Summary of contract

• Negotiation, representation, and other relevant context

  The parties to this agreement are: the Attorney General on behalf of the Crown in right of the state of South Australia; the Minister for Mineral Resources Development; William Herbert Lennon, Ian Crombie, Keith Smith, David Brown, Herbert J. Lennon and Jean Wood (the native title claimants) for and on behalf of the Antakirinja Native Title Claim Group; the Antakirinja Land Management Aboriginal Corporation (the Association); Aboriginal Legal Rights Movement (ALRM); and the South Australian Chamber of Mines and Energy Inc. The Native Title Claim Group authorized the native title claimants to enter into this agreement on behalf of the native title parties. ALRM is the representative Aboriginal/Torres Strait Islander body for the agreement pursuant to the Native Title Act (Recital E). The parties recognize that the relation of Aboriginal people to land and waters is central to their well-being and continuing connection to the religious, emotional, spiritual and non-human world (Recital J). The parties recognize that the state asserts its ownership of minerals in South Australia (Recital K). The parties have negotiated this agreement to promote the exercise of rights in a way that advances economic development through authorized exploration activities (Recital L). This agreement provides for consent to the grant of the authorized exploration tenements, procedures protecting the rights of the Native Title Claim Group and claimants in relation to the grant and the carrying out of the authorized exploration activities (Recital L). The parties acknowledge that the grant of exploration tenements or the carrying out of authorized exploration activities have to follow the procedures set out in the agreement, and therefore, the right to negotiate procedure as established in the Mining Act and the Native Title Act does not apply (Arts. 1, 3.2). The consent of the parties to any authorized exploration tenement and exploration activities is conditional on an explorer having complied with the exploration contract conditions (Recitals, Arts. 3.1, 3.3). The Association and the Native Title Claim Group record that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters in the agreement area have been identified and authorized the making of this agreement (Art. 10). The grant of an authorized exploration tenement and the conduct of activities under that tenement do not extinguish the Native Title Claim Group’s native title over the land and waters covered by this agreement (Art. 4.1). All communications among the parties under this agreement will be in writing (Art. 12). Schedule 1 contains the description of the agreement area.

• Governance, implementation, dispute resolution

  If a party to the agreement holding an exploration tenement breaches an essential term of the agreement, the consent given to the exploration does not apply (Art. 3.7). If within 20 business days of becoming aware of that alleged breach, the Association or the Native Title Claim Group give notice and require remedy to the defaulting party, the defaulting party has 20 business days to remedy the breach (Arts. 3.7, 3.8). The exploration tenement to which the consent does not apply is called an excluded tenement and the right to negotiate procedure, in the terms of the Mining Act and the Native Title Act, applies to an excluded tenement (Art. 3.10). A person may enter into an accepted exploration contract in relation to an exploration tenement by signing and registering an acceptance deed and notifying the Association and the Native Title Claim Group of the acceptance document’s signature. The parties acknowledge that all persons holding native title in relation to any of the land and/or waters in this agreement’s area, who are not members of the Native Title Claim Group, are bound by this contract in relation to any of the land and/or waters to which the contract or an accepted exploration contract applies (Art. 5.3). The government must notify the Association of the grant of any exploration tenement within the agreement area to any person within 10 business days of the grant (Art. 7). The Association may notify the other parties to this agreement that it wishes an exploration mapping survey or a cultural mapping survey to be undertaken. The government will evaluate the reasons for requesting the mapping and agrees to be responsible for all costs and expenses incurred in the mapping survey (Art. 8). Every 5 years, any party to the agreement may give the other parties notice that it requires a review of the agreement. After receiving the notice, the parties will meet within 20 business days to negotiate in good faith the amendments proposed to the agreement. If no agreement has been made regarding the amendments proposed, then the agreement no longer enables an explorer to enter into an accepted exploration contract, but it does not in any way affect any accepted exploration contracts entered into prior to the review date (Art. 2.2). The parties agree that they will make every effort to ensure that disputes do not arise and if they arise it will not be taken to litigation or arbitration (except litigation proceedings for injunctive, interlocutory or declaratory relief). If a dispute arises the complainant party will notify the other parties of the dispute within 20 business days, then they will meet within 5 business days and will try to resolve the dispute within a further period of 10 business days. If the dispute is not resolved the parties will request the president of the Law Society of South Australia to appoint a mediator. If the dispute is not resolved it will be taken to an expert, who is not an arbitrator, and the expert’s determination is final and binding on the parties in dispute. Each of the parties in dispute will bear its own costs in relation to the expert’s determination, unless the expert determines a different distribution of the costs (Art. 11). Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in South Australia in connection with matters concerning this agreement (Art. 14.10).

• Fiscal obligations: content

  Upon registration of this agreement, the State must: (i) make a once-off payment of $30,000 to the Association, (ii) negotiate a lease of appropriate office premises to enable the Association and the Native Title Claim Group to perform their obligations under the agreement and contribute an amount of $5,000 towards the rent, and (iii) provide office equipment and pay any associated connection fees. The Association and the Native Title Claim Group are not entitled to any compensation entitlement other than for the amounts payable and benefits provided under this agreement and any accepted exploration contract (Art. 9.3(b)). If a goods and services, value-added or a comparable tax (GST) applies, the amount payable by the party recipient [undefined] to the party supplier [undefined] in respect of the taxable supply does not include GST (Art. 13).

• Community development obligations: Local content

  The parties acknowledge that there are limited opportunities to employ people from the Native Title Claim Group during the exploration and that those opportunities are for people with specialist skills and training. The parties express their interest that the government funds training in exploration methods and mining field assistance for Aboriginal people. The parties agree to consult with the relevant Aboriginal communities and to develop the necessary strategies and programs for the training (Art. 4.7).

• Transparency or confidentiality

  The parties agree to use their best endeavors to obtain the registration of this agreement on the Register of Indigenous Land Agreements (Art. 6.2). All of the parties to the agreement may request the registrar to remove the details of the agreement from the register by advising the registrar in writing that they wish to terminate the agreement. If details of the agreement are removed from the register, the consent given to the any future exploration done after that removal ceases to apply (Art. 6.3). A person may enter into an exploration contract and the carrying out of exploration activities by notifying the Association and the Native Title Claim Group of the explorer's due completion and signature of the deed of acceptance of the exploration and simultaneously providing the Association and the Native Title Claim Group with an original or duplicate original of the acceptance document and evidence that has been duly stamped and, if applicable, registered under the Mining Act (Art. 5(a)(iii)).

• Other noteworthy clauses

  No party is entitled to terminate the agreement for any reason, including breach or repudiation of the agreement (Art. 2.3). The parties to the agreement acknowledge that compliance with the terms and conditions of the agreement is not a condition of any authorized exploration tenement (Art. 4.5). Schedule 2 “Exploration Contract Conditions”, Schedule 3 “Acceptance Document”, and Schedule 4 “Mapping Survey Procedures” are all missing from the document.