Prescribed Body Corporate may apply to the State for the excision from land comprised in the Pastoral Lease of an area of land specified in the application for the purpose of the establishment and maintenance of a Community Living Area and the grant of a perpetual lease for residential purposes in that land to and for the benefit either of the Prescribed Body Corporate or of specified members of the Prescribed Body Corporate identified by the Prescribed Body Corporate. [Amendments to Pastoral Act required to allow for this - see for example Part 8 of the Northern Territory Pastoral Land Act, 1992]
28.2 Prior to making any such application, the Prescribed Body Corporate shall give written notice to the relevant Pastoralist of its intention to make such an application. The Prescribed Body Corporate shall confer with the State and the relevant Pastoralist with a view to reaching agreement on the size, location and other features of the land that the Community will apply to have excised and the amount of any compensation to be paid to the Pastoralist as a consequence of any such excision.
28.3 If parties cannot agree, then the dispute may be referred to the dispute resolution procedure.
28.4 The Prescribed Body Corporate shall not make any such excision application unless the Prescribed Body Corporate can reasonably satisfy the State that sufficient funds are available to establish and develop the relevant Community Living Area and development and all other necessary approvals, consents or permission have been obtained or will be obtained.
28.5 Subject to the operation of any supervening legislation, no such excision shall be effected without the prior consent of the Pastoralist, which consent shall not be unreasonably withheld.
29. FUTURE DEVELOPMENT
29.1 A Pastoralist shall notify and consult with the Prescribed Body Corporate in relation to the following matters:
29.1.1 if the Pastoralist proposes to conduct any business on the land other than a pastoral business; or
29.1.2 if the Pastoralist proposes to undertake any proposed development, for the purpose of the Development Act, 1993, of the Land.
29.2 If the Prescribed Body Corporate reasonably considers that any such proposed activity will affect an Aboriginal Site, Aboriginal Object or any other Aboriginal site or object, then the Prescribed Body Corporate shall notify the relevant Pastoralist of this view within one (1) month of the Prescribed Body Corporate receiving the relevant Pastoralist's notification.
29.3 A relevant Pastoralist shall not undertake any such business activity or development on or of the Land which may affect an Aboriginal Object or Aboriginal Site or any other Aboriginal site or object without the prior consent of the Prescribed Body Corporate.
29.4 If the relevant Pastoralist has not received notification from the Prescribed Body Corporate pursuant to subclause 2 in relation to a proposed business or development within the period specified in subclause 2, then, subject to the provisions of this Schedule, the relevant Pastoralist may undertake the proposed business or development on the basis that such business or development will not affect an Aboriginal Site, Aboriginal Object or any other Aboriginal site or object.
29.5 Notwithstanding subclause 4 hereof, a Pastoralist shall not damage, disturb or interfere with any Aboriginal Object or Aboriginal Site in contravention of the Aboriginal Heritage Act, 1988.
29.6 Notwithstanding subclause 4 hereof, a Pastoralist shall obtain any requisite consent, approval, authority, permission, licence or other thing pursuant to the Pastoral Act, the Aboriginal Heritage Act, 1988, the Development Act, 1993 or any other applicable legislation or requirement of a governmental agency or instrumentality.
29.7 The dispute resolution procedure shall apply to any dispute arising between a Pastoralist or the Prescribed Body Corporate in relation to the proposed undertaking of either any such use or development of or any such construction works on the Land.
30. CONFIDENTIALITY
30.1 A Pastoralist shall treat as strictly confidential all information (other than information in the public domain or information that is trivial or obvious) which that Pastoralist knows to be confidential when acquired by the Pastoralist or which the Pastoralist should have reasonably known to be confidential relating to Aboriginal Objects, Aboriginal Sites or other objects, sites of cultural significance to or the cultural practices, ceremonies and beliefs of an Aboriginal Community. A Pastoralist shall not disclose any such confidential information to any person without the prior written consent of the Prescribed Body Corporate.
30.2 The Prescribed Body Corporate and its members shall treat as strictly confidential all information (other than information in the public domain or information that is trivial or obvious) which the Prescribed Body Corporate or a member knows to be confidential when acquired by the Prescribed Body Corporate or that member or which the Prescribed Body Corporate or that member should have reasonably known to be confidential relating to a Pastoralist's pastoral business or other business ventures or enterprises. A member shall not disclose any such confidential information to any person without the relevant Pastoralist's prior written consent.
30.3 The Prescribed Body Corporate and each Pastoralist shall ensure that its respective agents, employees, officers, members, shareholders, any persons residing on the Land or any persons in its control (as the case may be) observe and comply with these confidentiality obligations.
30.4 The obligations as to confidentiality pursuant to this Schedule shall survive the termination of the Agreement.
31. INDEMNITIES
31.1 Each Pastoralist shall indemnify and keep indemnified the Prescribed Body Corporate and its members, employees, agents or contractors from and against any claim which the Prescribed Body Corporate or its members, employees, agents or contractors may suffer or incur themselves or to any person caused by or as a consequence of any misfeasant (but not non-feasant) act or omission of the relevant Pastoralist or its employees, agents, contractors, invitees, visitors or other persons using or upon the Land with the relevant Pastoralist's permission or of which the relevant Pastoralist has knowledge including, without limiting the generality of the foregoing, any damages in respect of any loss of or damage to property or for the death of or injury to any person.
31.2 The Prescribed Body Corporate shall indemnify and keep indemnified each Pastoralist and their officers, employees, agents, contractors or persons residing on the Land from and against any Claim which a Pastoralist or its officers, employees, agents, contractors or persons residing on the Land may suffer or incur themselves or to any person caused by or as a consequence of any misfeasant (but not non-feasant) act or omission of the Prescribed Body Corporate or its members, employees, agents, contractors, invitees, visitors or other persons using or upon the Land with the Prescribed Body Corporate's permission or of which a member of the Prescribed Body Corporate has knowledge including, without limiting the generality of the foregoing, any damages in respect of any loss of or damage to property or for the death of or injury to any person.
32. INSURANCE
32.1 Each Pastoralist and the Prescribed Body Corporate shall, at its cost and expense in all things, effect and maintain, throughout the Term, the following insurance policies:
32.1.1 public risk and products liability insurance;
32.1.2 insurance in respect of any indemnity given by a party in this Agreement or any other liability arising pursuant to or as a consequence of this Agreement or its breach;
32.1.3 such further insurance against or in respect of such risks which the State reasonably considers appropriate to be taken out to fully insure the interests of a Pastoralist or the Prescribed Body Corporate (and any other relevant person).
32.2 Each Pastoralist and the Prescribed Body Corporate shall each do the following matters or things in respect of each policy of insurance which is to be effected pursuant to this Agreement:
32.2.1 place any such policy with an insurer approved by the State for the purposes of this clause, which approval shall not be unreasonably withheld;
32.2.2 the policy shall be for the amount of cover, in respect of the risks and with only those conditions, endorsements or exclusions reasonable required or acceptable to the State from time to time; and
32.2.3 effect the policy in the names of any relevant person reasonably required to be included by the State for the relevant insurable.
32.3 Each Pastoralist and the Prescribed Body Corporate shall each do the following matters or things:
32.3.1 punctually pay the premiums in respect of any such insurance policy at least fourteen (14) days before such premiums become due;
32.3.2 deliver to the State, a copy of the insurance policy, any renewal certificates or endorsement slips; and
32.3.3 not less than seven (7) days prior to a premium becoming due and payable under an insurance policy, deliver to the State, without demand, a copy of the receipt in respect of the payment of the relevant premium or other sufficient proof of the payment of any such premium.
32.4 Each Pastoralist and the Prescribed Body Corporate shall not do or omit to do or permit to be done or omitted, any act, matter or thing as a result of which any insurance policy effected in accordance with this clause may be vitiated or rendered unenforceable, void or voidable.
33. MANAGEMENT COMMITTEE
33.1 The State, the Prescribed Body Corporate and the Pastoralists shall establish a management committee which is to be known as ( ) for the purpose of managing and monitoring the use of the Land pursuant to this Agreement and the general operation of this Agreement.
33.2 Each of the State, the Pastoralists and the Prescribed Body Corporate may, at any time and from time to time, by written notice, appoint two (2) persons to the Management Committee. An appointed party may, from time to time, remove an appointee appointed by that party. If an appointing party has appointed a Contract Manager, then that Contract Manager shall be an ex officio member of the Management Committee and be deemed to be appointed by the appointing party.
33.3 Each appointing party may, from time to time, by notice in writing to the chairperson, appoint a person to act as an alternate of a person appointed by that appointing party to the Management Committee. If an appointee of a party is absent from a meeting of the Management Committee and his or her alternate is present, then the alternate shall be deemed to be a member of the Management Committee as the appointee of the party who has appointed the absent appointee.
33.4 The maximum number of voting members of the Management Committee shall be six (6), unless the parties agree otherwise.
33.5 The quorum necessary for the proper transaction of any business of the Management Committee shall be three (3), comprised of one appointee of each of the State, the Pastoralists and the Prescribed Body Corporate.
33.6 A member shall be regarded as present at a meeting of the Management Committee if the meeting is so conducted by telephone or other electronic means of conferring that any such member is able to hear the proceedings of the entire meeting and, for himself or herself, to be heard by all others present at the meeting. A meeting held at which some members are present by such telephonic or other electronic means shall be deemed to be held at such place as shall be agreed upon by the members present at the meeting provided that at least one (1) of the members present is at such agreed place for the duration of that meeting.
33.7 Any questions arising at a meeting of the Management Committee shall be decided by an unanimous vote of the members present and voting. Each member shall have one (1) vote only. The chairperson shall not have a casting vote.
33.8 If a casual vacancy should occur in the membership of the Management Committee, then that casual vacancy shall be filled by the appointing party who appointed the member whose vacation of office has given rise to the vacancy.
33.9 The Management Committee may, in its absolute and unfettered discretion, make recommendations and suggestions to the parties with respect to the following matters:
33.9.1 any dispute between the parties arising pursuant to or as a consequence of this Agreement;
33.9.2 any matter which may arise in the ordinary course of the use of the Land; or
33.9.3 any matter reasonably incidental to any of the foregoing matters.
33.10 The Management Committee shall meet, adjourn and regulate its meetings as it thinks fit and, unless otherwise resolved, shall meet at least [ eg. monthly ]. The first meeting of the Management Committee shall occur on or before the expiration of ninety days of the date of the Agreement or of the date of the Commencement of the Act (whichever first occurs) and take place at [ ] or on such other date or at such other place as the parties may agree.
33.11 The Minister shall appoint one of his appointees to the Management Committee as the chairperson for such duration and on such other terms and conditions as he may see fit. If the chairperson is not present at a meeting of the Management Committee, then the Management Committee members present at that meeting may elect one of their number as the chairperson of that meeting.
33.12 Any member of the Management Committee may, at any time, by not less than fourteen (14) days' notice in writing to the chairperson, require the chairperson to summon a meeting of the Management Committee. A meeting of the Management Committee may be held by giving less than fourteen (14) days' notice to the chairperson provided that all members of the Management Committee consent in writing to the meeting being held with the notice actually given or proposed to be given.
33.13 Other than a meeting convened with short notice pursuant to subclause 12, a notice of each meeting of the Management Committee specifying the time and place of the meeting and the business to be considered shall be given by the chairperson to each member of the Management Committee at least seven (7) days prior to the proposed date of the meeting.
33.14 The Management Committee shall cause minutes to be made of the matters arising, the discussions ensuing and the resolutions passed at any meeting. Copies of such minutes shall be circulated to each of the Management Committee members for consideration as to the accuracy of the minutes. If a Management Committee member considers that the minutes as circulated are not accurate in any respect, then the minutes shall be reconsidered at the next meeting of the Management Committee. If, after reconsideration, the Management Committee members cannot agree on the form of the minutes, then the minutes shall accurately record the matters of disagreement. The minutes as agreed shall be signed and dated by the chairperson or, if the chairperson was not present at that meeting to which the minutes relate, then by the person appointed as the chairperson of the meeting in accordance with this clause.
33.15 A resolution in writing signed by all of the members of the Management Committee, or by their respective alternates, shall be valid and effectual resolution as if it had been duly passed at a meeting of the Management Committee duly convened and held on the day and at the time at which the said written resolution was signed by the last member or his or her alternate to sign. Any such written resolution may be constituted by several documents in like form each signed by any number of members or their alternates but so that each member, or his or her alternate, has signed one of the several documents.
33.16 Any appointing party may raise any matter of concern at the meeting, but where possible, each party will give advance notice to the other parties of issues it wants discussed.
33.17 Any matters discussed at a meeting will be without prejudice to an appointing party's legal or equitable rights.
33.18 Each appointing party shall treat and maintain as confidential, in accordance with this Agreement, any information disclosed by another appointing party at a meeting which the disclosing party specifies as confidential.
33.19 The appointing parties agree that they shall each use their best endeavours to implement effectively any resolutions and determinations of the Management Committee and also that they shall procure their nominees, employees, or agents to act in a like manner.
34. DISPUTE RESOLUTION PROCEDURE
34.1 Subject to subclauses 16 and 17, this clause shall apply to any dispute arising between a Pastoralist and the Prescribed Body Corporate or its members pursuant to or as a consequence of this Schedule or otherwise relating to their co-existence upon the Land irrespective of whether this Schedule expressly provides that a dispute may be referred to the dispute resolution procedure contained in this clause.
34.2 Subject to subclauses 16 and 17, if any such dispute arises between a Pastoralist, the Prescribed Body Corporate or any of its members then the Management Committee shall meet as soon as possible, at a mutually convenient location, to attempt to resolve the dispute in good faith. The Management Committee shall use its reasonable endeavours to attempt to resolve a dispute.
34.3 If the Management Committee is unable to resolve a dispute within thirty (30) days of their meeting, then any of the State, a Pastoralist or the Prescribed Body Corporate may immediately refer the dispute to a meeting of the Contract Managers.
34.4 Each Contract Manager shall be empowered to make decisions on behalf of, and to bind contractually, the party who appointed that Contract Manager in all matters raised for resolution at a meeting of the Contract Managers.
34.5 The quorum for a meeting of the Contract Managers shall be the presence of the three Contract Managers.
34.6 If a quorum is not present within 45 minutes after the time appointed for commencement of a meeting of the Contract Managers, then that meeting shall be adjourned to the same time two (2) business days later at the same place or at such other time, day or place as the three Contract Managers may agree.
34.7 Resolution of any dispute shall require the unanimous agreement of the three Contract Managers acting within the ambit of each Contract Manager's actual authority conferred by his or her principal - appointor.
34.8 A notice convening a meeting of the Contract Managers may be given by any Contract Manager and shall specify the nature of business to be transacted. Unless otherwise agreed by the other Contract Managers, no business other than that specified in the notice shall be transacted at the meeting the subject of the notice.
34.9 Meetings of the Contract Managers shall be held at the venue and time and on the date agreed between the Contract Managers.
34.10 The Contract Managers shall meet to hear and attempt to resolve a dispute within five (5) business days of any such dispute being referred to them pursuant to subclause 3 or of a Contract Manager summoning a meeting of the Contract Managers by giving not less than 15 business days' notice in writing to the other Contract Managers.
34.11 A meeting of the Contract Managers may be held on less notice if agreed between Contract Managers.
34.12 One Contract Manager shall agree to be the secretary who shall perform such duties as are specified by the Contract Managers and who shall arrange for minutes of each meeting to be kept.
34.13 A copy of the minutes of each meeting of the Contract Managers shall be given to each of the Contract Managers within 10 business days of a meeting. Each Contract Manager shall, as soon as possible, either ratify the minutes as a true and correct record of the meeting or state in writing the matters in respect of which the minutes are not a true and correct record.
34.14 If a dispute has not be resolved within thirty (30) days of the Contract Managers meeting to attempt to resolve the dispute, then a party to the dispute may, by written notice, require the other parties (to avoid doubt, being two of the State, a Pastoralist or the Prescribed Body Representative ) to attend a meeting and to there attempt to agree whether the dispute should be referred to mediation, arbitration, the Pastoral Board, an independent expert, the Environment, Resources and Development Court, another court or some other forum for dispute resolution and the terms on which any such referral should occur. The State, the Pastoralists and the Prescribed Body Corporate shall appoint a person to represent it at any such meeting. The representative of each such party may, at the relevant party's discretion, be that party's Contract Manager.
34.15 If the parties fail to agree on the appropriate forum for or the terms of any such referral or any forum for dispute resolution agreed pursuant to subclause 14 fails to resolve a dispute, then, subject to subclauses 16 and 17, any of the State, the Pastoralists or the Prescribed Body Corporate may refer the dispute for determination by the Pastoral Board.
34.16 This clause does not apply to and shall not be construed as applying to any dispute concerning the interpretation or construction of a provision of this Agreement or any other question of law or question of mixed law and fact arising pursuant to or as a consequence of this Agreement or its operation. Any such dispute shall be resolved either by agreement between the parties or by referral to an appropriate court.
34.17 Nothing in this Agreement shall prevent a party from seeking such urgent relief from a court as a party may consider to be appropriate in the circumstances in order adequately to protect its interests.
35. APPOINTMENT OF CONTRACT MANAGERS
35.1 Each of the State, each Pastoralist and the Prescribed Body Corporate may in respect of each pastoral lease within the Land, from time to time for the purposes of this Agreement, appoint a person as that party's Contract Manager and may, from time to time, revoke any such appointment.
35.2 Any such appointment or revocation shall be made by a written notice served by the appointing party on the other party.
35.3 A Contract Manager shall be a delegate of the appointing party duly authorised either to exercise any of that party's rights, powers, entitlements or remedies pursuant to this Agreement or to do any act, matter or thing which is required to be performed or done or is permitted to be performed or done by the appointing party pursuant to this Schedule, including, without limitation, any of the following:
35.3.1 the signing or execution of any notice, deed, agreement, instrument or other document which is required to be or may be made or given pursuant to this Agreement;
35.3.2 the giving of any consent or approval;
35.3.3 the resolving, settling or agreeing to resolve or settle any dispute in relation to any matter arising pursuant to or as a consequence of this Agreement.
36. JOINT & SEVERAL LIABILITY
36.1 The obligations and liabilities of each Pastoralist pursuant to this Schedule shall be several only.
36.2 The obligations and liabilities of the Prescribed Body Corporate and its members shall be joint and several.
37. DEFAULTS AND BREACHES OF OBLIGATIONS
37.1 The Prescribed Body Corporate may make or pursue claims for compensation in relation to a breach of this Agreement by a Pastoralist which affects any rights conferred on a Prescribed Body Corporate or its members pursuant to this Schedule. The amount of such compensation shall be determined pursuant to the principles applicable to claims for compensation in relation to acts affecting Traditional Rights made pursuant to the Commonwealth NTA.
37.2 The Prescribed Body Corporate may institute legal proceedings for injunctive or any other appropriate form of remedy or relief to enforce the performance by the Pastoralist of the provisions of this Schedule.
37.3 If the following events occur or state of affairs subsists:
37.3.1 The Prescribed Body Corporate or a member of the Aboriginal Community (as the case may be) is in breach of a provision of this Agreement;
37.3.2 the Pastoralist has served a written notice on the Prescribed Body Corporate (as the case may be) requiring the relevant breach to be remedied within the period specified in the notice, which period must be reasonable given the nature of the breach and all relevant surrounding circumstances; and
37.3.3 the relevant breach has not been remedied within the period specified in the notice or, if that period is not reasonable then within such longer period as may be reasonable in accordance with paragraph 2,
then the following provisions shall apply until the relevant breach is remedied:
37.3.4 the benefit and operation of this Schedule shall be suspended in respect of the Prescribed Body Corporate and its members such that they may not exercise or have the benefit of any right, power or entitlement granted pursuant to this Schedule but without relieving the Prescribed Body Corporate of any obligation to perform that party's obligations;
37.3.5 the Pastoralist may, but is not obliged to, remedy any such breach and recover any costs and expenses incurred in doing so from the Prescribed Body Corporate as a debt;
37.3.6 the Pastoralist may institute legal proceedings for injunctive or any other appropriate form of remedy or relief to enforce the performance by the Prescribed Body Corporate of the provisions of this Schedule; or
37.3.7 the Pastoralist may sue the Prescribed Body Corporate for any damages the non-defaulting party has sustained or incurred.
PART B: COMPULSORY ACQUISITION
38. COMPULSORY ACQUISITION OF TRADITIONAL RIGHTS
38.1 The State may compulsorily acquire Traditional Rights, if any, pursuant to the Land Acquisition Act, 1969 for any purpose which the Minister considers appropriate, including, without limitation, either for the doing of any act for the purpose of the Commonwealth NTA or for the purpose of conferring any proprietary estates, rights or interests on a person other than the State or an instrumentality or agency of the State.
38.2 Prior to commencing the compulsory acquisition of any Traditional Rights, the State shall consult with the Prescribed Body Corporate as to whether any such compulsory acquisition is necessary or desirable in order for the State to achieve its stated policy objectives.
38.3 Without affecting the operation of section 79 of the Commonwealth NTA or section 23 of the State NTA, the maximum value of any compensation payable to the Prescribed Body Corporate (including, for this purpose, any amount payable to any other Aboriginal person or group claiming to have Traditional Rights in or to the Land) in relation to any such acquisition of Traditional Rights, if any, shall be that compensation payable if the Minister acquired the estate in fee simple to the relevant land.
38.4 Notwithstanding the other terms of this Schedule, or the provisions of the Land Acquisition Act, 1969, no compensation shall be payable unless there is a holder of Traditional Rights in respect of the portion of the Land which is or is to be compulsorily acquired.
38.5 Any such acquisition shall extinguish any Traditional Rights in respect of the portion of the Land that is compulsorily acquired to the extent that any such acquisition or the exercise of any rights obtained by any such acquisition is inconsistent with the continued existence or enjoyment of the Relevant Traditional Rights.
PART C: MINING
39. MINING ON THE LAND
39.1 Subject to subclauses 5 and 6, a person authorised pursuant to a Mining Act or a Petroleum Act may undertake any exploratory (as authorised in the relevant Mining Act or Petroleum Act) operations on the Land without being obliged to first consult with the Prescribed Body Corporate or any holder of Traditional Rights and without creating any liability to the Prescribed Body Corporate for any compensation as a consequence of the undertaking of any such exploratory operations.
39.2 A person (including a Minister or agency, instrumentality or statutory corporation of the State), specifically authorised to do any of the following, may do the following acts on the relevant portion of the Land:
39.2.1 undertake fossicking or prospecting (as defined in the Opal Mining Act, 1995) operations for precious stones (as defined in the Opal Mining Act, 1995);
39.2.2 fossicking (as defined in the Mining Act, 1971) or other minor mining operations which do not involve a significant disturbance of any land by machinery or explosives;
39.2.3 the exercise of any rights, the performance of any obligations or the doing of any act, matter or thing pursuant to or in performance of the Indentures contained as schedules to the Roxby Downs (Indenture Ratification) Act, 1982, the Cooper Basin (Ratification) Act, 1975, the Stony Point (Liquids Project) Ratification Act, 1981, the Broken Hill Proprietary Company's Indenture Act, 1937; or the Broken Hill Proprietary Company's Steel Works Indenture Act, 1958;
39.2.4 the provision of any Public Infrastructure described in clause 40 of this Schedule, without being obliged to first consult with the Prescribed Body Corporate and without creating any liability to the Prescribed Body Corporate or any native title holder of Relevant Traditional Rights for any compensation as a consequence of the undertaking of any such acts.
39.3 Prior to the undertaking of any other new mining operations (for the purpose of a Mining Act or Petroleum Act) on the Land, the person or persons proposing to undertake such operations shall consult with representatives of the Prescribed Body Corporate concerning the nature and scale of the proposed mining operations and any other relevant matters or things, but is not required to enter into the right to negotiate procedure.
39.4 Where new mining operations that are not subject to subclauses 1 and 2 are carried out on the Land then the person or persons undertaking such operations shall pay compensation to the Prescribed Body Corporate. Such compensation shall only be payable for the disturbance suffered by the Prescribed Body Corporate and its members to their Relevant Traditional Rights. Unless such compensation is agreed between the Prescribed Body Corporate and the person or persons undertaking such operations (which agreement may include provision for the provision of "non-cash" compensation), the compensation shall be determined by the Wardens Court. The maximum rate of compensation for any act of any person affecting the Traditional Rights, if any, as a consequence of the undertaking of any such mining operations in respect of any particular mining production tenement (including, without limitation, petroleum production) the subject of this subclause, shall be an annual compensation payment equal to one half of one percent (0.5%) of:
(a) in the case of a mining production tenement granted under the Mining Act, the value of the minerals, such value to be calculated in the same manner as royalty is calculated under the Mining Act ;
(b) in the case of a production tenement granted under the Petroleum Act, the value at the well head of all petroleum recovered from the land comprised in the tenement, such value to be calculated in the same manner as royalty is calculated under the Petroleum Act.
Any amounts paid or payable to the Prescribed Body Corporate or any members or to any Aboriginal Community by the person or persons undertaking any such mining operations on account of, or in respect of, any Traditional Rights they or any of them may have in respect of that portion of the Land, or in respect of any action or approval given by them or any of them in respect of the Aboriginal Heritage Act, 1988 or in respect of sacred sites or sacred objects relating to that portion of the Land (hereinafter called "Heritage Payments") shall be deemed to be compensation payable pursuant to this clause such that no further compensation is payable unless and until and to the extent that the total amount of maximum annual payments payable under this subclause exceeds the amount of the total Heritage Payments.
39.5 Notwithstanding the other terms of this Schedule or the provisions of any other Act, no compensation shall be payable in respect of mining activity or operations on a Pastoral Lease unless there is a Traditional Rights Holder in respect of that portion of the Land which is affected by the mining activity or operations.
39.6 Notwithstanding the other terms of this Schedule, or the provisions of any other Act, there is no obligation to consult or to pay compensation pursuant to this Schedule in respect of any mining activity or operations that was lawfully in existence at the date of the Agreement.
39.7 The right to compensation contained in and payment in accordance with subclause 5 shall be in substitution of and shall absolutely release and discharge the State and any other person from any Claim to the Prescribed Body Corporate or any native title holder of any Traditional Rights either for any requisite acquisition of the Relevant Traditional Rights, if any, or for any acts of any person affecting (whether by extinguishment or inconsistency) the Relevant Traditional Rights, if any, as a consequence of any mining operations including, without limitation, any Claim for the payment of any compensation to the Aboriginal Community in relation or incidental to the undertaking of the relevant mining operations, any consequent acquisition of the Relevant Traditional Rights, whether pursuant to any relevant Mining Act or Petroleum Act, the Commonwealth NTA, the State NTA, the Land Acquisition Act, 1969 or any such Claim at common law.
39.8 Nothing in this clause shall authorise or be construed as authorising the doing of any act, matter or thing contrary to the Aboriginal Heritage Act, 1988.
39.9 The doing of any act, matter or thing by any person pursuant to or in exercise of the rights created by this clause shall be subject to the obtaining of any approval necessary pursuant to the Aboriginal Heritage Act, 1988.
PART D: PUBLIC INFRASTRUCTURE
40. PUBLIC INFRASTRUCTURE ON THE LAND
40.1 Subject to subclause 2, the construction, operation, maintenance, repair or replacement of any Public Infrastructure does not and shall not be construed as affecting, in any way, any Relevant Traditional Rights.
40.2 Subclause 1 does not apply to any such item of Public Infrastructure which is or is to be fenced unless any such fencing has sufficient gates to enable the Prescribed Body Corporate or its members to use or enjoy the relevant Land and arrangements for access to the relevant fenced portion of the Land by those gates have been agreed between the State and Prescribed Body Corporate.
40.3 Nothing in this clause shall authorise or be construed as authorising the doing of any act, matter or thing contrary to the Aboriginal Heritage Act, 1988.
40.4 The doing of any act, matter or thing by any person pursuant to or in exercise of the rights created by this clause shall be subject to the obtaining of any approval necessary pursuant to the Aboriginal Heritage Act, 1988.
PART E: WAIVER OF RIGHTS
41. PRIVATE RIGHTS
41.1 The rights or entitlements granted or created in this Schedule are for the respective benefit and protection of the Pastoralists, miners, developers, the Prescribed Body Corporate and its members or other persons (as the case may be) in their respective private capacities.
41.2 Any Pastoralist, miner, developer or other person may enter into a contract with the Prescribed Body Corporate pursuant to which any such person or the Prescribed Body Corporate may agree to vary, waive, suspend, extinguish, terminate or dispense with any rights or entitlements granted to any such person or the Prescribed Body Corporate pursuant to this Schedule for such consideration and on such terms and conditions as that person or the Prescribed Body Corporate may consider sufficient or appropriate and agree to in his, her or its absolute and unfettered discretion without infringing any public right or public policy.
41.3 For the avoidance of doubt, an agreement or promise to vary, waive, suspend, extinguish, terminate or dispense with any rights or entitlements granted to any such person or the Prescribed Body Corporate shall be and be construed as being good and sufficient consideration for the purpose of entering into a legally binding and enforceable contract.
41.4 Unless the State has consented to any such contract, no such contract shall bind or apply to the successors in title of any Pastoralist, miner, developer or other person.
SCHEDULE TWO
Item 1: The Representative
Item 2: The Aboriginal Communities
Item 3: The Pastoral Leases
Item 4: The Land
Item 5: Aboriginal Objects
Item 6: Aboriginal Sites
DATED: DAY OF 1997
AREA AGREEMENT
BETWEEN
MINISTER FOR THE ENVIRONMENT AND NATURAL RESOURCES
The Minister
- AND -
[ ] INC. for and on behalf of the [ ] ABORIGINAL COMMUNITIES
The Representative
SOUTH AUSTRALIACROWN SOLICITOR9th Floor, 45 Pirie Street Adelaide SA 5000
Draft 1 / 12 June 1998
TABLE OF CONTENTS
AGREEMENT
1. Accuracy of Recitals
2. Definitions & Interpretation
3. Aims of this Agreement
4. Acknowledgments
5. No Admission of Existence of Traditional Rights
6. Consideration
7. Section [ ] authorisation
8. State to Enact Legislation
9. Release
10. Suspension of Common Law Traditional Rights
11. Creation of the Prescribed Body Corporate
12. Term
13. Consequences of Breach
14. Successors & Assignees Bound
15. Ability to Assign or Encumber this Agreement
16. Public Announcements
17. Employees & Agents
18. Further Assurances
19. Entire Agreement
20. Waiver
21. Amendment
22. Reading Down & Severance
23. Relationship between the Parties
24. Costs
25. Stamp Duty
26. Proper Law
SCHEDULE ONEPART A: PASTORALISTS
27. Regulation of Rights
28. Exercise of Rights by the Aboriginal Community and the Pastoralist
29. Conduct of Pastoral Business
30. Pastoralist's Exclusive Occupation
31. Section 47 of the Pastoral Act
32. Exercise of any Relevant Traditional Rights
33. Compliance with Agreement by Third Parties
34. Traditional Rights Applications
35. Cultural Ceremonies & Practices
36. Aboriginal Sites & Objects
37. Use of the Land
38. Access to the Land
39. Use of Water
40. Dogs & Other Animals
41. Hunting & Firearms
42. Fishing
43. Fires
44. Cutting of Timber
45. Taking of Plants
46. Burials
47. Protection of Natural Features
48. Commercial Enterprises
49. Gates
50. Control of Pests & Weeds
51. Waste & Pollution
52. Camping
53. Interference with Pastoralist's Business
54. Excision of Community Living Areas
55. Future Development
56. Confidentiality
57. Indemnities
58. Insurance
59. Management Committee
60. Dispute Resolution Procedure
61. Appointment of Contract Managers
62. Joint & Several Liability
63. Defaults and Breaches of Obligations
PART B: COMPULSORY ACQUISITION
64.Compulsory Acquisition of Traditional Rights
PART C: MINING
65. Mining on the Land
PART D: PUBLIC INFRASTRUCTURE
66. Public Infrastructure on the Land
PART E: WAIVER OF RIGHTS
67. Private Rights
SCHEDULE TWO
Item 1: The Representative
Item 2: The Aboriginal Communities
Item 3: The Pastoral Leases
Item 4: The Land
Item 5: Aboriginal Objects
Item 6: Aboriginal Sites