Summary of contract

• Negotiation, representation, and other relevant context

  The parties to the agreement are the Dja Dja Wurrung people and the Minerals Council of Australia. The Dja Dja Wurrung people are represented by a group of native title signatories recognized by native title determination of the Federal Court (Recitals, Art. 2.2) The agreement binds the native title signatories and the other members of the Dja Dja Wurrung people (Art. 9). Minerals Council of Australia is a national organization that represents the interests of members of the resources industry. In Victoria, the Minerals Council of Australia is represented by the executive director of its Victorian division (Art. 2.4). The Dja Dja Wurrung and the Minerals Council acknowledge that they have had independent legal advice with respect to all aspects of the agreement (Art. 24). Each party will pay their own costs for the preparation, negotiation, and registration of the agreement (Art. 28). The Dja Dja Wurrung people and the Minerals Council of Australia set out the terms and conditions for the grant and use of the exploration license, which will bind the explorer as a party to the agreement (Art. 2.7 and Art. 2.9). The Dja Dja Wurrung people agree that the applicant to an exploration license may, upon signing a deed of assumption to become an explorer, exercise its rights and obligations under the exploration license subject to satisfying the land use conditions set out in the agreement. The Dja Dja Wurrung people agree that a breach of the agreement by any party does not nullify the consent of the community to the grant and use of the exploration license. The explorer must minimize interference with the Dja Dja Wurrung people’s use of the relevant area (Art. 2.3). The explorer is subject to the rights and obligations in the agreement to gain access to and conduct exploration (including low impact exploration) for minerals in the relevant area (Art. 3). The Dja Dja Wurrung people agree that they will not challenge the validity of any exploration license granted in accordance with the law, and will not affect any activity authorized by the exploration license (Art. 14). The explorer agrees to provide the benefits set out in the agreement as full compensation to the Dja Dja Wurrung people for any impact the grant or use of the exploration license has on any native title rights and interests of the Dja Dja Wurrung people. The Dja Dja Wurrung people agree that the benefits provided by the explorer are in full and final satisfaction of any liability the explorer may have to the Dja Dja Wurrung people for the effect of exploration (including low impact exploration) on their native title rights and interests. No further compensation is payable by the explorer to the Dja Dja Wurrung people for the effect of the grant and use of the exploration license (Art. 4). Schedule 1 describes the area and coordinates to which the agreement applies. Schedule 5 contains the model deed of assumption of rights and obligations of the agreement to be signed by an applicant to an exploration license. By signing the deed of assumption, the applicant acknowledges that she is legally bound by the agreement as if it were a contract between Dja Dja Wurrung people and the applicant (Schedule 5, Art. 3.2.3). The Dja Dja Wurrung people agree that an exploration license may be granted if the applicant executes a deed of assumption in the agreed form (Art. 2.7).

• Governance, implementation, dispute resolution

  The Dja Dja Wurrung people and the explorer may agree to establish a liaison committee. The liaison committee will establish meeting procedures and timeframes, review the progress of the exploration, make recommendations about the land use conditions or variations to the agreement, and maintain communication between the parties. The liaison committee will meet no less than 2 times per year, the meetings will be open to any member to the Dja Dja Wurrung who will be entitled to raise matters of concern to the member of the community, and the decisions of the committee will be taken by simple majority (Schedule 2, Art. 5). The explorer agrees to immediately advise the Dja Dja Wurrung people, the Minerals Council of Australia and Native Title Services Victoria Ltd when the exploration license has been granted (Art. 10.3). The Dja Dja Wurrung and the Minerals Council of Australia shall meet every 5 years to determine the need for a review of the agreement; the purpose of the review will be to ascertain whether the agreement needs to be amended (Art. 6.6). If a dispute arises, the parties will first hold discussions in good faith in an effort to resolve it. If the dispute is not resolved, the parties will attempt to resolve it by using a mediator, who is an independent expert and not an arbitrator. If the dispute is still not resolved, the dispute will be settled by an arbitrator, whose decision is binding upon the parties. If a binding arbitration decision has not been given the parties have the right to apply for any other order, relief or remedy available to them at law or in equity. The parties to the dispute will be required to pay an equal share of the mediator’s and arbitrator’s fees and expenses, unless the mediator or arbitrator directs otherwise (Art. 12). The Dja Dja Wurrung and the Minerals Council of Australia submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia (Art. 20.2). The explorer or the Minerals Council of Australia can assign, novate or transfer its rights and obligations under the agreement or the exploration license only to a person who agrees to execute a deed under which it is bound by the agreement as if it were a party to it (Art. 15). The parties agree to register the agreement with the Native Title Registrar according to the law (Art. 8.2).

• Fiscal obligations: content

  The explorer shall pay to a trust on behalf of all the members of the Dja Dja Wurrung people: (i) an annual exploration access fee of $1500 (plus goods and services tax (“GST”)) for access to Crown land in the relevant area, payable for the term of the exploration license; (ii) an exploration (diamond) drilling fee of $100 (plus GST) for each drill hole on Crown land in the relevant area; (iii) an exploration (reverse circulation) drilling fee of $50 (plus GST) for each drill hole on Crown land in the relevant area; (iv) an exploration (mechanical and hand operated) drilling fee of $20 (plus GST) for each drill hole on Crown land in the relevant area; and; (v) an exploration (costeaning, trenching and channelling) fee of $1 (plus GST) for each square metre on Crown land in the relevant area. These fees will be increased annually according to the Consumer Price Index rate (Schedule 2, Art. 1).

• Environmental and social protection

  The explorer shall not hinder, and will minimize interference with, the entry, occupation, and use of the exploration license area by members of the Dja Dja Wurrung people. (Schedule 2, Art. 2). The explorer agrees to conduct exploration (including low impact exploration) in accordance with the environmental guidelines for environmental management published by the department of primary industries of Victoria, and applicable law (Schedule 2, Art. 3). The Dja Dja Wurrung people have appointed a cultural heritage coordinator to act on their behalf with respect to cultural heritage management. The coordinator will nominate a monitor as the appropriate aboriginal person to deal with the explorer with respect to cultural heritage management procedures. If the monitor and the explorer agree, the explorer will engage a cultural heritage consultant to assist the monitor and the explorer to meet the cultural heritage obligations under the agreement and applicable laws (Schedule 3, Art. 4). The following activities undertaken by the monitor will be paid by the explorer: (i) inspection of a draft work plan area or low impact exploration plan; (ii) on-site monitoring of exploration license works which involve clearing or excavation works; and (iii) attendance to inspect and advise on Aboriginal objects or suspected Aboriginal remains encountered by the explorer. The explorer is required to pay for those activities and for a cultural heritage report that is prepared daily by the monitor during any inspection, monitoring or other on-site attendance. The explorer is required to pay to the cultural heritage coordinator for an initial one-off cultural heritage induction program for the explorer and relevant contractor personnel, $450 (plus GST). These amounts will be increased annually according to the Consumer Price Index rate. The explorer must also pay all reasonable travel and accommodation expenses associated with the monitor’s activities listed above (Schedule 3, Art. 12). Unless the works to be carried out pursuant to the exploration license do not disturb the ground or will be carried out on non-Crown land, the explorer will provide the monitor with a copy of the draft work plan and, where applicable, the low impact exploration plan. The monitor will inspect the proposed works to determine any impact on any Aboriginal place, object or human remains. If the monitor determines that there will be an impact, the monitor and the explorer will seek to agree on alterations to the proposed works. If the explorer cannot agree to the alterations requested because of significantly greater cost or inconvenience, the explorer will conduct its license works, subject to the Heritage Acts and any other applicable laws, taking into consideration the monitor’s request for alteration (Schedule 3, Art. 5). The explorer will notify the cultural heritage coordinator at least 7 days prior to the commencement of exploration license works (Schedule 3, Art. 6). If the explorer finds an object suspected to be Aboriginal, the explorer will report it to the authorities (Aboriginal Affairs Victoria), stop working in the immediate area and notify the coordinator and the monitor, who will determine if the object is Aboriginal. If the monitor considers that the object is or may be Aboriginal, the exploration license works may be able to proceed, unless there is a material risk that the object may be damaged, 100 meters distant from the object or less if agreed by the monitor. Subject to applicable laws, if an appropriate course of action cannot be agreed between the monitor and the explorer, the matter will be referred for dispute resolution in accordance with the agreement (Schedule 3, Art. 7). If the explorer discovers human remains, it will report the discovery to the police, the monitor, and the coordinator, and stop working in the immediate area. If the police determine that the discovery is human remains which are or are suspected to be Aboriginal remains, and the police give its consent, the monitor may also examine the object. The monitor may request that the explorer cease the exploration works at and around the location of the remains where no significantly greater cost or inconvenience is likely to be suffered by the explorer (Schedule 3, Art. 8). The explorer will ensure that its employees and contractors are appropriately instructed to ensure compliance with applicable cultural heritage legislation and to foster good relationships with members of the Dja Dja Wurrung people (Schedule 3, Art. 10). If the Dja Dja Wurrung people, the monitor, the coordinator or the native title signatories fail to comply with the timeframes established in the agreement for the cultural heritage management procedures, the explorer may proceed at its own risk with the exploration works (Schedule 3, Art. 11).

• Transparency or confidentiality

  If a party provides information to the other party and requests confidentiality, such information will be treated as confidential. Information given to the explorer concerning Aboriginal places, Aboriginal objects or Aboriginal human remains that is identified by the monitor as being confidential information must be treated as such (Art. 13.1). The Dja Dja Wurrung people and the Minerals Council of Australia agree not to disclose confidential information except: (i) to their officers, employees, members, directors, servants, agents, contractors and subcontractors whose duties require such disclosure; (ii) to their professional advisers; (iii) to the extent necessary to comply with applicable laws and the rules of the Australian Stock Exchange; (iv) where disclosure is necessary to perform obligations and enforce rights under the agreement; (v) to the extent the information is already in the public domain; or (vi) with the prior written approval of the other parties (Art. 13.2). The Dja Dja Wurrung people and the Minerals Council of Australia must take all steps reasonably necessary to ensure that confidential information is known only to persons who reasonably require knowledge in the course of their duties or functions. The parties must also ensure that any person to whom they intend to disclose confidential information gives an undertaking to maintain the confidentiality of the information or is otherwise under a statutory, professional or contractual duty to keep the information confidential (Art. 13.3). After the termination of the agreement, the Dja Dja Wurrung people and the Minerals Council of Australia shall continue to treat as confidential the information obtained under the agreement (Art. 13.4).