Fostering Native Title and Indigenous Relations

James Price Point –what did we learn?

Content

Land Access

Native Title rights

Best practice agreement making

• Homework

• Protocol

• Process

• Benefits

• Implementation

Trends

Land Access

Land use frequently requires approvals under

the Aboriginal Heritage Act and the Native

Title Act.

Generally a Cultural Heritage Agreement sets out how

Aboriginal sites will be identified and protected and disputes

resolved

The NT Act requires consultation with people who hold native

title rights over the land involved and will generally result in

a Land Access and Exploration/Production Agreement

Native title rights

A bundle of inalienable rights

Rights generally include:

• Land access

• Involvement in land use decisions

• Rights to traditional resources – food/water/ochre

• Rights to protect significant areas/sites

• Acknowledgment as custodians

• Rights MAY include living rights and access

control

Do Not legally include minerals/hydrocarbons/water

Legalities

1. Legislation

I. Mining Act

II. Aboriginal Heritage Act

III. Native Title Act

IV. Petroleum and Geothermal Energy Act

V. Public Works Act – rail and ports

1. Native title tenure:

1. Claimed

2. Determined non-exclusive

3. Determined exclusive

4. Reserves and Aboriginal freehold

Court guidance

Valuable rights

NTA - just terms for any loss or impairment

Courts recognize special attachment

Can exceed freehold values

Courts have valued hunting rights

Courts or government will in time value

other aspects

(the assessment process at present is too

arbitrary to be permanent)

Best practice

• Sustainable

• Defendable

• Intra and Inter generational

• Compliant with International Human rights

• Informed and trained participants

• Effective and open communication

• Ministers have agreed on:

• Interest based approach

• Good faith

• Flexibility

• Fair

Fair

Fair negotiation process

Recognition of a right to be involved

Respect and courtesy

Consistent management

Everyone has a right to a minimum

entitlement

Equality of opportunity in the rewards

Reward for effort - no free kicks

Sharing of pain and gains

Priority rights to existing users

Best practice approach

1. Be clear on your situation

2. Understand the community/social aspects

3. Attempt to understand existing

agreements

4. Assess strengths and weaknesses

5. Consider RTN principles

6. Benchmark assessment

7. Develop a balanced package

Your situation

Leases needed

Access

Infrastructure

Your Traditional Owner Community

Your Traditional Owners

Ngarla BHPB Goldsworthy

Kariyarra BHPB, Atlas, FMG

Ngarluma/Yindjibarndi Rio, FMG, Atlas

Kuruma Marthudunera Rio,

Thalanyji Chevron, BHPB Petroleum

Gnulli New Standard

Puutu Kunti Kurrama Pinikurra Rio, Paulsen’s

Eastern Guruma Rio, Brockman,

Banjima BHPB, Rio, FMG

Yinhawangka Rio

Nyiyaparli BHPB, Rio, FMG, Cons. Coobina

Palyku BHPB, FMG

Njamal Wedgetail, Woodie-Woodie

Warrarn

Nyangumarta

Martu and Ngurrara Newcrest

Thudgari Jurruru

Ngurrara

Understand their situation – be prepared to invest in this

Operating mines

Benchmark other agreements

1. Commodity (perceived profitability)

2. Location (community perceptions)

3. Other companies

Uranium

Oil and gas

Diamonds

Gold

Iron ore

Base metals

Industrial

Infrastructure

Northern Territory

Kimberley

Pilbara

Mid West, SA, Goldfields

South West, Qld, NSW, Vic

RTN principles

1. Land area used to be minimised

2. Exclusion areas notified at beginning

3. NT restored in full wherever possible

4. Land to be remediated to best practice

5. Involvement in heritage clearance and monitoring during

construction

6. Continued right of land access except when unsafe

7. Liaison mechanism

8. Cultural heritage training for all on-site employees

9. Training fund

10. Priority employment rights

11. Priority business opportunities

Types of agreements

Mining – exploration and production,

project and claim wide

Oil and gas – exploration, production,

conjunctive, regional, project and claim

Pipelines

Infrastructure – ports, rail, roads, water

supplies

Land agreements

Regional agreements.

A package

Community and company determine slices

Health, education,

recreation, art, music,

language, culture

Equity?

Suitable for a very small number of groups

Requires corporate decision structure -

separation of director responsibilities from

community

Can require large borrowings

Free carried must be diluted over time

Equity acquisition and sale considerations

Lack of relationship to land activity

Benefits only flow on sale

Conflict with other communities

Highly unlikely with any worthwhile companies

Good for my business

Trends

More sophisticated payment structures –

floors/ceilings, indexation, reviews

Greater emphasis on legal provisions

Need for best practice learning

Some interest in community profiling

More comprehensive employment and contract

provisions

Consideration of equity

Government concerns on the rise

More aggressive negotiation – great in short term

A good process and agreement

Clear understanding of the process and timelines (Negotiation

Protocol)

Agreed budgets and meeting locations

Defined confidentiality constraints

Defined communication channels

Clear explanation of land impact, timelines, jobs and contract

opportunities

Records of all decisions and confirmation at subsequent meetings

Industry benchmarks on other projects

Consideration of all options

Response on all issues by both parties

Time to consult with all stakeholders

Availability of expert advisors on contentious issues

Transparent and known authorisation process

Dispute resolution process

Consideration of the structures required for successful

implementation

Funding and support for ongoing relationships and monitoring

Benchmarks – oil and gas

Large Oil and Gas

Signature $25,000 to $500,000

Grant of all approvals $25,000 to $500,000 cpi

Grant of all tenure $25,000 to $300,000 cpi

Business incubation $25,000 pa to $400,000 cpi pa

Start construction $25,000 to $2,000,000 cpi

First gas $25,000 to $10,000,000 cpi

Production payments or land rental

Up to 1% of sales, land up to

$3,500,000 pa

Liaison officer

Liaison committee

Education fund $25,000 to $1,250,000 pa

Traineeships $50,000 to $1,300,000 pa

Cultural Heritage project

Contract preference Best endeveavours at least

Employment: Monitors during construction

Operating phase targets

Project Project Project

Rio Tinto – 7 claims

Havilah Resources

Gellard phosphate

BHP Billiton 4 claims

Murchison Metals - Weld Range

Wedgetail Gold

FMG – 3 claims Ngarluma Roebourne

FMG Glacier Valley Hancock – 4

claims Integra Mining Hancock Pilbara

rail Aquila/API – 3 claims

Saracen Gold Jabiru Benambra

Iluka Mildura Atlas Abydos Giralia iron ore

Mount Gibson Iron

Hancock Balfour Downs

North West Infrastructure Inpex Browse

Basin Telfer pipeline Brockman

Resources Officer Basin Energy

Ngarluma Aurox Hazelwood Tungsten Jack Hills Yalgoo SKA

project CBH Sulphur Springs Hancock Balfour

Downs Kimberley Diamonds Ellendale

Iluka Eucla Basin

Wilga Coal mine Wiluna West iron Hancock Roy Hills

Phanerozoic nickel

Galaxy Ravensthorpe

Latji Latji regional

IOH Phil’s Creek Noongar single claim

Alpha Coal

Brockman Resources

Crosslands Jack Hills

Pangaea – 9 claims Radio Telescope

SKA Atlas Pardoo Gorgon pipeline

Olympic Dam Kingsway oil IOH Iron Valley

Ravensthorpe Nickel

Robertson Range iron

Kimberley Iron Ore Vital Metals Cairn Hill iron ore Sandfire Doolgunna Prominent Hill Wilcherry Hill Fairstar Iron ore

Spinifex Ridge BHPB Macedon gas

Windimurra vanadium Beta Nutrition Karara magnetite OPR rail and port

Tiwest Dongara Oakajee Port and Rail

Moly Metals iron ore Chevron

Wheatstone Straits Torrens copper

New Standard Oil Gnulli Perilya Zinc James Price Point

LNG Weld Range chromites Yannarie Salt New Standard

Energy Rodinia Officer Basin oil Baldivis Quarry Flinders iron Silver Lake

Kintyre uranium Onslow Resources

Central Petroleum

Telfer gold Merlinleigh oil and gas

Buru Energy