Summary of contract

• Negotiation, representation, and other relevant context

  The parties to the Indigenous Land Use Agreement are (i) Argyle Diamonds Ltd and Argyle Diamond Mines Pty Ltd (Argyle Diamonds); (ii) Kimberley Land Council Aboriginal Corporation; and traditional owners on behalf of (iii) Mandangala/Tiltuwam; (iv) Yunurr/Yalangga; (v) Neminuwarlin; (vi) Balaburr; (vii) Bilbidjing; (viii) Dundun; and (ix) other Miriwung, Gidja, Walarr and Malgnin people who have traditional rights in the agreement area, in West Australia. The Traditional Owners have traditional rights over the area where a diamond mine owned and operated by Argyle Diamonds is located. The intention of the parties is to provide a transparent basis for the relationship between the parties to continue for the life of the Argyle Diamond Mine (Recital C). The agreement recognizes the rights of the Traditional Owners (Art. 2.1). The agreement says that the Traditional Owners and Argyle Diamonds benefit from the continued diamond mine operations in the East Kimberley region (Art. 31). The agreement includes the traditional owners that were left out from previous agreements signed by Argyle with Aboriginal groups, and if all parties execute the agreement, it replaces all prior agreements (Arts. 4.1, 4.4).

• Governance, implementation, dispute resolution

  The agreement establishes that Argyle can stop paying monetary benefits if the Traditional Owners break the agreement. If the Traditional Owners are in breach of the agreement, Argyle may send a notice to the Traditional Owners requesting that the breach or default is remedied. The payments under the agreement can be suspended until the breach is remedied (Art. 11.1, 11.2). The Traditional Owners can send a notice to Argyle, claiming that a breach has not occurred (Art.11.4). If the dispute cannot be resolved by mediation, it may be referred to arbitration (Art. 11.6). If a dispute of any other type arises between two or more parties to the agreement, any party may give notice in writing to the other party setting out the details of the dispute, and the parties will use their best endeavors to resolve the dispute between themselves (Art. 17.1) .If the parties fail to resolve the dispute within 21 days after the notice, either party may refer the dispute to mediation by written notice to the other party (Art.17.2). The mediation will be conducted by an independent person appointed by agreement between the parties. If the parties cannot agree within 21 days, either party may request that the President of the Law Society appoint an independent mediator (Art. 17.3, 17.4). Each party will be equally liable for the costs of the mediator, up to a total cost of $20,000, and additional costs will be paid 75% by Argyle Diamonds and 25% by the Traditional Owners (Art. 17.5). Argyle Diamonds may transfer to another party the rights and interests under the agreement (Art. 13.1). If Argyle only transfers part of its interest, Argyle Diamonds will be liable for the performance of its remaining obligations (Art. 13.3). The Traditional Owners may hand-over the agreement to an Aboriginal corporation created by the Traditional Owners to hold the Traditional Owners’ Native Title Rights (Art. 13.5). The agreement can only be changed with the written agreement of Argyle Diamonds, the Traditional Owners, and Kimberley Land Council Aboriginal Corporation (Art. 14.2). Argyle Diamonds will apply to register the agreement in the National Native Title Register (Art. 12).

• Fiscal obligations: content

  Argyle Diamonds will make payments to local Aboriginal communities, specified senior members of particular Aboriginal communities, the charitable trust, and the special purpose trust. Argyle agrees to make annual payment to the following local Aboriginal communities, indexed in accordance with the Consumer Price Index: (a) Mandangala Community - $309,300; (b) Woolah Community - $116,610; (c) Warmun Community - $295,726; (d) Juwulinypany Community - $45,000; and (e) Crocodile Hole Community - $25,000. The annual sum will be deposited in a bank account indicated by the council of the relevant Aboriginal community (Art. 5.4, and-5.5.). Argyle Diamonds will also make an annual payment until mining activities have ceased, to specified senior members of particular Aboriginal communities or their beneficiaries if they have passed away. The individual payment sums are confidential. Argyle Diamonds will make the first payments directly to the senior members of the Aboriginal communities, and then, through a special purpose trust (Art. 6.1-6.8). Argyle will make annual payments into a charitable trust and a special purpose trust until 6 months after mining activities have ceased (Arts. 6.11, 6.25; Schedules 16, 19). Argyle will make annual payments to the trustees to cover the costs of the establishment, implementation, and administration of the trust, including hiring an executive officer for the charitable trust, from 2004 to 2008, in accordance with Schedule 16 (Art. 6.25; Schedule 16). Argyle Diamonds agrees to pay a decline bonus of $500,000 to the Traditional Owners if Argyle, with the cooperation of the Traditional Owners, built the mine excavation or ‘exploratory decline’ by 31 March 2005 (Art. 6.28; Schedule 4). If the decline bonus becomes due and payable, Argyle Diamonds agrees to pay: $300,000 to be allocated under the sustainability fund of the charitable trust; $100,000 to the Kimberley Land Council Aboriginal Association for the Miriuwung Native Title claimants; and $100,000 to the Kimberley Land Council Aboriginal Association for the Malarngowem Native Title claimants (Art. 6.28). The Traditional Owners will do all things to support Argyle’s activities, and Argyle Diamonds agrees to pay the Traditional Owners the reasonable costs of such support (Art. 3.10).

• Community development obligations: Other

  Argyle plans to surrender a grazing lease in the agreement area and apply for a replacement lease. If the State grants to Argyle Diamonds a replacement lease, Argyle will hold the land on trust for the benefit of the Traditional Owners. The Traditional Owners, Kimberley Land Council Aboriginal Corporation, and Argyle Diamonds will jointly seek to secure the recognition of Native Title Rights over the replacement lease (Arts. 7, and 8).

• Environmental and social protection

  Environmental obligations are contained in the management plan agreement signed by the Traditional Owners and Argyle Diamonds.

• Transparency or confidentiality

  The terms of the agreement are not subject to any confidentiality provisions (Art. 18.21). The genealogies of the Traditional Owners and the amount of money that Argyle Diamonds will pay to specified senior members of particular Aboriginal communities are confidential and not to be disclosed. The information could be disclosed if a court, mediator, arbitrator, Government agency, or the stock exchange requires it, or if the information is already in the public domain (Art. 18.22; Schedule 20).