Australian Indigenous Law Reporter
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The agreement is also set to become the first 'indigenous land use agreement' (ILUA) under the amended Native Title Act 1993 (Cth). It determines a co-operative arrangement between the mining company and the traditional owners over their lands.
The agreement is between a coalition of the Wiradjuri people, the Walgalu people, the Tumut Brungle Local Aboriginal Land Council and Adelong Consolidated Gold Mines NL. It concerns the proposed gold mine at Adelong in south central NSW.
The agreement secures the right for the Aboriginal community to enforce environmental standards. It also involves the Aboriginal community in environmental monitoring and archaeological clearance with secure rights to protect significant areas, jobs, education as well as offering training opportunities.
The Aboriginal community were represented by the NSW Aboriginal Land Council (solicitor Adam McLean, barristers John McCarthy QC, Jeff Kildea and Peter Kilduff).
The success of the negotiations was attributed to two important factors. Firstly, the ability of the various groups within the Aboriginal community to come together to form a united negotiating position. Secondly, the agreement between the parties on a negotiation protocol.
Once a united position was agreed amongst the Aboriginal community, a negotiation protocol was settled with the mining company. The negotiation protocol set out how the negotiations concerning the mine were to take place. The negotiation concerning the protocol took over three months to settle. However, once this was achieved the mining agreement took only two weeks to finalise.
Without the protocol, the overall negotiations would have taken much longer to complete. Reproduced with this article is the form of protocol that was settled between the parties.
To guide negotiations for the development of the XX Project and infrastructure between XX Mining Company and the YY Aboriginal People.
1.1 This protocol describes the principles and procedures that will govern the negotiations concerning XX Mining Company's proposals to develop the XX Project.
1.2 XX Mining Company intends to develop the XX Project and, subject to certain preconditions, to construct the mine and infrastructure in the project area. To this end XX Mining Company wishes to secure such rights and title in these lands and waters to enable the project to be developed and operated for the full project life which would be in excess of twenty one (21) years.
1.3 The YY Aboriginal People have traditional connections in and around the project area, and assert native title rights and interests and other rights at common law and pursuant to NSW and Commonwealth legislation over the land and waters the subject of impact from the project.
1.4 XX Mining Company and the YY Aboriginal People wish to negotiate an agreement to provide for a mutually advantageous and long-term relationship to address such issues as they may agree upon while recognising and respecting the rights and interests of the other. The agreement will address XX Mining Company's objectives and the YY Aboriginal Peoples' aspirations; and in particular, XX Mining Company wishes to secure such enforceable rights in the project area for the project to be developed and operated whilst respecting the native title rights and interests of the YY Aboriginal People.
1.5 A Working Group is established to manage the proposed project from the indigenous perspective and to liaise and negotiate with XX Mining Company.
1.6 Negotiations are being conducted under the provisions of the Native Title Act 1993 (Cth) (NTA).
2.1 To develop the project and to ensure timely and legally secure access to the project area land and waters required to plan, construct and operate the mine and infrastructure at the lowest possible cost consistent with appropriate social, environmental and cultural considerations.
3.1 The YY Aboriginal People have aspirations for themselves and the broader local indigenous community who reside in the AAA region. These aspirations include:
(a) to promote economic self-sufficiency within the YY Aboriginal people and members of the local indigenous community to the greatest extent possible;
(b) to participate as fully as possible in the project and mine-related ventures;
(c) to be able to live on, care for and have access to their traditional lands;
(d) to protect fully their natural environment and its resources;
(e) to identify and protect sites of significance to themselves;
(f) to ensure that the standard of health, employment rates, education opportunities and other social indices of YY Aboriginal people and the broader local indigenous community who reside in the AAA region are favourably comparable to the standards of other Australian citizens; and
(g) in particular, to ensure that any native title rights and interests they have are not extinguished by the grant of leases or titles by the State of New South Wales which are required for the project to proceed.
4.1 The parties recognise that they will be working together at XX in the future. The negotiations should therefore explore results upon which both parties reach agreement and which will provide long term benefits and security to both parties.
4.2 The parties both wish the negotiations to be conducted in good faith with mutual respect to build on the trust and goodwill that already exists between them.
5.1 The YY Aboriginal People are represented by its Working Group, and XX Mining Company will be represented in the negotiations by ...
5.2 Each Party reserves the right to change or add to its representatives in the negotiations as required.
5.3 Each Party may have appropriate advisers (including legal representatives) present at negotiations. Outside experts may be called upon for advice as long as they are prepared to sign a confidentiality agreement prepared by both parties.
5.4 Recognised YY Aboriginal people Aboriginal elders shall have the right to attend the negotiations as observers. Both parties recognise that there may be times, determined by mutual agreement, when observers should not be present.
6.1 Negotiations shall take place at Sydney or such other places as the parties agree.
6.2 A schedule of meetings between the parties will be prepared by the parties.
6.3 Scheduled meetings will not be postponed because of non-attendance of individual representatives, as long as there are at least one XX Mining Company's representative and three YY Aboriginal people Working Group representatives.
7.1 All parties commit to working together in good faith and to not undertake actions which might affect the ability to negotiate in good faith.
7.2 Negotiations should be free and frank, and without prejudice. All parties agree that any statements made, understandings reached or interim agreements made in the course of negotiations or communications between the parties shall not be legally binding upon any party unless expressly stated to be intended to have legal effect and expressly authorised by the relevant party.
8.1 The following is a list of the broad substantive issues that the parties intend to address in respect of the XX Project during negotiations. It is envisaged that the settlement of negotiations will comprise a number of documents and types of documents including a primary deed of agreement, and such supplementary agreements or forms of agreements under appropriate provisions of the NTA as are necessary to accommodate the interests of the parties. The list is not intended to be exhaustive and issues may be added or amended by agreement in writing of the parties:
ò Culture and heritage including protection of important sites and continuation of traditional activities.
ò Establishment, operation and support for a prescribed body corporate.
ò Determination of monetary and non-monetary compensation including interaction and economic participation rights.
ò Administration and distribution of monetary and non-monetary compensation.
ò Establishment of one or more entities to represent the YY Aboriginal People in relation to the implementation and administration of the agreement.
ò Framework for future acts affecting native title lands.
ò Framework for access to lands and waters and for access to natural resources of those lands and waters. This could include:
(i) a co-management structure for crown land;
(ii) co-management of the conservation and exploitation of natural resources;
(iii) co-management of land rehabilitation.
ò Acknowledgment of existing interests [such as infrastructure interests held by service providers (eg. Telstra)].
ò Preservation of rights under the NTA.
8.2 The identification by the parties of these broad substantive issues will not be used by any party during negotiations so as to limit the scope of discussion under each issue.
8.3 The inclusion of a substantive issue in this section does not commit any of the parties to conclude agreement on it.
9.1 Subject to clause vv, an agreement reached as a result of the negotiations must be in writing and signed by both parties within seven (7) days after the date on which the agreement was reached.
9.2 An agreement made under clause vv will be subject to the approval of:
(a) a full meeting of the YY Aboriginal People;
(b) the Board of Directors XX Mining company; and
(c) any other party, if any, to the agreement.
9.3 The YY Aboriginal People Working Group and XX Mining Company must use their best endeavours to obtain the above approvals as soon as practicable.
10.1 Both parties agree that the negotiations will be conducted in private and they will not discuss any information disclosed during the negotiations with any member of the public unless both parties agree in writing or unless required by law to make the disclosure.
11.1 Any public comment will be agreed and issued jointly by the one or more managers listed in paragraph vv as representing XX Mining Company and the YY Aboriginal People Working Group.
12.1 XX Mining Company shall reimburse actual, reasonable and verifiable costs of the negotiations as per the financial support package in Schedule 1.
12.2 Written agreement by XX Mining Company shall be obtained prior to any commitment to expenditure in excess of $. Where such an agreement is sought the request shall be accompanied by a detailed written work plan which shall include verifiable and detailed cost estimates.
13.1 The Parties signify their agreement to conduct the negotiations in accordance with the protocol.
Dated:..............................................
Signed on behalf of Mining Company:
Name: ..............................................
Witness: ..............................................
Signed on behalf of YY Aboriginal People Working Group by:
Name: ..............................................
Witness: ..............................................
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/4.html