Summary of contract

• Negotiation, representation, and other relevant context

  This document is Schedule 2 of the 2003 Arabunna Area Mineral Exploration Indigenous Land Use Agreement. It contains the exploration contract conditions that apply to any authorized explorer in the Arabunna native title claim area who enters into an accepted exploration contract. The parties to this exploration contract conditions document are the Attorney General for Australia; the Minister for Mineral Resources Development; the registered native title claimants for and on behalf of the Arabunna native title claim group; Ularaka Arabunna Association Inc established by the Arabunna native title claim group; and the authorized explorer in the area. The native title claim group authorized the native title claimants to enter into an accepted exploration contract (Recital A). This document is for exploration only and does not grant to the explorer any production tenement or the right to carry out mining operations (Art. 4.3). Compliance with the terms and conditions of the accepted exploration contract is not a condition of any authorized exploration tenement (Art. 4.6). The parties acknowledge that all persons holding native title concerning the land and waters in the exploration area, which are not members of the Arabunna native title claim group, are bound by the accepted exploration contract in relation to the land to which the accepted exploration contract applies (Art. 4.7). By entering into the accepted exploration contract, the native title claim group and the native title claimants do not acknowledge that any exploration activities previously carried out by the explorer will not have affected any native title concerning land and waters (Art. 14.4). All communications among the parties under the accepted exploration contract will be in writing (Art. 18.1).

• Governance, implementation, dispute resolution

  If the Minister for Mineral Resources grants any exploration tenement within the acceptance area, the Minister must notify the native title claim group and the native title claimants of the grant within 10 business days (Art. 11.3). The native title claim group, the native title claimants and the Ularaka Arabunna Association must not interfere with the explorer’s rights and must not make any objection to any grant of any exploration tenement to which the accepted exploration contract applies or is capable of applying, except if the explorer has breached an essential term (Arts. 9, 10). If the explorer holding an exploration tenement breaches an essential term of the exploration contract conditions, the accepted exploration contract does not apply. Within 20 business days of becoming aware of that alleged breach, the native title claimants, the native title claim group and the Ularaka Arabunna Association have to give notice to the explorer of the breach and that the explorer has 20 business days to remedy the breach. Article 15.4 sets out examples of the process that is followed for breaches of essential terms when the explorer does and does not remedy them (Art. 15). The native title claimants, the native title claim group, and the Ularaka Arabunna Association may ask the Minister for Mineral Resources to cancel or suspend any authorized exploration tenement if there is an alleged breach constituting non-compliance by the explorer with any provision of the Aboriginal Heritage Act (Art. 10.2). The Minister for Mineral Resources has to consider the request by the native title claim group and the native title claimants and keep records of the objection or request until 6 years after the end of the exploration activities (Art. 11). The native title claimants, the native title claim group, the Ularaka Arabunna Association, and the explorer are entitled to appoint up to 4 representatives each, to act as the primary point of contact for all purposes in connection with the accepted exploration contract including compliance and consultation (Art. 16). They agree that they will make every effort to ensure that disputes do not arise. If a dispute arises, it will not be taken to litigation or arbitration (except litigation proceedings for injunctive, interlocutory or declaratory relief). Instead, the complainant party will notify the other parties with which it has the dispute within 20 business days. 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 in dispute will request the President of the National Native Title Tribunal to appoint a mediator. If the dispute is not resolved by the mediator, any party in the dispute may refer the case 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 costs concerning the expert’s decision, unless the expert determines a different distribution of the costs (Art. 17). The explorer can assign its rights under the accepted exploration contract if they obtain the Minister’s consent and execute a deed of assumption consistent with the template deed in Annexure D (Art. 20.6). Each party to an accepted exploration contract agrees to do all things and sign all documents necessary to give full effect to it and the transactions contemplated by it (Art. 20.10).

• Fiscal obligations: content

  The explorer must pay an acceptance fee of AUD$ 7,000 before carrying out the exploration activities. If the exploration tenement is the fourth or subsequently authorized exploration tenement, the explorer must also pay AUD$ 2,000. The amounts must be paid free of exchange and without any deduction, set-off or withholding. The payments have to be made to the “nominated body” that can be either a body corporate or a trust nominated by the native title claimants, the native title claim group and the Ularaka Arabunna Association (Art. 6). The nominated body is the agent of the native title claim group and the native title claimants in relation to all amounts paid by the explorer as acceptance fees and individual survey payments. Any payment to the nominated body is considered to be a payment to the native title claim group or the native title claimants (Art. 6.5). If goods and services are value-added or a comparable tax (GST) applies, the amount payable does not include GST (Art. 19).

• Community development obligations: Local content

  There are limited opportunities to employ people, including people from the native title claim group, during the exploration. Those employment opportunities that do exist are for people with specialist skills and training. The explorer must notify the Ularaka Arabunna Association of any job vacancy concerning the exploration activities not less than 15 or 2 business days, depending on the type of vacancy, before applications for that vacancy close. The explorer must give employment preference to a member of the native title claim group with the necessary skills and ability to carry out the relevant duties in a satisfactory manner. The explorer must provide to any employee that is part of the native title claim group the same on-job training as any other employee receives (Art. 13).

• Environmental and social protection

  The explorer can only carry out exploration activities on land in respect of which the explorer: (i) has an authorization granted by statutory authority; (ii) has been issued a mapping authorization to conduct a mapping survey concerning the exploration land and the activities that the explorer will carry out on that land; or (iii) has complied with the provisions of the heritage clearance procedures (annexed to the exploration contract conditions as Annexure A - Heritage Clearance Procedures) and a clearance approval has been given. If the explorer identifies any site, object, or remains which the explorer suspects may be Aboriginal, the explorer must promptly report to the Ularaka Arabunna Association the location and do avoid damaging, disturbing, or interfering with the relevant object or remains. The explorer must use reasonable endeavors to ensure that its employees, contractors, and subcontractors are aware and have an understanding of the Aboriginal culture, including the significance of land and waters to Aboriginal people and their customary and traditional activities. The explorer, in consultation with Ularaka Arabunna Association, must ensure that those employees, contractors, and subcontractors receive training in the traditions, history, and culture of the Arabunna native title group (Art. 5). The native title claimants, the native title claim group, and the Ularaka Arabunna Association may notify the explorer of any proposals which they have for the rehabilitation of land or waters within the exploration area to ensure that there will be no significant long term adverse effect on their ability to pursue customary activities because of the exploration activities. The explorer is required to give due consideration to any such proposals it is notified of (Art. 7.2). The explorer acknowledges that members of the native title claim group have the right to pursue customary and traditional activities on the exploration land. The native title claim group and Ularaka Arabunna Association, can use any roads and tracks constructed to carry out authorized exploration activities but the explorer: (i) can reasonably control the roads or tracks for safety; (ii) has the priority of use to carry out authorized exploration activities; and (iii) does not undertake any liability for the Ularaka Arabunna Association and native title claim group’s use of the roads or tracks (Art 10.6, 10.7).

• Transparency or confidentiality

  No party to the accepted exploration contract is allowed to make an announcement concerning the terms of the accepted exploration contract unless the announcement’s timing and content have been approved by every other party or is required by law (Art. 20.4). “Cultural confidence” means any cultural information, including information held in an Aboriginal record, the disclosure of which is restricted or forbidden by Aboriginal tradition (Art 1). The government and the explorer must keep confidential all cultural confidence of which they become aware (Art. 20.5(a)). The government, the native title claim group, the native title claimants, and Ularaka Arabunna Association must keep confidential all information about the exploration activities designated as confidential by the person who discloses it or is confidential by nature (Art. 20.5(b)).

• Other noteworthy clauses

  This exploration contract conditions document is annexed as Schedule 2 of the Arabunna Area Mineral Exploration Indigenous Land Use Agreement.