Published on March 17, 2014
ostering Native Title and Indigenous Relation
James Price Point –what did we learn?
Content Land Access Native Title rights Best practice agreement making • Homework • Protocol • Process • Benefits • Implementation Trends
Land Access Land use frequently requires approvals under the Aboriginal Heritage Act and the Native Title Act. Generally a Cultural Heritage Agreement sets out how Aboriginal sites will be identified and protected and disputes resolved The NT Act requires consultation with people who hold native title rights over the land involved and will generally result in a Land Access and Exploration/Production Agreement
Native title rights A bundle of inalienable rights Rights generally include: • Land access • Involvement in land use decisions • Rights to traditional resources – food/water/ochre • Rights to protect significant areas/sites • Acknowledgment as custodians • Rights MAY include living rights and access control Do Not legally include minerals/hydrocarbons/water
Legalities 1. Legislation I. Mining Act II. Aboriginal Heritage Act III. Native Title Act IV. Petroleum and Geothermal Energy Act V. Public Works Act – rail and ports 1. Native title tenure: 1. Claimed 2. Determined non-exclusive 3. Determined exclusive 4. Reserves and Aboriginal freehold
Court guidance Valuable rights NTA - just terms for any loss or impairment Courts recognize special attachment Can exceed freehold values Courts have valued hunting rights Courts or government will in time value other aspects (the assessment process at present is too arbitrary to be permanent)
Best practice • Sustainable • Defendable • Intra and Inter generational • Compliant with International Human rights • Informed and trained participants • Effective and open communication • Ministers have agreed on: • Interest based approach • Good faith • Flexibility • Fair
Fair Fair negotiation process Recognition of a right to be involved Respect and courtesy Consistent management Everyone has a right to a minimum entitlement Equality of opportunity in the rewards Reward for effort - no free kicks Sharing of pain and gains Priority rights to existing users
Best practice approach 1. Be clear on your situation 2. Understand the community/social aspects 3. Attempt to understand existing agreements 4. Assess strengths and weaknesses 5. Consider RTN principles 6. Benchmark assessment 7. Develop a balanced package
Your situation Leases needed Access Infrastructure
Your Traditional Owner Community
Your Traditional Owners Ngarla BHPB Goldsworthy Kariyarra BHPB, Atlas, FMG Ngarluma/Yindjibarndi Rio, FMG, Atlas Kuruma Marthudunera Rio, Thalanyji Chevron, BHPB Petroleum Gnulli New Standard Puutu Kunti Kurrama Pinikurra Rio, Paulsen’s Eastern Guruma Rio, Brockman, Banjima BHPB, Rio, FMG Yinhawangka Rio Nyiyaparli BHPB, Rio, FMG, Cons. Coobina Palyku BHPB, FMG Njamal Wedgetail, Woodie-Woodie Warrarn Nyangumarta Martu and Ngurrara Newcrest Thudgari Jurruru Ngurrara Understand their situation – be prepared to invest in this
Benchmark other agreements 1. Commodity (perceived profitability) 2. Location (community perceptions) 3. Other companies Uranium Oil and gas Diamonds Gold Iron ore Base metals Industrial Infrastructure Northern Territory Kimberley Pilbara Mid West, SA, Goldfields South West, Qld, NSW, Vic
RTN principles 1. Land area used to be minimised 2. Exclusion areas notified at beginning 3. NT restored in full wherever possible 4. Land to be remediated to best practice 5. Involvement in heritage clearance and monitoring during construction 6. Continued right of land access except when unsafe 7. Liaison mechanism 8. Cultural heritage training for all on-site employees 9. Training fund 10. Priority employment rights 11. Priority business opportunities
Types of agreements Mining – exploration and production, project and claim wide Oil and gas – exploration, production, conjunctive, regional, project and claim Pipelines Infrastructure – ports, rail, roads, water supplies Land agreements Regional agreements.
A package Community and company determine slices Health, education, recreation, art, music, language, culture
Equity? Suitable for a very small number of groups Requires corporate decision structure - separation of director responsibilities from community Can require large borrowings Free carried must be diluted over time Equity acquisition and sale considerations Lack of relationship to land activity Benefits only flow on sale Conflict with other communities Highly unlikely with any worthwhile companies Good for my business
Trends More sophisticated payment structures – floors/ceilings, indexation, reviews Greater emphasis on legal provisions Need for best practice learning Some interest in community profiling More comprehensive employment and contract provisions Consideration of equity Government concerns on the rise More aggressive negotiation – great in short term
A good process and agreement Clear understanding of the process and timelines (Negotiation Protocol) Agreed budgets and meeting locations Defined confidentiality constraints Defined communication channels Clear explanation of land impact, timelines, jobs and contract opportunities Records of all decisions and confirmation at subsequent meetings Industry benchmarks on other projects Consideration of all options Response on all issues by both parties Time to consult with all stakeholders Availability of expert advisors on contentious issues Transparent and known authorisation process Dispute resolution process Consideration of the structures required for successful implementation Funding and support for ongoing relationships and monitoring
Benchmarks – oil and gas
Large Oil and Gas Signature $25,000 to $500,000 Grant of all approvals $25,000 to $500,000 cpi Grant of all tenure $25,000 to $300,000 cpi Business incubation $25,000 pa to $400,000 cpi pa Start construction $25,000 to $2,000,000 cpi First gas $25,000 to $10,000,000 cpi Production payments or land rental Up to 1% of sales, land up to $3,500,000 pa Liaison officer Liaison committee Education fund $25,000 to $1,250,000 pa Traineeships $50,000 to $1,300,000 pa Cultural Heritage project Contract preference Best endeveavours at least Employment: Monitors during construction Operating phase targets
Project Project Project Rio Tinto – 7 claims Havilah Resources Gellard phosphate BHP Billiton 4 claims Murchison Metals - Weld Range Wedgetail Gold FMG – 3 claims Ngarluma Roebourne FMG Glacier ValleyHancock – 4 claims Integra Mining Hancock Pilbara railAquila/API – 3 claims Saracen Gold Jabiru Benambra Iluka Mildura Atlas Abydos Giralia iron ore Mount Gibson Iron Hancock Balfour Downs North West InfrastructureInpex Browse Basin Telfer pipeline Brockman ResourcesOfficer Basin Energy Ngarluma Aurox Hazelwood TungstenJack Hills Yalgoo SKA project CBH Sulphur SpringsHancock Balfour Downs Kimberley Diamonds Ellendale Iluka Eucla Basin Wilga Coal mine Wiluna West iron Hancock Roy Hills Phanerozoic nickel Galaxy Ravensthorpe Latji Latji regional IOH Phil’s Creek Noongar single claim Alpha Coal Brockman Resources Crosslands Jack Hills Pangaea – 9 claimsRadio Telescope SKA Atlas Pardoo Gorgon pipeline Olympic Dam Kingsway oil IOH Iron Valley Ravensthorpe Nickel Robertson Range iron Kimberley Iron OreVital Metals Cairn Hill iron ore Sandfire DoolgunnaProminent Hill Wilcherry Hill Fairstar Iron ore Spinifex Ridge BHPB Macedon gas Windimurra vanadiumBeta Nutrition Karara magnetite OPR rail and port Tiwest Dongara Oakajee Port and Rail Moly Metals iron oreChevron Wheatstone Straits Torrens copper New Standard Oil GnulliPerilya Zinc James Price Point LNG Weld Range chromitesYannarie Salt New Standard Energy Rodinia Officer Basin oilBaldivis Quarry Flinders iron Silver Lake Kintyre uranium Onslow Resources Central Petroleum Telfer gold Merlinleigh oil and gas Buru Energy
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