137mmsd Au Indigenous PDF

Agr eement s bet w een Mi ni ng Compani es and
I ndi genous Communi t i es

A Repor t t o t he
Aust r al i an Mi ner al s and Ener gy Envi r onment
Foundat i on
December 2001

Prepared by

Indigenous Support Services
ABN 34 674 752 674

and

ACN 058 284 521

CANBERRA OFFI CE SYDNEY OFFI CE BRI SBANE OFFI CE MELBOURNE OFFI CE

PERTH OFFI CE
ACIL House
103-105 Northbourne Avenue
Canberra ACT 2601

Level 2
181 Miller Street
North Sydney NSW 2060
Level 15
127 Creek Street
Brisbane QLD 4000
Level 6
224-236 Queen Street
Melbourne VIC 3000
Level 29
221 St Georges Terrace
Perth WA 6000
telephone +61 2 6249 8055
facsimile +61 2 6257 4170
telephone +61 2 9957 6363
facsimile +61 2 9957 1805
telephone +61 7 3236 3966
facsimile +61 7 3236 3499
telephone +61 3 9600 3144
facsimile +61 3 9600 3155
telephone +61 8 9480 3762
facsimile +61 8 9481 3177

Economics Policy Strategy

2 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

Copyright in this document is and remains the property of ACIL Consulting Pty Ltd (ACIL) and Indigenous Support
Services (ISS).

AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION i

Contents
Ex ec ut i ve summar y Ex ec ut i ve summar y Ex ec ut i ve summar y Ex ec ut i ve summar y v vv v
Negotiation phase good practice vi
Content of agreements vii
Implementation good practice vii
1. 1. 1. 1. I nt r oduc t i on I nt r oduc t i on I nt r oduc t i on I nt r oduc t i on 9 99 9
1.1 Purpose of research/objectives 9
1.2 Methodology and approach taken 10
1.3 Structure of the report 10
2. 2. 2. 2. The nat ur e and c har ac t er i st i c s of The nat ur e and c har ac t er i st i c s of The nat ur e and c har ac t er i st i c s of The nat ur e and c har ac t er i st i c s of
agr eement s made agr eement s made agr eement s made agr eement s made 12 12 12 12
2.1 Features of agreements 13
2.2 Recent developments in agreement making 18
2.2.1 Range of current agreements 19
2.2.2 Mining agreements 19
2.2.3 Infrastructure agreements 20
2.2.4 Exploration agreements and protocols 20
2.2.5 Heritage protection agreements 23
2.2.6 Conjunctive and disjunctive agreements 24
3. 3. 3. 3. Case st udi es and ot her i nf or mat i on Case st udi es and ot her i nf or mat i on Case st udi es and ot her i nf or mat i on Case st udi es and ot her i nf or mat i on 25 25 25 25
3.1 Western Australi a 26
3.1.1 The Yandi Land Use Agreement 27
3.1.2 Argyle Diamond Mine MOU with the Kimberley
Land Council 31
3.1.3 BHP Area C Agreement 32
3.2 Northern Territory -Tanami agreements 33
3.3 South Austral ia WMC Ol ympic Dam
agreements 36
3.4 Queensland - Western Cape Communities
Co-existence Agreement 38
3.5 New South Wales - Adelong Agreement 42
3.6 Additional information 44
3.6.1 Ngarda Civil and Mining 44
3.6.2 Model agreements 46
ii AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

4. 4. 4. 4. Good pr ac t i c e Good pr ac t i c e Good pr ac t i c e Good pr ac t i c e 48 48 48 48
4.1 Process - Starting out 49
4.2 Native Title Representative Bodies 49
4.2.1 Facilitation, assistance and certification 50
4.2.2 Good practice NTRBs 52
4.3 Consultation strategi es 54
4.3.1 Community meetings 54
4.4 The importance of corporate culture 57
4.5 Negotiation methods 58
4.5.1 Native title claimants 58
4.5.2 Negotiation teams and training 59
4.5.3 Subsidiary agreements 60
4.6 Impact of the development 61
4.7 Appropriate financial support 62
5. 5. 5. 5. Cont ent Cont ent Cont ent Cont ent 64 64 64 64
5.1 Employment, education and training 64
5.1.1 Education 65
5.2 Compensation 67
5.3 Royalties or equity 68
5.4 Joint business ventures 69
5.5 Heritage protection 69
6. 6. 6. 6. I mpl ement at i on I mpl ement at i on I mpl ement at i on I mpl ement at i on 70 70 70 70
6.1 Governance Structures 71
6.1.1 Culture 71
6.2 Representative structures 72
6.2.1 Longer terms for representatives 73
At t ac hment A1. At t ac hment A1. At t ac hment A1. At t ac hment A1. Nat i ve Ti t l e Ac t p Nat i ve Ti t l e Ac t p Nat i ve Ti t l e Ac t p Nat i ve Ti t l e Ac t pr ovi si ons r ovi si ons r ovi si ons r ovi si ons
and I ndi genous Land Use and I ndi genous Land Use and I ndi genous Land Use and I ndi genous Land Use
Agr eement s Agr eement s Agr eement s Agr eement s A1 A1 A1 A1- -- -1 11 1
A1.1 Native Title Act 1993; provisions relating
to negotiation and agreements A1-1
A1.1.1 The future act regime and the right to
negotiate A1-1
A1.2 Indigenous Land Use Agreements A1-3
A1.2.2 The potential use of ILUAs A1-5
A1.2.3 Issues in the use of ILUAs A1-5
At t ac hment A2. At t ac hment A2. At t ac hment A2. At t ac hment A2. Sur vey of Mi ni ng Sur vey of Mi ni ng Sur vey of Mi ni ng Sur vey of Mi ni ng Compani es Compani es Compani es Compani es
Quest i onnai r e Quest i onnai r e Quest i onnai r e Quest i onnai r e A2 A2 A2 A2- -- -1 11 1
At t ac hment A3. At t ac hment A3. At t ac hment A3. At t ac hment A3. Usef ul I nt er net w ebsi t es Usef ul I nt er net w ebsi t es Usef ul I nt er net w ebsi t es Usef ul I nt er net w ebsi t es A3 A3 A3 A3- -- -1 11 1
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION iii

At t ac hment A4. At t ac hment A4. At t ac hment A4. At t ac hment A4. Nor t her n Land Counc i l Nor t her n Land Counc i l Nor t her n Land Counc i l Nor t her n Land Counc i l
Ex pl or at i on Li c enc e Ex pl or at i on Li c enc e Ex pl or at i on Li c enc e Ex pl or at i on Li c enc e
Agr eement s Agr eement s Agr eement s Agr eement s A4 A4 A4 A4- -- -1 11 1
At t ac hment A5. At t ac hment A5. At t ac hment A5. At t ac hment A5. Nat i ve Ti Nat i ve Ti Nat i ve Ti Nat i ve Ti t l e Repr esent at i ve t l e Repr esent at i ve t l e Repr esent at i ve t l e Repr esent at i ve
Body f unc t i ons under t he Body f unc t i ons under t he Body f unc t i ons under t he Body f unc t i ons under t he
Nat i ve Ti t l e Ac t Nat i ve Ti t l e Ac t Nat i ve Ti t l e Ac t Nat i ve Ti t l e Ac t A5 A5 A5 A5- -- -1 11 1

Tabl es
Table 1. Geographic location of agreements 14
Table 2. Companies making agreements 15
Table 3. Agreements by type 16
Table 4. Combinations of types of agreements 16
Table 5. Types of provisions most commonly found in
agreements 17

Li st of ac r onyms
ACIL ACIL Consulting Pty Ltd
AGL Australian Gas Light Company
ALRM Aboriginal Legal Rights Movement
ALRA(NT) Aboriginal Land Rights (Northern Territory) Act
AMEEF Australian Minerals and Energy Environment Foundation
ATSIC Aboriginal and Torres Strait Islander Commission
CDC Commercial Development Corporation
CDEP Community Development and Employment Program
CEO Chief Executive Officer
CLC Central Land Council
CYLC Cape York Land Council
HWE Henry Walker Eltin
IBN Innawonga Bunjima Niapaili
ILUA Indigenous Land Use Agreement
ISS Indigenous Support Services
KLC Kimberley Land Council
i v AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

MIB Martu Idja Banyjima
MMSD Mining, Minerals and Sustainable Development
MOU Memorandum of Understanding
NCM Ngarda Civil & Mining
NLC Northern Land Council
NNTT National Native Title Tribunal
NSW New South Wales
NSWLC New South Wales Land Council
NT Northern Territory
NTA Native Title Act (Commonwealth) 1995
NTRB Native Title Representative Body
SA South Australia
WA Western Australia
WMC Western Mining Corporation Pty Ltd
YLSC Yamatji Land and Sea Council

AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION v

Ex ec ut i ve summar y
The Australian Minerals and Energy Environment Foundation engaged
ACIL Consulting and Indigenous Support Services in September 2001 to
undertake a project to identify best practice in agreement making
between mining companies and Indigenous people. This project forms a
part of the Australian Mining, Minerals and Sustainable Development
(MMSD) initiative, which is a subset of the global MMSD process.
The report was intended to
Review a small number of case studies to identify knowledge and

experience in negotiating agreements between mining companies and
Indigenous communities;
Identify key issues, concerns and priorities based on the perspective

and practical experience both of industry and of Indigenous people,
and
Identify examples of good practice and practical steps to facilitate

negotiation and implementation of agreements that respect the rights
and interests of Indigenous people and promote an equitable
distribution of benefits between the industry and Indigenous
communities.
Our approach has been to address the above and also produce some
practical guidance for mining companies and Indigenous communities
seeking to produce constructive, mutually beneficial agreements. We
emphasise that this report is necessarily only a start since it is based on a
small number of case studies, together with analyses of the limited data
collected on approximately 140 agreements identified to date. Those case
studies and the agreements database, nevertheless, have been informed by
the knowledge of the ACIL/ISS consulting team, which has extensive
experience across the mining industry and Indigenous matters including
community development and agreement making.
Without a more substantial study than this, no report can justly claim to
have identified all the elements of current best practice. What is identified
are the types of approaches and considerations that parties to agreements
should consider, since they amount at least to good, if not best, practice.
The term good practice acknowledges that in any field of endeavour
there will be a process of developing increasingly effective work
practices which contribute to defined desired outcomes. Understanding of
what constitutes good practice will change over time in response to
insights from research, evaluation and experience. In many cases, the
shared understanding of good practice will be ahead of results derived
from formal research, as people actually engaged in the practical business
vi AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

of making agreements exchange their experiences of what has worked
and what has not.
This report encompasses lessons drawn from the case studies, combined
with the knowledge and understanding of the consultancy team. It focuses
on the three key processes involved in negotiating, determining content
and implementing agreements. The report is, therefore, directed at
responding to such issues as: How do you go about consulting if you are a
mining company or an Indigenous community? What governs the
content of agreements, and how do you determine what is reasonable
given the specifics of the project involved? How do you ensure that hard-
won agreement provisions do not disappear once the hype of reaching
agreement has died down? What are the points on which these three
processes can falter, and how can they be avoided?
The good practices we consider to be worth following include:
Negotiation phase good practice
Engage Native Title Representative Bodies (NTRBs) early in the

process. Changes to the roles and functions of NTRBs and their
generally changing approaches to negotiations and agreements make
them key players in dealing with Indigenous people and successfully
concluding agreements. Seek the advice and assistance of NTRBs in
planning and undertaking negotiations.
Ensure that there is full company commitment up to CEO and Board

level to the negotiations.
Negotiations should be aimed at finding common ground and

mutually beneficial solutions to what are often challenges in
common. Win-lose approaches are not appropriate.
Ensure that negotiations are being held with the right people. Seek
advice to ensure this happens.
Provide clear information on the proposed development and its

impact on Indigenous stakeholders to give them a clear idea of how
their rights and interests might possibly be enhanced or diminished.
Consultation strategies should:

Be appropriate to the scale and geographical extent of the project;
Open up clear and effective channels of communication;
Take into account social, cultural, economic and geographic
circumstances of the Indigenous stakeholders;
Plan for and use timeframes that take into account the culture and
needs of the Indigenous parties, rather than being driven solely
by the projects critical path.
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION vii

Allocate adequate resources to negotiations, recognising that

Indigenous parties will generally need company funding to
participate fully and appropriately.
Use well-trained negotiators and maintain the same team until

negotiations are completed.
Content of agreements
Employment has a high priority among Indigenous people, with

training a necessary pre-requisite. While recognising that Indigenous
employment schemes have had limited success to date, they have an
integral role in most agreements.
Provision of education is primarily the responsibility of government,

but agreements can play a role in improving outcomes through
programs to encourage school attendance and for scholarship support
for upper secondary and tertiary education.
Compensation arrangements should be designed carefully:

The right people must be identified
Investment and distribution of funds must be responsibly and well
managed. A trust structure is a good mechanism; but appropriate
training for trustees is a must.
Equity arrangements in mining ventures and/or other joint business

ventures can lead to much better community support and
understanding, as well as commitment to the project.
Protection of heritage is very important to Indigenous people and

mechanisms to achieve this in culturally appropriate ways need to be
included in agreements.
Implementation good practice
As much attention should be given to implementation as to the

negotiation process and the agreements content. Implementation can
dictate the ultimate success or shortfall of an agreement.
Coordinating committees to meet periodically to oversight

implementation of agreements should be put in place. Where
resources allow, consideration should be given to employing a
coordinator (this may be able to be done regionally for several
smaller agreements).
Governance structures for such committees, trusts or business

ventures should be appropriate to communities:
They should be appropriate to the situation of the Indigenous
parties (eg urban, remote regional), and
They should be culturally, ethnographically and demographically
representative.
viii AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

Indigenous representatives on committees and boards should be

appointed for terms of sufficient length to enable experience to
develop; and they should have, or be trained in the skills required to
serve on these bodies.
Each of these recommended good practices, as well as others are covered
in the body of the report, together with descriptions of the case studies
and the range of data collected on previous agreements.
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION 9

1. I nt r oduc t i on
The Australian Minerals and Energy Environment Foundation (AMEEF)
engaged ACIL Consulting and Indigenous Support Services in September
2001 to undertake a project to identify best practice in agreement
making between mining companies and Indigenous people. This project
forms a part of the Australian Mining, Minerals and Sustainable
Development (MMSD) initiative, which is a subset of the global MMSD
process.
ACIL is an established consulting firm providing specialist services in
economics, public policy and business strategy development. ACIL has
won a reputation for innovative, market-oriented solutions and for
contributing to constructive policy debate. Clients include major
companies and industry associations in the mining, petroleum, electricity
and gas industries as well as large energy users and government business
agencies and policy departments.
Indigenous Support Services (ISS) provides policy, planning and project
management expertise and experience in working with a diverse range of
Indigenous communities. All members of ISS have substantial
experience consulting on, negotiating and implementing resource
agreements on behalf of native title parties. Two of the three-member
team are Indigenous people with legal qualifications, and have a unique
blend of skills that are invaluable in projects such as this.
1.1 Purpose of research/objecti ves
AMEEF has stated in the terms of reference for the project that the report
should review a small number of case studies to identify knowledge and
experience in establishing agreements between mining companies and
Indigenous communities. The report should identify key issues, concerns
and priorities based on the perspectives and practical experience both of
industry and of Indigenous people. It should identify examples of good
practice and suggest practical steps to facilitate negotiation and
implementation of agreements that respect the rights and interests of
Indigenous people and promote an equitable distribution of benefits
between the industry and Indigenous communities.
The study is briefly to review the development of mining company -
Indigenous community agreements, experience gained, emerging trends
and changing attitudes, and gaps in experience and performance in this
area. It is not a guide to the Native Title Act (NTA) and nothing in this
report should be construed as legal advice. However, information on the
main relevant provisions of the amended Act, including ILUAs, is
included in Attachment A1.

Objectives
The report ultimately aims to identify and emphasise elements of good
practice that the industry and Indigenous communities can use to reach
and implement future agreements. This is the core driver in undertaking
the project. The aim is to provide Indigenous communities and
companies alike with a useful and practical way of learning from the
successes and mistakes of others, and thereby assist in putting together
successful and mutually beneficial agreements.
1.2 Methodology and approach taken
Given the budget and time restrictions, the study was limited to the
following:
A literature search of data and research on agreements to develop a

methodological framework for analysing mining agreements for their
best practice;
Preparation and presentation at the MMSD Brisbane conference in

September 2001 and distribution to stakeholders of a discussion
paper and presentation setting out the major issues and methodology
for the project, and presenting to the Melbourne MMSD conference
in December 2001;
Initiating the process of compiling a comprehensive database of

agreements. A survey of mining companies was undertaken through
industry associations and of native title representative bodies
(NTRBs) to gather basic data on agreements between companies and
Indigenous communities. The aim was to categorise the types of
agreements, identify their basic history and content, and
Undertaking a handful of case studies involving detailed (mostly

face-to-face, but also telephone) interviews with companies and
Indigenous parties to specific agreements, selected from Western
Australia, Queensland, New South Wales, South Australia and the
Northern Territory.
1.3 Structure of the report
In assessing best practice in the development of mining agreements, this
paper does not dwell on content so much as the process issues that may
arise while negotiating, determining the content of and implementing
agreements. Attention to process is fundamental to reaching successful
agreements; even the best and most comprehensive agreements will
flounder if critical issues such as trust and respect for each parties values
and culture are not established early. This is not to downplay the
significance of content, and this paper identifies key issues that are
commonly the subject of mining agreements. However, a detailed

assessment of content is a major task, given the number and variety of
relevant agreements in Australia and overseas
1
. Recommendations on
content and wording would undoubtedly be useful to parties seeking to
negotiate agreements, but this should be the subject of detailed (including
legal) analysis, and the development through such a process of model
agreements.
The structure of this report is as follows:
Chapter 2 provides a description of recent developments in

agreement making, including an assessment of data from the survey.
This includes descriptions of the characteristics and content of
agreements. A copy of the general questionnaire completed by
companies, and with minor modifications, NTRBs, is provided in
Attachment A2;
A synthesis of what the case studies revealed in terms of experience,

concerns and priorities is presented in Chapter 3, together with
additional information from the consultation processes and the
literature search, and
Finally, Chapters 4, 5 and 6 present a distillation of good practices

and recommendations on practical strategies for the processes of
negotiating, determining content of and implementing long lasting
beneficial agreements.

1
International experience is also useful in helping to identify the potential scope of agreements, good practice principles, and a range of
mechanisms to facilitate ongoing implementation.

2. The nat ur e and c har ac t er i st i c s of
agr eement s made
This study focussed initially on the terms of reference: define the broad
scope and character of agreements. We have used a range of sources
to construct a profile of some previous agreements. We believed it would
be useful to start to develop a database of agreements between mining
companies and Indigenous people, as well as providing more complete,
detailed information on a select few agreements.
Compiling a database of agreements has been central to undertaking this
study in a fashion consistent with the aspirations expressed in the terms of
reference. We have searched current databases on agreements (such as
they are), including one previously compiled by ACIL, drawn from the
extensive experience of ISS consultants, and have used data accessible
from other sources
2
.
The survey was undertaken by writing to all state minerals
councils/chambers, the Minerals Council of Australia and NTRBs. We
sought mining association cooperation in forwarding (electronically or by
letter or fax) to their members, while to assess the views of native title
claimants the questionnaire at Attachment A2 was used, seeking
information on past and current agreements. NTRBs were asked to
respond to the questionnaire directly.
Detailed face-to-face and telephone interviews were undertaken with
companies and Indigenous communities involved in the case studies. We
record our appreciation of the cooperation we received from Indigenous
communities, minerals councils/chambers, individual mining companies
and NTRBs in compiling the database and undertaking the case studies.
The range of information included the most basic (such as the parties
involved, a broad description of the agreement and when it became
operative), as well as more detailed information on matters such as
experience with negotiations, the type of agreement negotiated and key
provisions.
In terms of confidentiality, only one respondent indicated that the
information provided needed to remain confidential. That confidentiality
has been protected.
The database is by no means complete; indeed it is simply a start.
However, it forms the basis for an informative database of potential value

2
While the National Native Title Tribunal (NNTT) does have a database of Indigenous Land Use Agreements, both registered and in the
process of being registered, legislative provisions appear to preclude publication of anything other than the scantiest of data available to
the public. There are no other public sources available indicating the numbers or characteristics of agreements made to date.

both to Indigenous and mining stakeholders, and can be used to develop
communications and information flow between people with varying
experience in negotiating agreements. There is now a large body of
Indigenous and industry experience and expertise to draw on, and it
would be a shame to keep reinventing the wheel as far as mining
agreements are concerned.
A database of agreements can be used for the dual purpose of accessing
previous agreements for information on content and form, and to put
people in contact so as to share information about the process of
negotiating effective agreements and associated matters. The content of
agreements, including implementation clauses, is of course vital and
much can be learnt from previous agreements in this area.
We have attempted to obtain data on as wide a range of agreements as
possible, given the time and budget restrictions. The database provides
evidence as to the numbers and range of current agreements, where they
are occurring, their types and some of their key provisions. There is also
description of the roles of NTRBs and governments in negotiations.
The database of agreements should be further developed before it is made
available as a resource to Indigenous, mining and other interested
parties
3
. Eventually, it may be appropriate for a comprehensive and
publicly accessible database on agreements to be managed and
maintained by an organisation such as the NNTT.
2.1 Features of agreements
Of the approximately 140 agreements on the database, see Table 1 and
Table 2, all but 4 were concluded after 1994, with the numbers spread
reasonably evenly over the following years. Western Australia has the
largest number of agreements with 45, followed by the NT and
Queensland, each with more than 25 agreements. There were fewer
agreements in the other States, reflecting their size, comparative
prospectivity and history of land tenure, among other things. For those
unfamiliar with Australias geography and state/territory boundaries, the
following map should assist to understand where agreements are located:

3
Following additional work, it is intended that the database will be accessible on ACILs website at www.acilconsulting.com.au.
Interested organisations may choose to fund its expansion and ongoing maintenance to become a reference tool for all stakeholders in
agreement making.

Figure 1. Map of Australia

Source: http://www.auslig.gov.au/facts/map.htm
Table 1. Geographic location of agreements
Year agreed State/Territory
NSW Victoria Queensland SA WA NT Total
Before 1995 0 0 2 0 0 2 4
1995 1 0 0 1 3 11 16
1996 0 0 0 1 5 3 9
1997 3 1 4 4 7 3 22
1998 1 0 4 6 11 6 28
1999 2 1 3 3 9 4 22
2000 3 2 4 0 5 3 17
2001 7 0 9 4 5 3 27
Total 17 4 26 19 45 35 146
Note: The total is overstated since there are a handful of multi-state/territory agreements. Table 2 provides the actual number
of agreements on the database.
Rio Tinto and Normandy have been prominent in negotiating agreements
with Indigenous parties. As can be seen from Table 2, between them,

these two companies have made 68 agreements with Indigenous
communities or organisations, Newcrest, Sons of Gwalia and Peregrine
have 4 or 5 agreements each, with BHP Billiton, Iluka and Minotaur 3
each. The remaining 44 agreements comprise companies that have 1 or 2
agreements each; we have not been able to ascertain which companies are
party to 11 of these.
Table 2. Companies making agreements
Company Number of agreements Percentage
Rio Tinto 39 28%
Normandy 29 21%
Newcrest 5 4%
Sons of Gwalia 4 3%
Peregrine 4 3%
BHP Billiton 3 2%
Iluka 3 2%
Minotaur 3 2%
2 agreements each 6 4%
Single agreements 33 23%
Unknown parties 11 8%
TOTAL 140 100%
The database gives an indication of the volume, variety and type of
agreements made in the last 20 years between mining and Indigenous
interests. The database records 140 separate agreements ranging from
single types such as agreements made for exploration purposes alone, to
multi-purpose agreements covering extensive combinations. Table 3
shows the make up of agreements recorded on the database, with the most
frequently used types involving exploration, cultural heritage and mining.

Table 3. Agreements by type
Type of agreement Number Percentage
Exploration 60 25%
Mining 35 15%
Exploration and mining (conjunctive) 20 8%
Native title 25 11%
Cultural heritage 51 22%
Statutory 11 5%
Indigenous Land Use Agreement 16 7%
Others 18 8%
Total 236 100%
Most agreements are combinations of the different types. However, as
can be seen from Table 4, a considerable number of agreements, just over
a quarter, are devoted to exploration or mining rather than any
combination. That is, for example, while there are 60 agreements that
include provisions for exploration, of these, 23 are directed solely at
exploration.
Table 4. Combinations of types of agreements
Combinations of types Number Percentage
Exploration 23 16%
Exploration/cultural heritage/native title 26 19%
ILUAs alone or in combination with other
types 16 11%
Conjunctive 7 5%
Conjunctive/cultural heritage/or native title 20 14%
Mining/native title/cultural heritage 16 11%
Mining 15 11%
Other combinations of types 17 12%
Total 140 100%
There are several types of provisions most commonly found in
agreements on the database. Table 5 summarises these:

Table 5. Types of provisions most commonly found in agreements
Provisions Number Percentage
Payments or other compensation mechanisms 78 25%
Employment, education or training 59 19%
Contracting with Aboriginal businesses or assistance with establishing and
operating businesses
47 15%
Environmental management, rehabilitation after mining, land management,
other conservation programs
44 14%
Community assistance programs, good neighbour programs or sport 45 14%
Cross-cultural programs combined with any other 45 14%
Total combinations 318 100%
One quarter of the types of provisions found in agreements involve
payments of various kinds. These can include lump sum payments, soft
loans, royalty equivalents, and equity in companies, rents and lease
payments.
Closely following payments are provisions concerning employment,
education and training. Despite the indication that one fifth of agreement
provisions are devoted to employment, education and training, successful
long terms employment of Indigenous people on jobs in and associated
with mines is not high. There have been attempts by some companies to
earmark specified numbers of jobs (of varying kinds) within agreements,
along with in some cases, training and mentor programs. One such
attempt is outside the context of agreements, but is nevertheless a useful
and constructive example to include in this study.
Ngarda Civil and Mining (NCM) has a number of features that can be
regarded as best practice. Section 3.6.1 provides information on a joint
venture between Henry Walker Eltin Group Ltd, Ngarda Ngarli Yarndu
Foundation, and Indigenous Business Australia (formerly the Aboriginal
and Torres Strait Islander Commercial Development Corporation).
Some recent mining agreements have included statements to the effect
that the company will not oppose applications for determination of native
title by the Indigenous parties to agreements. However, in most
circumstances, there is no legal requirement on any party to make
undertakings with respect to native title. Nevertheless, recognition of
native title is of primary interest to claimants. Many of the recent
agreements concluded in Australia include recognition of native title by
consent determination, which is cheaper and more certain than protracted
litigation.

Most agreements include items specific to the particular situation. For
example, a 1998 agreement relating to the Lambina Opal Mining Field in
South Australia gave traditional landowners noodling rights to work
over the waste on mine sites.
2.2 Recent developments in agreement making
As indicated by the number of agreements included in the database, the
last five years have seen a surge in agreement making between
Indigenous interests and mining companies. Mining, Indigenous and
government representatives have remarked on an apparent sea-change
in relationships between the industry and Indigenous people, brought
about by a range of factors:
A general recognition by the mining industry that native title is here

to stay following the implementation of the amended NTA from
1998, and that it is preferable to work co-operatively within the
legislative framework, than to seek further changes to the Act;
Changes in mining and industry bodies corporate cultures, involving

a commitment to work with rather than against native title;
An increased interest in principles of sustainable development,

including the need to address such issues from the perspective of
Indigenous communities affected by mining developments. This
reflects the increased emphasis on sustainable development at an
international level, with a number of large mining companies being
multi-national or having interests overseas
4
;
Changes in the attitudes and resourcing of many Indigenous

organisations, including NTRBs, to dealing with exploration and
mining companies, and with governments. There is growing
recognition that agreements with the mining industry offer one of the
few ways in which Indigenous people in regional Australia can
develop employment, training, businesses and income;
Changes in approach by State governments to emphasise negotiation

of native title issues, rather than some previous approaches, which
sought to limit native title. There have been changes in direction in
how some governments manage native title issues, with greater
encouragement of settlement of claims and objections by negotiation
wherever possible, and
An increased familiarity by native title parties with agreements and

their negotiation, including the enhanced role of NTRBs, the
introduction of Indigenous Land Use Agreements (ILUAs) under the

4
The United Nations is also soon to consider the Draft Declaration of the Rights of Indigenous Peoples, which includes principles relating
to mining and sustainable development.

amended NTA, and an increased recognition of the need to resource
Indigenous communities to prepare for and undertake negotiations.
There is now a sound and growing body of knowledge around the country
of agreement making, including an increasing range of published material
about precedents. Useful Internet websites are listed in Attachment A3.
2.2.1 Range of current agreements
Large numbers of agreements have been reached involving mining and
exploration companies, Indigenous communities and on occasions other
parties including governments. Most of these are bilateral, involving a
company and Indigenous communities, but since the 1998 NTA
amendments, in particular the introduction of ILUAs (Division 3, Part 2),
State Governments have actively promoted and sometimes been party to
such agreements
5
. Of the agreements recorded on the database, 24 have
governments involved in the negotiation stages, and 13 where
governments are party to agreements.
The database identifies major operative agreements involving companies
and Indigenous parties, many of them native title applicants. It generally
does not document smaller agreements, notably heritage protection
agreements between native title parties and exploration companies, many
of them resulting from NTA section 29 objections to the use of the
expedited procedure for exploration licence applications
6
.
2.2.2 Mining agreements
There are 35 agreements on the database involving mining. Generally,
mining agreements relate to the development of specific mines, and are
commonly between a company and Indigenous communities, including
native title parties or titleholders under State land rights laws. They may
cover such matters as:
Relationships between Indigenous parties and the company, often

specifying good faith and mutual respect for rights and interests;
Compensation, which may involve direct payments, royalty

equivalents, or establishment of community trust funds;
Environmental and social impact assessment and management;
Employment and training, including enterprise support and

development;
Provision of community infrastructure and facilities;
Agreement governance;

5
For example, the Queensland Petroleum Act 1923 specifies that parties to agreement should endeavour to utilise ILUA provisions of the
NTA.
6
See Attachment A1 Native Title Act provisions and Indigenous Land Use Agreements.

Cross cultural issues, including awareness training;
Information exchange between the Indigenous parties and the

company;
Site rehabilitation following cessation of mining;
Other exit and post mine issues;
The role of governments, and
Clauses containing dispute resolution procedures to resolve difficult

issues during the negotiations and implementation.
2.2.3 Infrastructure agreements
Infrastructure agreements usually relate to approvals for construction of
pipelines, railways or other major mining infrastructure. By their nature,
many of these are large-scale, involving a number of Indigenous and
native title groups, and often covering similar issues as both mining and
exploration agreements. Provisions will usually relate to compensation,
access, heritage protection, procedures for gaining heritage clearances,
payments and employment, social and environmental impact, relations
between the parties and governance of agreements.
Examples of such agreements include:
The Eastern Gas Pipeline agreement, reached in 1997 between the

Eastern Gas Pipeline Consortium and six Indigenous groups from
NSW and Victoria, to allow construction of the 740 km pipeline to
proceed. The agreement involves money transfers, employment and
heritage protection;
The Chevron Gas Pipeline agreement, reached between Chevron and

native titleholders from Cape York to Townsville, to allow
construction of the 2,500 km pipeline;
The Australian Gas Light Company (AGL) agreement, reached in

1997 between AGL and Wiradjuri and Wonngaibon native
titleholders, to allow construction of a 255 km pipeline, and
The Midwest Gas Pipeline agreement, reached in 1999 between AGL

and three native title claimant groups in the midwest region of WA.
The agreement covers compensatory payments, establishment of a
trust fund to hold compensatory payments, heritage protection, and
the proponent obtaining all rights and permissions required.
2.2.4 Exploration agreements and protocols
Exploration agreements are commonly between Indigenous parties (often
native title applicants) and companies, and include ILUAs and bilateral
agreements involving Indigenous and mining parties. Since the
introduction of the ILUA provisions of the NTA, many of these now also
involve a State government as a party. There are 16 ILUAs recorded on
the database.

Exploration agreements and protocols commonly focus on issues of land
access, heritage protection, and procedures for dealing with exploration
licence applications, but may also include compensatory measures, good
faith relationships between the parties, and payments to Indigenous
parties. Exploration agreements may be larger scale in their application,
sometimes covering all of a companys exploration licence interests or
activities in a particular region or claim area.
There are several examples of such agreements, generally initiated by
Government or exploration parties seeking to reach agreement on
resolution of native title issues. We provide here information on the
broader state-wide ILUAs, and in addition to the guide to the main
provisions of the NTA in Attachment A1, we have also included the
legislative basis and key issues concerning ILUAs.
Queensland state-wide ILUA
In Queensland, a process is underway to develop an exploration ILUA
covering the entire State. In what is intended to be a co-operative process,
Queensland Land Councils and the State Government will consult widely
with Indigenous interests to develop a state-wide model native title
agreement. The aim is to develop one process for all exploration activity
in the region, bypassing the high and low impact distinction contained in
the NTA
7
. The model ILUA provides a basis for processing 900
backlogged exploration permits within a 12-month timeframe. Costs of
negotiation will be borne by the State, as will the costs of additional staff
required to clear the backlog. The Chair of the Queensland Indigenous
Working Group, Terry OShane, commented
8
that the framework
developed during the exploration permit ILUA would offer the base for
negotiations once mining operations commence, as well as for other areas
of economic life such as tourism. As such, the ILUA offers native
titleholders the opportunity for participation in the economic life of
Queensland.
Kalkadoon ILUA
The State ILUA follows one between the State of Queensland, the
Kalkadoon people and six exploration companies with exploration
interests in the Mt. Isa region. The Kalkadoon ILUA, signed on 13
September 2001, defines procedures for gaining consent over a 12-month
period to the grant of 90 backlogged exploration applications.

7
Queensland Premier Media Statement, 1 October 2001. http://statements.cabinet.qld.gov.au/cgi-bin/display-
statement.pl?id=3129&db=media
Ibid.

Other ILUAs
Similar ILUAs are under negotiation in South Australia, and in relation to
specific claim areas in WA. The WA Government appears to have
developed a model exploration ILUA as part of its consent determination
package, with an ILUA now applying to exploration activity in the
Nganawongka Wadjari and Ngarla native title area in the south Pilbara,
and similar agreements being negotiated with determined claims in the
Kimberley, the Western Desert and the Murchison.
Regional/area exploration agreements and protocol s
A number of other exploration agreements and protocols have been
reached outside the ILUA provisions of the NTA and do not involve a
State government as a party. In WA for example, such agreements have
been reached in the Kimberley (1999) and the Goldfields (1998).
The Native Title and Heritage Protection Memorandum of Understanding
(MOU) between Kimberley Land Council (KLC, the NTRB for the area)
and the Kimberley Explorers Group was reached in 1999. The agreement
is between the NTRB and seven companies with exploration interests in
the Kimberley region. The State Government is not a party to the MOU,
which does not apply to Aboriginal Reserve Land or land determined
under the NTA. The MOU establishes procedures for the region such as:
Notification by a company of exploration licence applications to the

Department of Minerals and Energy;
Notification by KLC of traditional owners and the existence of a

model agreement as an alternative procedure to that available under
the future act provisions of the NTA; and
Notification of the explorer by KLC within 60 days or as soon as

possible thereafter of the decision of the traditional owners to enter
an agreement.
The model Native Title and Heritage Protection Agreement between a
native title claimant group and an explorer, establishes a procedure for
agreement for the clearance of exploration licence applications outside
the objection procedures of the NTA.
Under the agreement, an explorer will endeavour to provide employment
and economic opportunities and other community benefits, and seek to
minimise social and environmental impacts on the community. The
explorer will meet with the traditional owners when requested to discuss
material benefits it may provide under the agreement, and information on
the exploration program. The agreement establishes a procedure for
clearance of work program activities, and defines a budget negotiation
process for field inspections and work clearances, under which the
explorer agrees to pay all agreed costs.

Similar agreements have been negotiated between the Goldfields Land
Council and exploration companies operating within various native title
claim areas in the region.
A South Australian access agreement was reached in August 1997
between five native title groups represented by the Aboriginal Legal
Rights Movement (ALRM), the NTRB for South Australia, and fourteen
companies covering the Gawler Craton area. Under this agreement,
exploration may proceed within an area of 44,000 square kms, subject to
the protection and avoidance of culturally significant sites.
The NSW Minerals Council and the NSW Aboriginal Land Council have
developed a Model Low Impact Exploration Access Agreement to assist
exploration companies and native title claimants to reach agreement about
land access in relation to the States s. 26A scheme. The Agreement
covers only applications for low impact exploration licences, and
applications for determination of native title under the NTA. Dealings
between mineral licence applicants and local land councils continue to be
covered by the Aboriginal Land Rights Act (NSW). The Agreement is
voluntary, but aims to provide certainty to the parties including
compliance with all relevant provisions of the NTA, notably s. 26A.
2.2.5 Heritage protection agreements
While the database includes very few small heritage protection
agreements, large numbers have been entered into over the past few
years, including some under the various Commonwealth and State laws
on protection of Aboriginal heritage predating the NTA. Under the NTA,
heritage protection agreements have often been reached in relation to the
expedited procedure provisions of the Act. Under these provisions, a
native title party may object to the application of the expedited procedure
in relation to exploration. If the objection is upheld by a hearing of the
NNTT, then the right to negotiate applies. A number of WA and NT
NTRBs have adopted the practice of advising their clients to object to all
expedited procedure applications. However, most, at least in WA, have
adopted the approach of asking companies to consider use of model
heritage protection agreements, which if they agree, will generally result
in the objection being lifted. While broad regional heritage protection
protocols have been adopted in some areas of WA, at least one major
NTRB there and at least one in the NT continue the practice of objecting
to all such expedited procedure applications, arguing that this is the only
way to ensure that the native title rights of their clientele can be
guaranteed protection.
Some governments and exploration companies have expressed ongoing
frustration with the objection and heritage agreement process, arguing
that they increase the timeframes and costs of gaining access to land for
exploration purposes. Similarly there has been concern about the various
clearance methodologies and different cost structures used by NTRBs.

But on the positive side, management of the objection process and
subsequent participation in heritage clearance processes have allowed
native title claimants the opportunity to become familiar and more
directly involved with heritage protection by agreement with other
interests. This increased familiarity and confidence in managing these
issues has in a number of cases resulted in adoption of more efficient
ways of dealing with heritage protection, including the use of regional
protocols and ILUAs, and a more efficient approach to negotiating
substantive agreements if companies proceed to mining.
2.2.6 Conjunctive and disjunctive agreements
The issue of conjunctive and disjunctive mining agreements has been
much debated over the past two decades. The database includes 27
conjunctive agreements (one agreement covering all stages of a mining
project).
Although Commonwealth and State/Territory legislative regimes
generally favour conjunctive agreements and the mining industry also
favours this approach, there is generally a preference for disjunctive
agreements (separate agreements covering various stages of a mining
project) within Indigenous communities. This is partly due to the view
that disjunctive approaches allow greater ability to monitor developments
on land subject to native title application, and partly due to the desire to
participate in broader benefits once it is clear what the value of the mine
is likely to be.
The approach taken by the Northern Land Council to gain the benefits
from disjunctive agreements while using conjunctive agreements has
been well described in a discussion paper by C. O'Faircheallaigh
9
. It
provides an overview of the NLC's approach towards negotiating mineral
exploration agreements on Aboriginal land up until 1995. An extract from
the discussion paper can be found at Attachment A4.

9
C. O'Faircheallaigh Mineral development agreements negotiated by Aboriginal communities in the 1990s, Centre for Aboriginal
Economic Policy Research, Australian National University, No. 85/1995, pp 2-5.

3. Case st udi es and ot her i nf or mat i on
Data for this section are drawn from a number of sources:
A review of relevant literature and databases;
The survey of mining companies, which were sent a questionnaire

(see Attachment A2), and some subsequently interviewed by phone;
A survey of NTRBs, and
Discussions with some relevant Commonwealth and State agencies.

The surveys did not aim for a universal coverage, nor were they
administered on a representative basis, participation in the exercise being
voluntary. This was in accordance with the focus of the study on best
practice, rather than quantitative indicators of content and coverage.
The aim of this particular exercise was to obtain the views of companies
and Indigenous parties to agreements. Selection of these agreements was
largely through their nomination by stakeholders, including participants at
the Brisbane AMEEF Conference in September 2001, and other
interviewees. Because the budget for the project allowed only a limited
amount of travel, visits were limited, and phone contact was used
whenever possible. The consultants visited Cairns and Weipa in
Queensland, the Pilbara in Western Australia, Darwin and Sydney.
It must be emphasised that the aim of data collection was to identify best
not worst practice. Although problems were identified with some of the
agreements, and both companies and Indigenous parties voiced concerns,
particularly in relation to the process of negotiating agreements and their
subsequent implementation, the specifics of these have been treated in
confidence. Nevertheless, the lessons from these concerns have been
incorporated in the findings and recommendations of this report.
The need to maintain confidentiality was important; particularly as most
agreements included clauses relating to consideration, such as financial
transfers, trusts and other beneficial arrangements. Thus, the content of
specific agreements is only identified where information is public, or
where permission has been formally given. In any case, the key elements
in best practice relate to the process of negotiation and to implementation
issues. Best practice in relation to the full content of agreements would
require a much more comprehensive study.
In relation to process and implementation, there were issues of
confidentiality to consider. Because the mining industry necessarily
operates in a commercially competitive context, some companies are
reluctant to reveal methods of negotiation that may have been developed
through long hard experience, and be viewed as confidential corporate
knowledge. This is not so with all companies, some of which readily

publicise their approaches to negotiation, as well as their company
perspectives on the participation of Indigenous parties in mining
developments. Some NTRBs also insist on strict confidentiality of all
provisions in agreements to which they are a party. Co-operative
approaches to development of agreements will contribute to the growth of
industry knowledge and expertise in Indigenous negotiations.
3.1 Western Australia
The Gallop Labor Government, elected in February 2001, has indicated it
supports the resolution of native title issues by negotiation. It has recently
released its Review of the Native Title Claim Process in Western
Australia
10
. The review suggests a fundamental change in the way native
title is administered
11
:
Rather than view issues as preconditions to
engagement, ... the Government should engage with the
parties to a native title application to resolve issues and
problems and negotiate outcomes.
Its recommendations include:
A summit of Government, the Federal Court, peak bodies and
claimants to co-ordinate the resolution of native title applications;
Rigorous assessment of evidence of connection to country;
Enhanced access to Government records that could assist claimants in
compiling evidence in support of their application;
An overhaul of State land use and management laws to integrate
processes for the recognition of native title and other rights of
traditional owners, and
A public education campaign to encourage agreement making.
Depending on the Governments consideration of the approaches
recommended, important changes in the States approach to native title
may result. The Government has sought public comment on the report,
and is yet to announce its detailed response. In its initial response to the
report, the Government has said that while it is committed to settling the
States 133 native title applications by agreement, legislative reforms are
needed to put in place the legal and policy infrastructure to deliver the
results. These could further encourage the mining and other sectors to
look at negotiated and mutually beneficial outcomes, rather than seeking
to limit or oppose native title.

10
Review of the Native Title Claim Process in Western Australia - Report to the Government of Western Australia, Paul Wand and Chris
Athanasiou, September 2001
11
Ibid., page 105.

Despite the different approach of the previous State Government to native
title, a number of important agreements have been reached over the past
few years that have delivered significant benefits to Indigenous parties,
while allowing companies to obtain the necessary consents and approvals
to commence their operations. Three such examples are described below.
3.1.1 The Yandi Land Use Agreement
The Yandi Land Use Agreement was concluded in March 1997 between
Hamersley Iron Pty. Ltd., and the Gumula Aboriginal Corporation,
representing the native title claimants of land covered by the companys
Yandicoogina iron ore project (the Innawonga, Bunjima and Niaboli
people). It provides for all mining and infrastructure (miscellaneous)
titles for the life of the project and for exploration over the whole claim
area.
The agreement was the first major land use agreement to be concluded
after the 1992 Mabo decision, and took over twelve months to complete.
No native title claim had been made when negotiations started and it was
only after the three language groups had come together in discussions
with Hamersley Iron for about 12 months that they decided to join to
make a claim and negotiate as one group. Negotiations were initially
outside the scope of the NTA, but once agreement between the
Indigenous and mining parties was reached, it was necessary to provide
Hamersley with the legislative certainty that it required for the project
12
.
As the agreement pre-dated the 1998 NTA amendments, it could not be
registered as an ILUA.
Clive Senior, who was employed as a mediator in the negotiations,
documented the process of negotiating the agreement. This document,
emphasising the need for attention to the process of commencing and
undertaking negotiations, is recommended for industry as an important
case study, and provides much useful information on processes for
commencing effective negotiations on major projects. As such it is worth
discussing in some detail.
Senior documents the main stages in the negotiations as follows:
1) The decision to negotiate
A company has a number of options in planning for a new development
where native title and heritage issues are involved:
A legal adversarial approach;
Negotiations, and

12
Clive Senior, The Yandicoogina Process: a model for negotiating land use agreements, Regional Agreements paper no. 6, Australian
Institute of Aboriginal and Torres Strait Islander Studies, 1998, page 12. The description of the contents of the agreement that follows
relies on this paper.

A wait and see approach with regard to judicial or legal

developments.
Initial planning for the project commenced shortly after the introduction
of the NTA in December 1993, and heritage surveys were completed of
the mine site and railway corridor. As a result of these, the company
developed initial contacts with elders of the traditional landowning
groups, and made changes to the route of the railway due to heritage
concerns. Thus, the company was engaged at an early stage in
information collection, identification of key issues and assessment of
options, and it was this internal process that led to the decision to
negotiate.
At the same time, the companys corporate culture was changing; key
executives
13
... saw in the Native Title Act an opportunity to shift group
policy towards a more constructive resolution of disputes. Further,
Senior comments that ... a great deal of executive time was devoted to
the native title issue and to developing a more constructive and consistent
approach to dealing with it than in the past. Thus, the attitude of the top
management of the company favoured reaching agreement through
negotiation.
2) Social mapping and external consultation
Three main objectives for this stage were identified:
Obtaining the views of people with knowledge and experience of

negotiated settlements;
Getting to know and understand the circumstances, motivations and

aspirations of the main Indigenous stakeholders, and
Developing a positive climate for negotiation through consultation.

The aim at this early stage was to listen and gather information as well as
to provide information about the project, on the basis that ... if people
were consulted and kept informed of the project and the consultative
process, they were less likely to listen to uninformed criticism. As Senior
comments
14
:
The consultations revealed a wealth of information
about which individuals had to be involved in
negotiations over the project. Apart from establishing
personal contact with the relevant Aboriginal people,
the company had also gained an understanding of their
attachments to land, of personal motivating factors and
of family relationships and disputes, all of which added
up to more than passing understanding of the shifting

13
Ibid., page 3.
14
Ibid., page 4.

and unpredictable nature of Aboriginal politics in the
Pilbara.
3) Facilitation and emergence of a representative Aboriginal
organisation
The company understood that it would need to allocate resources to
support the Indigenous negotiation parties, recognising that this carried a
certain level of risk, given that it would not be able to exercise control
over this element of the process. There was a need, for example, to fund a
number of community meetings, engage an independent facilitator, and
fund independent legal advice for the Indigenous parties.
Because in this particular example there was no single existing
organisation with the capacity to represent all Indigenous interests in
negotiations, it was necessary for the Indigenous interests to consider how
they wished to organise themselves for negotiations. After a number of
bush meetings, the decision was taken to establish a new organisation
representing all the Indigenous parties to negotiation, and so Gumala
came into being.
Gumala needed a range of resources to do the job, including legal and
commercial advice, and assistance with community planning and
management, all of which required funding by the company. Senior
comments that, at this stage, there were undoubtedly some misgivings
about the process among company personnel. However, they allowed the
process to take its course because of the requirement for it to be
conducted with the utmost integrity. Once the decision had been taken to
pursue the negotiation course, the company retained its commitment to
working with the Indigenous parties to resolve the issues co-operatively,
despite numerous problems and frustrations, as well as expense.
Gumala subsequently selected a negotiating team of ten members to
engage in the formal negotiations.
4) Formal negotiations
In the first instance, a draft protocol on the way negotiations should be
conducted was prepared and circulated to all negotiation parties. This
protocol incorporated two key principles:
That negotiations were to be conducted in good faith to build on the

reservoir of trust and goodwill that had already been established, and
That negotiations should focus on outcomes that had the potential to

provide long-term benefits and security for both parties.
The protocol also committed the parties to informing and consulting each
other before taking certain actions. Thus, Gumala agreed not to file native
title applications over the impact area without first informing Hamersley,
and Hamersley undertook not to seek access to the right to negotiate
provisions of the NTA, or to make applications under State heritage
legislation without consulting Gumala.

The protocol also dealt with matters such as privacy
15
:
The negotiations were ... subject to strict
confidentiality provisions contained in a separate deed
attached to the protocol. Anyone attending a negotiation
session was required to sign a separate confidentiality
agreement.
Negotiations were conducted in the form of mediation, with a mediator
having responsibility for overseeing negotiations and giving a structure to
proceedings. The role of the mediator also involved:
Helping parties to isolate issues;
Identifying forward-looking interests, and
Assisting parties to agree on issues in a way that accommodated their

mutual interests.
Senior comments on the importance of structuring negotiations
16
:
Once issues had been identified, the less controversial
ones could be tackled first. This helped to increase the
confidence of the parties and to familiarise them both
with each other and the process. The very act of signing
off on a particular issue gave a feeling of direction and
achievement and helped the parties develop a
relationship of trust.
The author characterises negotiations as a series of staged
agreements:
Agreement over the protocol;
Agreement on conduct of heritage surveys;
An MOU setting out the general terms of agreement, and
The final land use agreement.

It was important in negotiations to maintain momentum, and
sessions took place at frequent intervals, with no more than
two or three weeks between meetings. When deadlocks were
encountered (which happened at one point), communications
were maintained to continue to explore options and
identifying ways of breaking the impasse.
5) Finalisation
The final agreement needed to include technical matters that had not been
the subject of negotiations, such as taxation implications and details of
trusts. In addition, the provisions of the NTA needed to be addressed in
relation to the grant of the appropriate licences to mine. The involvement

15
Ibid., page 9.
16
Ibid., page 10.

of Government, which had not been directly involved in negotiations,
therefore, became a key issue at this stage.
The consent of all the Indigenous stakeholders was also required to the
final agreement, and this required further consultation and information
dissemination. Once individuals had signed and all Government
approvals were given, the process was effectively complete. A symbolic
end to the process took place, with a barbeque attended by a large number
of people from both parties, involving music, speeches and an exchange
of gifts; A sense of achievement, satisfaction and a genuine feeling of
goodwill prevailed.
Senior concludes
17
:
The Yandicoogina process demonstrates what can be
achieved given detailed planning and a willingness to
negotiate in good faith by both sides. The process can
no doubt be criticised as being expensive and time-
consuming, taking almost two years to complete.
However, it does not necessarily compare unfavourably
with the time and expense that alternative approaches
might have involved. Most important, the Land Use
Agreement was one reached between the parties
themselves without outside intervention.
3.1.2 Argyle Diamond Mine MOU with the Kimberley
Land Council
The Argyle Diamond Mine has had operational agreements with
traditional owners of the East Kimberley since 1980, but these have had
certain problems in relation to inclusiveness and scope. For example,
many East Kimberley traditional owners felt that benefits from the
agreements were distributed unevenly. The initial Argyle Social Impact
Group operated for 10 years between 1980 and 1990, and, as a good
neighbour type agreement, selectively distributed resources and
equipment.
The Argyle Diamond Mine recently announced its intention to extend the
life of the mine until 2007, and in conjunction with this announcement,
commenced discussions with the KLC, the NTRB for the Kimberley,
about a MOU. While the specific terms of the MOU are not public, the
broad aim is to adopt a new strategic approach to developing a
comprehensive agreement with traditional owners who may be affected
by the extension of the mine. It is intended that the agreement be
negotiated over a realistic period, and be much broader than the previous
ones. The company aims to provide tangible benefits for both parties,
including employment and training opportunities for Indigenous people.

17
Ibid., page 13.

The involvement of the KLC in the identification of traditional owners is
significant, as it demonstrates that the company is keen to establish the
negotiations on a sound footing. It is clearly prepared to put time and
money into the process of establishing a negotiating group of traditional
owners, as well as a framework for negotiations. Its willingness to put in
the hard work at the beginning of the process suggests that negotiations
will proceed systematically towards an agreement. Furthermore, it sets
the environment for prompt registration of an ILUA once agreement is
reached.
3.1.3 BHP Area C Agreement
In order to mine iron ore at Marra Mamba in the Pilbara, WA, BHP Iron
Ore entered into three separate agreements with:
Innawonga Bunjima Niapaili (IBN) native title claimants in J une

2001;
Martu Idja Banyjima (MIB) native title claimants in December 2000,

and
Nyiyaparli claimants in relation to the power-line corridor to the

mine.
The main elements of the agreements include:
Compensation payments to IBN and MIB trusts to fund community

programs, and payments for the benefit of claimants, averaging
$3 million each year over the life of the mine;
Employment and contract work specifications in tenders, and
Protection of Indigenous heritage and culture.

While the specific terms of the agreements are confidential, the
establishment of trusts in accordance with the provisions of the NTA
allows the claimants a measure of self-determination as to how benefits
are allocated. The employment and contracting provisions are
fundamental to the companys goal of increasing Indigenous employment
and contracting to 12% of its area workforce. This is supplemented by a
commitment to provide $500,000 per annum to fund Indigenous
employment, training and youth education programs, as well as an
expansion in the Indigenous apprentice intake.
From the viewpoint of the IBN claimants, negotiations proceeded
smoothly and most were happy with the way they were conducted. A
number of the younger claimants had previous experience both in relation
to the earlier Yandicoogina process and through their work experience
and involvement in trade union negotiations. Added to this, the IBN
group was already established and included the key Indigenous
stakeholders for the area subject to the project. It was, therefore, an
appropriate body to conduct negotiations on behalf of the stakeholders.

The company made the first approach and suggested an agreement. Once
they had been fully briefed on the project, the claimants agreed that an
agreement was feasible and offered to undertake all necessary
consultations within the companys timeframes to lay the groundwork for
negotiations, to be funded by the company. An upper limit of costs for
consultations was agreed, with an understanding that if costs exceeded
this amount, they would be deducted from later beneficial payments
under the agreement. In addition, the company agreed to fund an
independent commercial iron ore consultant to advise the claimants on
the project, and to allow access to all documents and materials on the
deposits. In addition, the company provided funds for an independent
facilitator to oversee negotiations, whose previous experience included
work on the Yandi Land Use Agreement.
The agreements are expected by the company to set standards on how the
company does business with Indigenous groups in the future. From the
claimants perspective, they were happy with the process of negotiating
the agreements, and with the content. Their previous experience with
Yandicoogina brought a greater familiarity and confidence with the
process and undoubtedly facilitated an outcome.
3.2 Northern Territory -Tanami agreements
Normandy Mining Limited has reached a number of agreements with the
Warlpiri people in the Tanami region of the Northern Territory
18
. This
region is located northwest of Alice Springs. The agreements were
negotiated and signed by the Central Land Council (CLC) on behalf of
the Warlpiri people.
There are two sets of agreements: six Tanami agreements, the first dating
from 1983; and the new Groundrush agreements (four), signed in 2001.
The Tanami agreements have undergone several revisions or extensions
over time. They cover mining and exploration on Normandy leases and
exploration tenements. The Groundrush agreements cover pre-feasibility
work on the Groundrush prospect and will be reviewed after a feasibility
study.
Both the Tanami and Groundrush agreements are as required under the
Aboriginal Land Rights (Northern Territory) Act (Commonwealth) 1976,
and also cover matters of cultural heritage. The early Tanami agreements
were negotiated by North Flinders Mines, which was subsequently taken
over by Normandy.

18
For more information on these agreements, see Now and Beyond, a report about Indigenous relations on the Normandy website
www.normandy.com.au.

The recently discovered Groundrush prospect is on land already under an
exploration agreement. Following discovery, Normandy approached the
CLC to upgrade the agreement.
The agreements contain strong provisions for the management and
protection of cultural heritage including that all heritage sites within
active mining areas and areas being intensively explored are identified
and fenced off. There is active interaction with the traditional owners
who visit regularly. If Normandy geologists identify a possible site, the
CLC is notified and heritage clearances arranged. All operations have
formal procedures to ensure sites are protected. All staff are trained in
site recognition and care.
Negotiating agreements has been challenging for Normandy, particularly
with respect to timeframes required for negotiation. The CLC needed
sufficient time to consult with the Warlpiri people, and the people needed
time to discuss issues between themselves. Despite timing concerns,
negotiations generally kept ahead of critical paths for project
development. Normandy recognises that its project management systems
need to take account of negotiation timeframes.
Negotiations of the Groundrush agreements were conducted over some 10
formal meetings, plus numerous informal discussions. Normandy reports
that meetings were conducted in a spirit of mutual respect. Normandy
negotiators included the general manager of the Tanami operations, the
Indigenous relations manager and advisers. A consultant solicitor also
attended all formal meetings. The CLC team included a CLC lawyer.
The Normandy team reported to the senior business development
manager on the group, and the CEO and Board were kept informed.
No government agencies were involved in negotiations, but the
Commonwealth Government was required to approve the agreements
under the Aboriginal Land Rights (Northern Territory) Act (ALRA(NT)).
The Act also requires that the Government monitor the implementation of
the agreements.
The agreements include the following provisions: compensation; direct
payments; indirect payments of royalty equivalents via the NT
Government; a community trust fund as required under the ALRA(NT)
(the NT Government also contributes to this fund); access to country for
the traditional owners; medical treatment of traditional owners at mining
camps; assistance for traditional owners when travelling through country
via mining camps; financial assistance to the CLC for administration of
the agreement; training and employment; and environmental protection
and rehabilitation; and cross cultural training of employees.
Environmental protection provisions are very comprehensive, reflecting
the wishes of the traditional owners and long standing priorities of the
CLC, as well as best practice in the mining industry. They include:
minimal disturbance of ground; management of topsoil; no interference

with natural water systems; rehabilitation as soon as exploration and
mining plans allow; retention of natural vegetation where possible;
prevention of introduction of exotic flora and fauna; steps to prevent
injury and death to wildlife, including capping of drill holes; monitoring
of the natural environment and any impacts, and reporting; and regular
testing of water quality and reporting to traditional owners.
Employee training and management include: cross cultural awareness
training courses (including refresher courses); heritage recognition and
protection training; removal of employees if they trespass on heritage
sites; and no alcohol or guns on mining leases.
Employment and training provisions aim to provide employment
opportunities to Aboriginal people generally and to contract and sub-
contract to Aboriginal businesses. A Normandy employee assists CLC to
identify employment and contracting opportunities. A list of all goods
and services required is periodically supplied to CLC. Contractors are
required to adhere to the same provisions as Normandy.
Several training schemes operate for Aboriginal people. CLC is notified
of all employment and training vacancies. A mentor program operates,
with trainees/employees electing their own mentor. Mentors are provided
with mentor training. Training programs include: environmental
traineeships in conjunction with Centralian College; workplace literacy
and numeracy for all employees who require it (a schoolteacher visits site
four days per week); a mine access course to help people access the
industry; and scholarships for local students to encourage secondary
study.
Normandy is endeavouring to increase employment of local people.
Many Aboriginal employees currently are from outside the region.
There are also links with the Community Development and Employment
Program (CDEP), particularly for subcontracting of camp maintenance
and other tasks. These subcontracts are operated outside the usual shift
roster system and fit with the cultural and social needs of the people.
A liaison committee comprising two people from CLC, two from
Normandy and three Warlpiri people, monitors implementation of the
agreements. Up to five non-members from each party can also attend.
The committee meets about three times a year and funded by Normandy.
The agreements include a dispute resolution system, including a provision
for arbitration.
Benefits for Normandy have been that the operations have been able to
continue and new operations have been able to be established within
timelines. There have been few difficulties in getting exploration
permits. Benefits identified by Normandy for the Aboriginal people
include:
Income;

Employment and training;
Ability for Warlpiri people to visit their country more regularly,

through better roads and provisioning at mining camps, and
Outlets for work of local artists at mining camps and through

Normandy.
Normandy considers that there are several things that could be done
better:
Recognising that timing of negotiations is governed by the needs of

the Aboriginal parties for consultation and discussions and allowing
more time in project management timelines;
Need to learn better from experiences in negotiating agreements and

apply to future negotiations;
Need a system of recording and retaining knowledge of matters

relevant to negotiations within the company to overcome problems of
loss of knowledge when people leave;
More open and timely communication between Normandy and CLC,

and
While appreciating the CLCs role as legal representatives,

Normandy also referred to the need for opportunities to engage
directly with the Warlpiri group in order to improve communications
and develop long-term relationships with the peopl.
3.3 South Australia WMC Ol ympic Dam agreements
Olympic Dam Aboriginal Heritage Management Agreement
Olympic Dam Community Development Agreement
The Olympic Dam Aboriginal Heritage Management Agreement and the
Olympic Dam Community Development Agreement were agreed in
March 1999 between the company and four Indigenous groups:
Kokotha Peoples Committee;
Barngarla Aboriginal Consultative Council;
Wukuna Peoples Committee, and
Kuyani Association.
The Port Augusta Native Title Working Group was also involved in
negotiations.
The expansion of WMCs Olympic Dam uranium mine took place against
a background of opposition from Indigenous organisations and
environmental groups over uranium mining and use of water resources.
Further, some perceived the company as opposing Indigenous rights and
aspirations, which led to mutual suspicion. Although the company

succeeded in negotiating agreements with four Indigenous parties, there
opposition from others to the mine remains
19
.
A recent history of poor relations inevitably affects the present, and it was
against this background that WMC sought to enter agreements with
Indigenous stakeholders.
Initial impetus for the agreements came from plans to expand the mine,
including construction of a power-line from Port Augusta to the mine-
site, and a later requirement to expand the tailings system at the mine. In
1996, the South Australian government offered an easement for the
power-line under the pre-existing indenture agreement. But after the High
Courts Wik judgement in December 1996, the Government advised the
company to seek a negotiated agreement with native title parties, due to
concerns that grant of the easement might entail a past act under the terms
of the NTA. In addition, the native title parties indicated that they would
challenge the easement. In such circumstances, the company decided it
had little choice but to negotiate.
Initial contact between the parties was difficult, with negotiations taking
some time to get under way. WMC wished to confine discussions to
heritage protection matters under State legislation, but the native title
parties insisted that native title issues were central to the agreement. The
company agreed to meet most of the costs of negotiation, although there
were early attempts to acquire funds for the purpose from the Aboriginal
Legal Rights Movement. WMC funded each Indigenous group to engage
its own advisers on heritage matters.
An early matter for resolution concerned the scope of benefits payable by
the company under the agreements. The claimants sought compensation
including direct cash payments as well as transfers into community trusts
for community purposes. The company refused requests for cash
payments, insisting that it would only allocate resources for community
purposes. Once the Indigenous groups accepted this condition ,
negotiations between the parties proceeded reasonably smoothly and in
good spirit.
Each group selected four men and four women to carry out negotiations.
The groups represented themselves, without the involvement of an
NTRB. At WMCs request, initial discussions focussed on heritage
approvals so that construction of the power-line could commence. Once
these approvals were given, the time frame for negotiation of the final
agreements proceeded and, although it took some time, was not subject to
similar tight time constraints.
The agreements cover a range of matters:

19
In 1999, an Arabunna group elder filed a notice of trespass on WMC, and also sought to pursue a High Court action against the WMC
CEO for mining without consent on Arabunna and Kokotha land.

Support for heritage protection and management, including

administration and office costs. Under the agreements, each group
has an administrative structure and a community office;
Provision of limited community infrastructure and equipment;
Access to grants for community purposes;
Provision of scholarships and training;
Assistance with business development and employment programs;
Contracting and sub-contracting arrangements, and
Assistance with documentation of heritage and culture.

Implementation and management of the agreements is through:
The Community Relations Unit at Olympic Dam;
WMC funded six-monthly liaison meetings between the Indigenous

parties and the company, and
Dispute resolution procedures within the agreements.

Both the company and the Indigenous parties believe that the agreements
have been mutually beneficial, noting that there have been no disputes
since they were entered. In addition, they have served to formalise
relationships between the parties, have built up mutual trust, and served to
develop understanding of processes and procedures. While the company
believes that the Indigenous parties have benefited most from
arrangements for heritage protection, it expresses concern is that they
have been slow to take up community development possibilities under the
agreement. This extends to concerns that some groups have not availed
themselves of benefits under the agreement, and have not sought any
assistance from the company within the terms of agreement. These
concerns suggest that communication between the parties may not be
working effectively.
Using negotiated agreements in its future project development appears
now to be WMC's preferred approach. The company plans further
expansion of Olympic Dam and has started discussions with the four
parties to the agreements in relation to heritage and native title issues.
3.4 Queensland - Western Cape Communities Co-
existence Agreement
The Western Cape Communities Co-existence Agreement was signed in
March 2001. The signatories include 11 traditional owner groups, four
Indigenous community councils (Aurukun, Napranum, Mapoon. and New
Mapoon), bauxite miner Comalco and the Cape York Land Council
(CYLC) as the representative body for Cape York under the NTA. The
Queensland Government is also a signatory and will provide additional
benefits when the agreement is registered as an ILUA under the
provisions of the NTA.

The agreement, which was concluded after five years of discussions,
recognises and respects the native title rights of traditional owners and
allows for consultation over future development of mining operations in
the Western Cape York Peninsula. The agreement covers an area of
approximately 2,500 sq km.
The agreement has two main aims. The first is to ensure that the
Aboriginal communities support Comalco in doing all the things it needs
to do to carry on and expand its mining business. The second is to
provide the communities with benefits from Comalcos business and to
give them some say in the way Comalco operates, especially in terms of
protecting significant sites.
Comalco had been operating in the region since 1960, and there were
some pressures to maintain the status quo despite its ad hoc approach to
Indigenous matters including a lack of recognition of traditional owners
or their native title aspirations.
There was a likelihood that Comalcos mining leases in Western Cape
York would be subject to native title claim in the future, and by 1995, one
part of the area was already under claim. These became a driver behind
Comalcos realisation that the historical approach to maintaining good
neighbour relations was falling short of contemporary expectations of
the Indigenous and wider Australian communities. Discussions on the
agreement started in late 1995 with Comalco and the CYLC agreeing that
it would be preferable to pursue a negotiated settlement rather than
address native title issues in the courts.
Early in discussions, a MOU was reached. This provided for a series of
background studies to document the needs of the respective groups. The
studies comprised analysis of needs and environment and community
impact reports on operations in each of the three Comalco lease areas.
The CYLC engaged independent consultants to compile the reports over
12 months.
The first proposals were not put forward until the end of 1997. Proposals
were exchanged between parties. The needs assessments helped identify
core components. Issues covered by the proposals were employment and
training; cultural heritage and site protection; economic support and
development; native title; and payments to the Indigenous parties. There
were initially major differences between the parties on how to address
native title and on payments.
The CYLC received funding for the negotiation process from the
company for CYLC participation and consultants, the Aboriginal and
Torres Strait Islander Commission (ATSIC), and the Queensland State
Government for some of the process towards the end of negotiations. The
CYLC presented budgets for the background studies and reporting to
Indigenous communities. The funding support from ATSIC during the

early period of the negotiations was unusual in that ATSIC does not
normally fund negotiations unless they are seen as strategic in nature. .
During negotiations, the Indigenous parties used legal advisers, cultural
heritage consultants as well as other consultants to provide financial and
economic assessments.
Discussions started on an optimistic note and progressed quickly to agree
on principles. As negotiations began in earnest, difficulties arose, with
both parties concerned about the agendas and approaches of the other.
These difficulties slowed, and sometimes stalled negotiations. Some of
these difficulties were at least in part due to the lengthy time over which
the negotiations were conducted. The people involved changed, with
consequent loss of personal relationships and corporate memory of what
had gone before.
Limited CYLC resources also slowed progress, particularly when
discussions with other mining companies were occurring and priorities
shifted.
Senior middle management personnel, who had broad authority subject to
corporate governance requirements, conducted negotiations on behalf of
Comalco. The negotiators reported directly to the Managing Director of
Comalco.
Some six months before the signing of the agreement, a second MOU was
signed between the CYLC, Comalco and the Queensland Government.
This MOU committed all parties to promote the agreement to their
respective communities, and for the CYLC to endeavour to obtain the
agreements of the traditional owner groups. This MOU was designed to
be a good faith sign-off before the formal signing by all parties.
Before the formal agreement was signed, the CYLC undertook and
completed the process of obtaining consent, which under the NTA,
required the CYLC to certify that all possible native title parties had
agreed, and that those signing were the correct people. Comalco
undertook due diligence on the process through a consultant
anthropologist.
While the State Government was a party to the final agreement, it was
involved only in an observer capacity during most of the negotiations.
Both State and Commonwealth Governments were kept informed of
progress throughout the negotiations, but when CYLC and Comalco
reached the stage of convergence of positions, governments sought the
involvement of the State Government. The ILUA required State
Government agreement in any event.
The agreement covers State provisions on statutory matters such as land
transfers and surrender of leases, as well as facilitation of implementation
of the agreement and contributions to revenues.

While the Commonwealth Government would not normally take a role
beyond monitoring and facilitation through the NNTT, the Tribunal has
become involved in the administration of the Western Cape Communities
Trust (see below) by providing the Trust facilitator.
On the initially contentious issue of native title claims, Comalco and the
Aboriginal parties agreed to the following:
The Aboriginal parties agreed to there being no exclusive possession

and no challenge to Comalcos existing rights and interests, and
In return, Comalco pledged its support for native title claims over its
areas and agreed to support fast tracking of claims and that after
claims have been registered, and after Comalco has relinquished land
under claim, it would not object to native title rights being restored to
the fullest effect at law.
Features of the agreement
Significant aspects of the agreement include:
1. Recognition and support for traditional owner groups and their
claims for native title;
2. Registration of the agreement as an ILUA under the NTA;
3. On signing the agreement, relinquishment then, and
progressively, of parts of the Comalco lease no longer needed for
mining, to the State Government for return to Aboriginal
ownership;
4. Contribution of $2,500,000 each year (minimum) to Western
Cape Communities Trust for projects benefiting traditional
owner groups and the Western Cape communities. This amount
may increase with increases in Weipa production and with higher
aluminium prices;
5. $500,000 annual Comalco expenditure on employment, training
and youth educational programs endorsed by the Western Cape
Communities;
6. State Government contribution of about $1.5 million a year to the
Western Cape Communities Trust for allocation to local
community development projects and Traditional Owner
proposals once the Agreement is registered as an ILUA;
7. Cultural heritage surveys and site protection plans, and cultural
awareness training for all Comalco staff and principal contractors
in Weipa, and
8. Support for community development, Indigenous business
enterprises and establishment of outstations on suitable areas of
the mining lease.

Traditional owner groups have agreed to invest 60% of the revenue
stream for 20 years (including reinvestment of dividends) to provide for
their childrens financial future.
There is no formal implementation plan for the agreement. The parties
contend that it is so broad that a plan is not practicable. A co-ordination
committee meets monthly to monitor implementation, however. It is
intended that as implementation progresses, meetings will move to
quarterly. The committee comprises representatives of all signatory
parties. Comalco provides the funding for the committee. The agreement
also provides for the appointment of an executive officer to provide
administrative support for agreement implementation.
From Comalcos perspective, the principal benefit is certainty for its
operations. Both sides agree that they have an agreement that is worth
preserving and making every effort to ensure that it is successful in
delivering the mutual benefits intended by the negotiators.
The agreement was registered as an Indigenous Land Use Agreement on
24 August 2001. There were no objections during the formal 90-day
objection period. Registered native title claims (for example, the Wik
claim) have been changed to conform to the agreement and these have
received support form the Federal Court, in part because it recognised
that good faith has been shown by the parties.
Lessons l earned
Comalco considers there are some significant lessons from the
negotiations for itself and other parties, including mining companies.
These include:
Negotiating a significant agreement requires devotion of resources

and personnel capabilities. Negotiations, particularly when getting to
convergence phase are a full-time occupation for the negotiators;
If possible, the same personnel should be involved throughout

negotiations;
Frequent and effective communications are required with

stakeholders on all sides, particularly if stakeholders interests are
carried by a representative body, and
All parties need to be seen to be supporting discussions and agreed

positions, particularly when meeting with stakeholders.
3.5 New South Wales - Adelong Agreement
The agreement, signed in September 1998, is between the Walgalu and
Wiradjuri People, The Tumut Brungle Local Aboriginal Land Council,

and Adelong Consolidated Gold Mines NL.
20
There are two agreements:
an Area Deed which covers the entire Tumut Brungle Local Aboriginal
Land Council area and a Mining Tenement Deed, an ILUA, the first one
to be registered. If a viable resource is found, the ILUA will prevail,
otherwise the Area Deed governs the relationships between the
Indigenous parties and the company.
The agreement covers mining and exploration, and relates both to native
title and heritage protection issues. The process commenced when the
company approached the Tumut Brungle Local Land Council, proposing
an agreement to enable continued exploration with a view to establishing
mining projects.
The company agreed to fund all costs relevant to the negotiations, which
were established and capped as part of a protocol reached prior to the
Agreements. Funding covered such things as any research,
accommodation, travel and sitting fees for negotiation meetings, legal
fees, and expert advice such as due diligence on the resource (such as,
assay samples to provide an independent assessment of the resource).
The original protocol took two months to negotiate, with the actual
agreements taking a further month to negotiating, although their
formalisation took some months longer.
While the NSW Land Council was involved in negotiations, only the
Tumut Brungle Local Land Council is a party to the agreement. The
company sought advice from Tumut Brungle on how best to go about
negotiations with Indigenous parties, and the Local Land Council
subsequently became responsible for ensuring all relevant people were
consulted and compliance with relevant Commonwealth and State
legislation. The Local Land Council also played a key role in providing
cultural advice to the company in relation to negotiations, assisting the
company to understand important cultural factors that affect how, when
and whether Indigenous people will discuss matters with them.
The agreements covers a range of matters:
Direct payments, including 1 million shares, and $15,000 to establish

a trust company for the Indigenous parties, Ningi Aboriginal
Corporation;
Royalties to be paid to Ningi if the operation proceeds to mining;
Heritage protection;
Exploration access;

20
Adelong Gold was subject to a dot.comcompany that was taken over by Orchid Capital. It is now in the process of being acquired by
Golden Cross Resources, which will wholly own the renamed company/project Challenger Gold.


Funds for community programs, facilities or equipment may be

applied for;
Ningi Office costs;
Scholarships for higher education;
Employment and training, including a mentoring scheme and

traineeships. The company identifies future skill needs and now has
10 young people trained and qualified in use of dump trucks,
excavators, and back hoes;
Contracting - the communities get first chance to tender, with a 10%

preference for any bid, and
Business planning, and help with purchase of equipment necessary

for successful bids.
Following the agreements signing, the company employed the former
Chairman of the Local Land Council partly to assist in implementation.
Despite the existence of implementation structures and responsibilities,
there have been disputes over the allocation of benefits. For example, in
evidence given to a Senate Committee
21
, one group of elders complained
about not receiving a share of the equity, and there have been reports of
related litigation.
3.6 Additional information
A range of additional information pertinent to agreement making was
acquired during this project. Where this might serve to illustrate
important aspects of good practice in agreement making, they have been
included in this section.
3.6.1 Ngarda Civil and Mining
This case study does not document an agreement between a mining
company and Indigenous people. Rather, it highlights a successful joint
venture between a contracting company and Indigenous groups, with a
number of features that can be regarded as best practice.
The Henry Walker Eltin Groups (HWE) involvement with Indigenous
businesses began in 1995 when Gatjil Djerkura, then of the Aboriginal
and Torres Strait Islander Commercial Development Corporation (CDC),
contacted HWE principal, Fraser Henry, about establishing a joint
contracting business in WA. Discussions took place but the joint venture
did not proceed.

21
http://www.aph.gov.au/senate/committee/ntlf_ctte/report_19/contents.htmParliamentary J oint Committee on Native Title and the
Aboriginal and Torres Strait Islander Land Fund, Nineteenth Report: Second InterimReport for the section 206(d) Inquiry - Indigenous
Land Use Agreements, chapter 7, paragraph 7.61.

At the same time, the Mt Todd gold project was being established. J ohn
Ah Kit, then heading the J awoyn Association, had discussions with HWE
about establishing a joint venture to bid for contract mining. Agreement
was reached on how the venture would operate before lawyers were
brought in to formalise arrangements. HWE was awarded the Mt Todd
contract in its own right, but had agreed that it would give 25% to the
J awoyn and 25% to CDC. The Mirrkworlk J oint Venture was then
established.
Despite the fate of the mine (ore hardness and metallurgical problems
forced its eventual closure), a relationship was established between CDC
and HWE. They now considered possible contract opportunities across
Australia.
Where an opportunity is identified, CDC negotiates with local Indigenous
people about their possible involvement. A key driver is commerciality:
any joint venture has to be commercially viable. HWE may, however,
choose to reduce its return on investment hurdle. If the project is viable,
the partners design the joint venture. They have found that it is important
to ensure that all parties understand expectations. Sometimes Indigenous
groups face a steep learning curve to understand the business. This has
potential to cause problems, but HWE tries to ensure that before any
agreement is finalised, all understand the realities and investment risks of
mining.
HWE considers that while the joint venture businesses themselves have
been largely successful, despite strenuous efforts, achievements in
Indigenous employment and training have been modest to date.
Some two years ago, a HWE operations manager recognised the
prospective benefits of establishing an enterprise that services the mining
industry and other sectors in the Pilbara. Discussions were held with
Pilbara-based ATSIC Commissioner, Terry Whitby (who also has
responsibility for the ATSIC training portfolio). Following this, talks
were held with the Ngarda Ngarli Yarndu Foundation, which brought
together several groups. CDC had been trying to establish a business
presence in the Pilbara for some time and was pleased to see such an
opportunity emerge.
Ngarda Civil and Mining (NCM) was formally established in J uly 2001.
It is a joint venture between HWE, Ngarda Ngarli Yarndu Foundation
(the Foundation), and Indigenous Business Australia (IBA - , formerly the
CDC). NCM specialises in providing contract labour and equipment hire
to the mining and construction industries. It is based in Port Hedland. Its
Board consists of six members two from each partner, and with a
General Manager and office in Port Hedland.
NCM does not focus on mining per se. Rather, it looks to take on service
roles in ancillary areas and to provide employment opportunities that suit
people with a variety of skills. To date, company support has come

primarily from BHP and WMC. NCM is seeking contracts with other
companies. Current and potential work includes:
A contract to maintain houses around Port Hedland;
Possibility of ore handling at a port from next year;
Development (and possible operation) of Austco camp for an oil and

gas construction company at Karratha, and
Mine site maintenance work

Mostly local Indigenous people are being employed. Some are already
very skilled; others are able to join and build skills. There is a variety of
work tasks and people are moved around to provide variety.
NCM uses HWE business systems and policies and procedures, adapted
to suit Ngarda. NCM is managed along the same lines as any other
HWE-run businesses, thus ensuring that clients can see that it offers
solutions with minimal risks.
HWE are now looking to replicate the Ngarda model in the Hunter
Valley, and it is reviewing its Indigenous strategy nationally in the light
of experience to date.
3.6.2 Model agreements
Cape York Model Agreement
The Cape York Land Council developed the Cape York Model
Agreement
22
with a number of objectives:
To place Aboriginal people in a position to make informed decisions

relating to proposed and existing developments;
To put Aboriginal people in as strong a position as possible to

maximise financial and non-financial benefits, and minimise costs
they incur from any activities, and
To create a process which places as much control as possible in the

hands of the traditional owners and other community members.
The model was developed by CYLC over time on the basis of practical
experience and has been used for a number of developments, including:
Cape Flattery Silica Mine (19912);
Skardon River Kaolin Project (1994);
Alcan Bauxite project agreements (1997 and 1999), and
Comalco negotiations (West Cape Coexistence Agreement 1999).

22
Description of the Cape York Model is taken largely froman article by Ciaran OFaicheallaigh, Negotiating major project agreements;
the Cape York Model , AIATSIS, 1999.

It has major advantages for developers. Its inclusive and transparent
nature minimises the possibility of any later legal or political disputes ...
and diminishes uncertainty. The model envisages bipartite agreements,
although Government co-operation is needed to implement the terms of
agreements. However, Government involvement occurs after the main
components of the agreements have been negotiated.
OFaicheallaigh emphasises that development of the model does not
suggest a single best practice approach for project negotiations, nor is
there an implication that it should be adopted universally. Indeed, the
opposite is the case given the great variety of contexts in which
Indigenous people find themselves, the range of projects about which
Indigenous groups have to negotiate and the diverse objectives they may
wish to pursue.
The Cape York Model envisages seven stages:
1) Initiation of process;
2) Creating framework for negotiations;
a) Steering Committee broadly based
b) CYLC Negotiating team advice and technical support
c) MOU the rules of the game (helps to avoid difficulties and
tension later in the process by ensuring that the parties have
common expectations and an agreed upon set of rules from the
outset.)
3) Information gathering and community consultation:
a) Anthropological work (to ensure that the CYLC has correctly
identified the full range of interests affected by a project, ... and
that these are represented on the steering committee, also
provides basis for warranting an agreement)
b) Economic and social impact (extent to which Aboriginal people
have shared in economic benefits generated by major projects
and identify ways that these can be enhanced; social impact
should be undertaken by NTRB, with direct involvement of
steering committee)
c) Other studies;
4) Establishing a negotiating position establishes the position the
community wishes to put to the company, serves as a bench mark for
conduct of negotiations and eventual agreement;
5) Conduct of negotiations and agreement in principle;
6) Endorsement and signature of final agreement, and
7) Implementation (attention to implementation early in the process;
agreement should contain some of the fundamental requirements to

ensure effective implementation, provisions should be unambiguous
and concrete yet flexible; funding of implementation activities and
initiatives; structures (such as joint Aboriginal community mining
company co-ordination committees) whose primary purpose is to
ensure that implementation occurs as planned.
The processes under the Model Agreement are necessarily resource
intensive, acknowledging that the task of achieving informed consent to a
development proposal can be expensive. Indigenous organisations,
including NTRBs and native title bodies corporate are not generally
funded to undertake negotiations and so alternative sources are necessary.
Usually a company will be required to provide resources, although there
may be other sources for particular negotiations, including
Commonwealth agencies and State Governments (particularly when
negotiations relate to exploration protocols).
Similarly, the model promotes a realistic approach to timeframes for
negotiations. Those specified for the right to negotiate provisions of the
NTA are not always amenable to attain community consent, and may
need to be extended by mutual agreement. Timeframes are often
necessarily long, which can result in difficulties from companies wanting
to start new mines, linked to specific market opportunities, tight
construction deadlines, but not to companies expanding current
operations.
4. Good pr ac t i c e
This and the following chapters describe what the studys findings
indicate to be good practice in reaching sustainable agreements. They do
not provide a step-by-step set of actions to take when embarking on
agreement making, as there are too many possible scenarios to attempt
that. Rather, they describe processes and principles that should assist,
particularly for parties wishing to negotiate agreements in areas where
they have no previous experience, or where their previous experience has
not produced acceptable long-term outcomes. The good practices apply to
all parties in the agreement negotiation and implementation processes.
There are three important considerations to reaching sustainable and
durable agreements:
Negotiation process
Content, and
Implementation.
Attention to each is crucial to whether an agreement eventually delivers
positive and sustainable outcomes. Failure to reach an agreement can
spell an end to a promising project, just as failure to reach agreement with
financiers can. Compliance with native title, land rights and Indigenous
heritage legislation brings considerable challenges to miners and
explorers, as well as Indigenous parties. Many of these require prior

agreement with Indigenous parties before regulatory approval can be
provided. Negotiated rather than litigated resolution is almost always a
cheaper course, as well as being more likely to produce constructive and
mutually beneficial relationships. Under principles of common law, an
agreement can effectively be defined as a contract, with parties having
mutual legal rights and obligations. These rights and obligations form the
core element of agreements.
4.1 Process - Starting out
In many instances, claimants are inexperienced in what constitutes native
title and the rights and socio-economic outcomes it can deliver. In the
case of negotiations, there is often a level of uncertainty about how an
Indigenous community can move towards a mutually beneficial
relationship with the mining industry, when there may have been a degree
of tension in the past.
This is one important reason why issues of process are a crucial part of
reaching a sustainable agreement. There is a range of legal and cultural
considerations to be considered before effective negotiations can
commence.
4.2 Nati ve Title Representati ve Bodies
In discussing the role of NTRBs in the agreement making process, it is
important this paper acknowledges that some companies have had poor
past relationships with various NTRBs and Land Councils. A number of
company respondents to the survey instruments were critical of specific
NTRBs, and described problems that they believed had a detrimental
impact on their past efforts to negotiate. It should also be noted that a
number of NTRBs were also equally critical of the methods, attitudes and
approaches of specific mining companies. But while being aware of these
concerns, this report seeks to present a positive view of the key functional
relationships required for agreement making, and encourage parties to
develop long-term co-operative arrangements to facilitate the reaching of
agreements.
The following sections sets out the roles and functions of NTRBs under
the current legislative regime. The aim is to inform particularly mining
interests about NTRBs, and in particular to emphasise their significant
powers and responsibilities under the NTA. The 1998 amendments to the
NTA in relation to NTRBs are described in some detail, as it is important
that mining interests understand that the Act assigns them a central role in
the native title system. In our view, these legislative provisions make it
imperative that mining companies and NTRBs seek to engage
constructively and make all efforts to do so.
Perhaps the first issue facing companies seeking to make agreements is
determining with whom they should engage. There are several options:

legal or other professional advisers/consultants, direct approaches to the
Indigenous community/communities thought to be appropriate in the
circumstances, land councils or NTRBs. While the decision will to an
extent depend on the relevant legislation, in the current environment the
first contact point for mining companies should normally be the relevant
NTRB.
Some of the reasons for approaching NTRBs involve the changes to the
statutory functions of NTRBs brought by the amended NTA
23
. These
changes mean that:
There are now 20 NTRBs, funded by ATSIC, operating in each

Australian region with the exception of Tasmania and the ACT;
NTRBs have defined statutory functions under the NTA. A number

of NTRBs, notably those in the NT and NSW also have functions
under Commonwealth or State land rights legislation.
There is now only one NTRB for each area;
NTRBs have sole responsibility for assisting claimant groups in their

area of jurisdiction. This does not mean that NTRBs assist all claims,
but that they are solely responsible for allocating financial and other
assistance provided by the Commonwealth for native title. In each
NTRB area, there will be some native title groups that are assisted by
private interests and operate outside the ambit of the NTRB.
However, in some areas, the NTRB represents and assists the
majority of claimant groups.
4.2.1 Facilitation, assistance and certification
The facilitation and assistance functions of NTRBs make them an
integral part of the process of negotiating agreements about mining and
exploration. This function requires NTRBs to provide assistance to native
title claimants in their area of jurisdiction in the management of their
claims and associated activity, including future acts and negotiating
ILUAs. While claimant groups are not obliged to seek the assistance of
their NTRB, most have a procedure for groups to apply for assistance to
the governing committee of the NTRB. Terms and conditions may be set
by the NTRB for provision of assistance. For example, the Yamatji Land
and Sea Council (YLSC), the NTRB for the Murchison, Gascoyne and
Pilbara regions of WA, considers a number of criteria in its decision
making about provision of assistance:
Whether the claim falls wholly or partly within the jurisdiction of the
YLSC;

23
See Attachment A5, Native Title Representative Body functions under the Native Title Act .

Whether the claim is inclusive, that is, the claimant group includes all
persons with native title rights or interests in the land or waters in
question;
Whether the claim is representative, and listed applicants are

authorised by the broad native title claimant group to seek
determination of native title;
Whether there is evidence to show that the native title claimant group
is the appropriate level of community to hold native title;
Whether the claim is supported by anthropological and historical

evidence, and
Whether there is legal advice that the claim meets requirements of the
NNTT registration test and has a good chance of successful
determination under the provisions of the NTA.
24

Assistance is usually in the form of service provision, including legal
advice and management, research, fieldwork, and facilitation of meetings.
Cash grants are rarely given by NTRBs for any of these purposes.
Native title claimant groups who choose not to seek representation from
their NTRB, sometimes use private sources, including under agreements
with mining companies, to fund their native title claims.
The level of coverage by NTRBs varies considerably from region to
region. In some areas, such as the Kimberley, Pilbara and Murchison-
Gascoyne, the KLC and YLSC (NTRBs for these areas) represent the vast
majority of claimant groups, while in others such as New South Wales,
the majority of claimant groups are privately represented (although the
New South Wales Land Council (NSWLC) represents a number of
significant claims in the State)
25
.
If the claimants are represented by a NTRB, inquiries should be directed
to that organisation. It is rarely good practice to meet claimants
individually (or in an ad hoc manner). Such meetings can be counter-
productive if they cause resentment in the community if some people feel
they have been excluded from the process. While there may well be
claimants who for various reasons do not wish to deal with the local
NTRB, it can prove costly to try to exclude a NTRB from negotiation
processes involving agreements. There may be multiple claimant groups
with native title interests in a particular development, and some of these
may be represented by the NTRB. Since NTRBs have a number of
functions requiring them to be sources of information, as well as to

24
This information is taken fromthe Annual Report 2000/2001 of the YLSC.
25
The web-site of the NNTT (Snapshot) records existing claims in each State, including their
current status and representationsee www.nntt.gov.au


develop community information strategies about native title in their
region, they can make a useful contribution to the processes. This can be
the case, even if they do not directly represent claimant groups in relation
to a mining development.
NTRBs can be a vital first point of contact and valuable source of
information for companies intending to do business in their region. In
addition, NTRBs have other functions directly relevant to the business of
agreement making, such as the certification function
Under section 203BE(2) of the NTA, a NTRB may certify an application
for determination of native title if it is satisfied that:
All claimants authorise an application for determination of native

title, and authorise the named applicant(s) to deal with matters arising
from the proposed claim;
Reasonable efforts have been made to ensure that an application

identifies all members of a claimant group, and
Reasonable effort has been made to achieve agreement between

overlapping claimants, and to minimise the number of applications
over an area of land or waters.
Similarly, a NTRB is required under s. 203BE(5) of the NTA to certify
Indigenous Land Use Agreements, provided that:
Reasonable effort has been made to ensure that all potential native
title holders have been identified, and
All relevant people authorise the registration of an ILUA.

4.2.2 Good practice NTRBs
While some companies have expressed concerns over the role and
functions of NTRBs, these fears are not necessarily borne out in practice.
Many NTRBs offer sound service delivery on very small budgets, as well
as extensive representational structures through their elected governing
committees
26
and, as such, offer considerable potential as a vehicle for
comprehensive consultation. Many also have effective regional
administrative structures, with offices in some regional and smaller
towns.
There is evidence of a shift in the attitude of a significant number of
NTRBs towards miners and reaching agreements in relation to native
title. This also reflects an increasing acceptance by the industry that
native title is an inherent part of the Australian legal system, and that it is
important to engage with native title parties.

26
Some NTRBs were established before the NTA under other legislation, notably the Commonwealth and NSW Land Rights Acts. The
majority of NTRBs are incorporated under the Aboriginal Councils and Associations Act, in which elected governing committees
exercise responsibility.

Since NTRBs have important functions under the NTA, and in most
regions are also the primary source of advice and support for native title
claimant groups, we consider that the development of functional
relationships between the mining industry and Indigenous groups should
wherever possible include NTRBs.
Since the passage of the NTA, and particularly under the1998
amendments, stringent accountability provisions for their use of public
monies have governed NTRBs. NTRBs are required under the NTA to be
fully accountable for their funding. As well as quarterly financial reports
to ATSIC, they are also required to prepare strategic plans for approval
by the Commonwealth Minister for Indigenous Affairs, and annual
reports for tabling as public documents. In addition, they are required to
develop procedures for internal review of their decisions, and to have
transparent and open decision-making processes. It is also likely that
NTRBs are subject to the provisions of the Administrative Decisions
Judicial Review Act (ADJ R) in the performance of their functions.
After nearly eight years of the NTA, some NTRBs have adopted
structures, policies and procedures that can assist in an efficient approach
to agreement making. For example:
In some areas, claimant groups are represented by a smaller group

usually chosen by the broad community of native title applicants,
with responsibility for working closely with the NTRB to advance
the claim, and manage its activity, including dealings with mining
interests, as required under the future act regime, or in the negotiation
of agreements. Often these smaller structures are known as native
title working groups, or native title management committees.
Different claimant groups define their own rules when it comes to the
selection of the group, but they are often based on family
representation. This can work to ensure that there is a degree of
equity in the decision making process.
Some NTRBs have established regional or local area Elders

Councils, authorised by traditional law or by the community to make
decisions on their behalf. Such bodies are valuable in ensuring that
senior law people are involved in native title matters. In addition,
they may be invaluable in the resolution of disputes on a variety of
matters that are directly or indirectly linked to native title
27
.
An NTRB may seek to engage a full time employee to ensure that

negotiations in relation to a proposed agreement are conducted in a
timely and efficient manner. If securing agreement is a matter of
priority for a mining company, then it is possible that a company may

27
A Pilbara Elders Advisory Council functions in close co-operation with the NTRB in the Pilbara. In the Kimberley, the Kimberley
Aboriginal Law and Culture Centre is a structure that facilitates the involvement of senior men and women in decision-making on a
range of matters. In each case, contact in relation to mining matters should be through the NTRB.

have to foot the bill by providing the resources to the NTRB to
employ suitable consultants to facilitate the process.
NTRBs may also be prepared to work with external consultants, to

ensure that the best possible outcome can be derived. Most NTRBs
maintain a register of skilled and experienced consultants in a range
of disciplines, including the law, ethnography, land use and land
management.
In relation to exploration activities, which are usually smaller-scale

operations than mining, most NTRBs have developed standard
approaches. This provides a measure of certainty to industry and the
claimants when heritage matters need to be addressed. In any event,
heritage protection is often one of the first issues to be addressed in
the context of a larger agreement.
4.3 Consultation strategies
Consultation strategies will largely be determined by the scope of the
project, the social and economic circumstances of Indigenous
stakeholders, characteristics of the region, as well as the financial
resources of the proponent. For large projects with a broad impact area, it
may be necessary to undertake a staged consultation process, including
meetings with NTRBs and other representative organisations, which can
advise on appropriate consultation strategies. Consultations may include
small and large meetings, attendance at native title working groups, and
bush meetings in some areas. Consultation over smaller scale projects
may be satisfied through dealings with the NTRB, a native title claim
working group, or larger community meeting.
4.3.1 Community meetings
The main rules of Indigenous consultation over mining projects are that
clear and effective channels of communication are opened and
maintained, and that all stakeholders are aware of these channels and feel
comfortable in using them.
Open community meetings are often an effective method of initiating this
process of communication, but setting up functional meetings can be an
art in itself. Companies should be prepared to seek advice from
Indigenous organisations such as NTRBs about appropriate ways of
setting up meetings. In many circumstances, NTRBs will be prepared to
assist, given appropriate levels of funding support for this purpose by the
company. In general, company representatives should be aware that, as
with any meeting, first impressions are important. If company
representatives are clearly prepared to acknowledge and abide by
community values and practices, this will go a long way to getting
negotiations off on the right footing.

In planning community meetings, a number of matters will need to be
considered:
Setting a time and a place for meetings. Advice on suitable venues

should be sought from the NTRB or other representative
organisation. In many places, Indigenous stakeholders may use
traditional meeting places for meetings, often (though not always) in
bush locations. The timing of meetings is not always straightforward,
and even with the best possible planning, meetings can be cancelled
at the last minute, often to the intense frustration of some of the
parties. It is not always recognised that Indigenous communities can
be very busy places, and that key people in negotiations often have
other important cultural and family obligations, as well as demands
on their time from other priorities, including community
management, meetings with other agencies, and so on.
The meeting should be publicised exhaustively, not only the fact that
it is taking place, but also what it is about. Written information,
including letters or advertisements are useful in some situations, but
often direct contact is more effective. Companies may need to
consider short term employment of liaison people from the
community, whose job it is to travel to stakeholder communities to
inform people of the meeting.
Companies should make efforts to develop clear presentations on

their development plans. Advice on appropriate ways of presenting
information may be sought from NTRBs or other organisations, but
as a rule graphic or visual information is effective, while speakers
should be prepared to present information in clear language, avoiding
use of technical terminology or use of high English. In some
situations, interpreters may be necessary, the use of which requires
detailed planning before the meeting.
It is important to recognise that most meeting participants have

extremely limited financial resources, and it will usually be necessary
to provide food and refreshments for meeting participants,
particularly if the meeting takes place in an isolated setting. Travel
allowance or at least reimbursement of fuel and other travel costs will
generally be necessary.
Seek advice from the NTRB or other organisation on the meeting

procedure. It will, for example rarely be appropriate for company
representatives to chair or facilitate meetings, and an independent or
community-chosen person should be sought for this role. Company
representatives will usually be required for specific presentations and
to answer questions, but will need to be prepared for possibly long
periods when they are excluded from the meeting to allow for private
community discussion. Company representatives attending
community meetings should be prepared for long periods where they
sit on the sidelines, and wait to be called into the meeting.

Be aware of cultural protocols in the conduct of meetings. In many

places, a senior traditional owner will be called on to open the
meeting, and it is becoming universal practice for speakers at
meetings to acknowledge the traditional owners on whose land the
meeting is taking place. Similarly, visitors should refrain from
mentioning names of deceased people, although compliance with this
cultural practice varies from region to region. Speakers should also
avoid reference to hearsay or gossip to support their views or detract
from those of others.
Other issues to consider include:
Community meetings may provide an early opportunity for a

negotiation team to be chosen.
It is important that as much time as possible is set aside to discuss
the issue and decide who may represent the community in
negotiations. This may entail the meeting lasting for a couple of
days.
The meeting, if properly resourced and convened, will provide the

first opportunity to establish the foundations of a relationship
between the community and the mining company.
While there are considerable regional differences in Indigenous
populations, there are certain practices that should universally be avoided:
When the mining company representative/negotiator talks to the

traditional owners he or she should endeavour to speak in simple
terms. A common complaint from Indigenous communities and
NTRBs is that the language used is too technical and not easily
understood by community participants. In the event that the
traditional owners still speak their own language(s) fluently, the
utilisation of an interpreter will improve the level of understanding
significantly.
Do not interpret silence from the meeting as an indication that your

ideas have been accepted, understood and agreed to. Quite often,
Aboriginal peoples are ashamed to admit that they do not understand
something; they may well want to discuss these issues at a later time,
in a manner that is more culturally appropriate.
When an agreement is of significant size and scale to the extent that

there are several different tribal groups, a large community meeting
where they are all present should be avoided initially, unless each of
the groups has previously agreed to hold joint meetings. Best practice
is to hold separate meetings with individual groups first, so that each
group is aware of how their rights and interests are going to be
affected. They will then be in a better position to determine how the
mining activity will affect their country.
One of the main points that came out of the interviews for this study
is that Indigenous people do not like to be pressured by time

constraints. This may mean that a meeting will run over the course of
a few days. This does not mean that the mining company
representatives have to be there for the entire period, although it may
prove advantageous if a representative remains on site to answer
questions or clarify issues.
4.4 The importance of corporate culture
It is important that in deciding to enter negotiations to reach agreement on
a mining project, a company be explicitly and clearly committed to such a
course of action, and that the approach has the unambiguous support of
company leaders. Negotiations with Indigenous stakeholders are rarely
easy, and many problems and pitfalls may emerge that challenge the
values and established practices of people more accustomed to operating
in the corporate boardroom. Once the decision to negotiate is taken, the
company should be prepared to follow this through, and accept the
frustrations and difficulties that will inevitably follow. If Indigenous
parties can see that a company is acting in good faith, that they are valued
negotiating partners, and that an agreement is sought for reasons of
mutual benefit, the chances of an effective and sustainable agreement will
increase.
Conversely, if there is a perception that a company is negotiating because
it has no other option, or there is a feeling that negotiations are not in
good faith, then the path to successful agreement will be more difficult.
It is the case that many companies will find themselves in the position of
having to convince a sceptical audience of their good faith. This will
often be for historical reasons, and long experience of communities
feeling they have been done over by mining companies. Many
Indigenous people have negative experiences of mining, and it is
important for company people to acknowledge and understand this. After
all, it is only very recently that agreement-making between Indigenous
people and mining companies has become a reality. The experience of
many, particularly older Indigenous people is one of no consultation and
no involvement in mining projects, of finding one day that they no longer
have access to traditional lands, or that sites of significance have been
destroyed.
None of this is to suggest that problems exist only on one side. Some
companies, despite approaching negotiations from a position of sincere
good will and faith have found themselves the centre of inter-community
strife, and have felt badly let them down by their experience, often in a
costly manner.
The challenge to companies is similar to that for NTRBs: to move
forward and to find ways of working constructively across these
experiences and divides.

4.5 Negotiation methods
Many mining company people have substantial experience in negotiation.
However, much of this is irrelevant and may also be counter-productive
in an Indigenous setting. Alternative approaches to negotiating need to be
considered seriously by mining companies, as in an Indigenous context,
and particularly where issues of native title are concerned, the aim of
negotiations is not to screw the other party to the ground, but to find
common ground, and arrive at mutually beneficial solutions to common
challenges.
4.5.1 Native title claimants
One of the most difficult areas for companies is addressing the nature of
the party with whom they are trying to negotiate a settlement. This
difficulty stems from native title being a communal right, It is, therefore,
essential that the claimant community as a whole share any benefits that
flow from an agreement. Given this, good practice would initially entail
full community involvement before negotiations commence. There are
several important considerations in this regard.
Identifying the right peopl e
It is vital that mining companies engage with the right people in seeking
to negotiate a durable agreement. Failure to include all people who may
have a native title interest may have a negative long-term impact on the
viability of an agreement, resulting in possible later challenges, or
unwillingness to certify by a NTRB.
For this reason, the relevant NTRB is usually the best starting point, as it
can in most cases provide accurate information on the native title-holders
or claimants and other Indigenous stakeholders in a project. Even if the
NTRB does not represent all native title parties, it will usually hold
information of relevance to the exercise. It may be necessary for a
company to be prepared to provide resources for comprehensive
identification of all relevant parties. However, where a NTRB has already
undertaken ethnographic research, this information may be available to a
company.
Accurate knowledge of probable native title parties to an agreement will
assist a company to consult effectively in relation to a project, and will
also give clear indications of the likely composition of negotiating groups
for later stages of the process.
Timeframes for accurate identification of Indigenous stakeholders depend
on the level and availability of existing information. Companies need to
recognise that such information often includes confidential cultural
materials that are held by a NTRB on that basis. Therefore, companies
should not expect to be supplied with information that may be used as
evidence to argue for a subsequent determination of native title, or other

important elements of native title management, including information
about competing native title claims.
While a NTRB may be a key participant in the agreement-making
process, there may be other Indigenous organisations in the area that
should be taken into account. For example, ATSIC regional councils,
which are elected by Indigenous people for each region in Australia, have
significant responsibilities not only in relation to ATSIC and other
Commonwealth programs, but also as important consultative forums for a
range of issues. Furthermore, regional councils can often provide
information on employment and training schemes, important community
issues and priorities, as well as non-native title issues with the potential to
impact on the development. Thus, the potential to develop linkages
between the proposed development and other community programs and
strategies may be enhanced through early contact with a regional council.
Other government or non-government organisations may also be
consulted, including:
State agencies with responsibility for Indigenous issues or heritage

protection;
Indigenous community councils;
Community Development Employment Program (CDEP)

organisations.
4.5.2 Negotiation teams and training
In most of the agreements in the case studies, representative Indigenous
negotiating teams had responsibility for carrying negotiations on behalf of
the wider community. In these cases, they held this responsibility on the
basis that regular communications were maintained, and that the wider
community retained responsibility for signing off.
However, companies need to be aware that the fact that a negotiation
team has been selected after one or two meetings does not necessarily
mean that it will have the experience or capacity to carry out negotiations
in an effective manner. A number of issues may need to be considered
once a negotiating team has been established:
Has the negotiation team any experience of negotiating agreements?

If not, does this produce problems and if so, how can these be
addressed?
Previous negotiation experience is invaluable in reaching effective

agreements, the overriding factor being a familiarity with the
negotiation process. This can ensure a more even playing field for all
stakeholders.
In one of the agreements examined, the leading Indigenous
negotiator had substantial experience in dispute resolution and
negotiation in a commercial environment. Interestingly, a very

good deal for both parties was reached in a relatively short time
frame, given the scope of the agreement.
This is an example of good practice by claimants who elected a
representative already highly skilled in the negotiation process.
By having people with relevant expertise in the negotiation phase,
claimants may be assured that they are more likely to achieve the
best possible deal.
In situations where the community does not have access to

experienced negotiators, companies need to consider whether it is in
everyones interests to facilitate training.
Ideally workshops conducted by a neutral party in a culturally
sensitive manner would constitute best practice n relation to
providing training to claimants in negotiation protocols and
techniques. This offers significant advantages to both the
company and the claimants.
Having access to appropriately trained negotiators can place the

community in a better position to understand the complexities and
expense of conducting mining activities, while at the same time
ensuring that they do not feel they are being ripped off.
The company is more likely to enjoy a good relationship with the

claimants, because there has now been a significant commitment by
them to ensure that the negotiation teams are on equal footings.
The company can be reasonably sure that once the agreement is

signed, it will be much more widely accepted as fair by the
Indigenous parties. This will in turn save a lot of bad publicity and
feeling being directed at the company, which is often the case when
the process part of the agreement is perceived as having been handled
unfairly.
4.5.3 Subsidiary agreements
Because mining agreements, particularly for major projects, may be very
broad in terms of their content and potential implications for Indigenous
parties, it may be useful to break down the process to allow for subsidiary
agreements. As well as making the process digestible for stakeholders,
subsidiary agreements may also:
Allow for urgent matters, for example heritage protection, to be dealt

with quickly, allowing a longer time frame for negotiation of the
substantive agreement;
Give the parties a sense of achievement, that the negotiations are

getting somewhere, and allowing participants to report progress to
their constituencies;
Allow the parties to report back to their constituencies, and gain their
approval for decisions taken, and to authorise future directions.

A number of the major agreements examined for this project used
subsidiary agreements for some of these reasons including:
An initial MOU between a company and major Indigenous

organisation(s), such as a NTRB, stating the objectives of the parties,
and committing them to seek to resolve issues through negotiation.
An initial MOU might also detail financial arrangements for
preliminary investigations to be undertaken, and
The use of a Heads of Agreement document (sometimes also

referred to as a Framework Agreement, or a MOU) as a preliminary
agreement prior to the start of formal negotiations. A Heads of
Agreement may be entered following preliminary investigation by
the company and other parties, where Indigenous interests have been
identified and the potential impact of the development is known
A heads of agreement document may set out:
The parties to negotiations;
Financial and personnel arrangements;
When and where negotiations are to take place;
Timeframes;
The negotiation methodology, and
Issues to be negotiated.
Such an agreement, as well as defining the negotiation process, may also
serve as a point of reference and as a means of evaluating the progress of
subsequent negotiations.
Once the parties have reached substantive agreement, it is vital for its
durability that its terms are agreed to and supported by the wider
constituency. A number of the agreements examined by this project drew
up comprehensive MOUs following agreement, which were then used to
inform the wider group, and to gain their formal consent to the terms of
agreement. The documents can also double as drafting instructions for the
formal agreement.
4.6 Impact of the development
As with the need for accurate information on Indigenous stakeholders,
clear and relevant information on the development and its potential
impact will often have a direct influence on subsequent negotiations, and
the durability of an agreement. The availability of appropriate
information and effective strategies to deliver this to Indigenous
stakeholders at an early stage of a project may well save a company from
trouble further down the line.
J ust as companies may have preconceptions about an Indigenous
community, members of the Indigenous community may sometimes have
preconceptions about the company, the project or mining activity in

general. Efforts by the company to inform stakeholders about the project
proposal through a comprehensive consultation process will go a long
way towards dispelling misinformation and innuendo on both sides. An
information strategy should be designed to open channels of
communication, to allow Indigenous people the scope to consider the
proposal, how it may affect them and their communities, and how to
obtain further information.
Companies should aim to ensure that assessments of likely social and
environmental impacts of a proposed development explicitly examine
issues perceived by the Indigenous community as important. This may
well require active participation in research by Indigenous stakeholders as
well as involvement of specialist researchers.
It is vitally important that clear information be given to Indigenous
stakeholders about the financial elements of a project, so that they can
begin to appreciate its economic and commercial characteristics. In some
cases, it may be useful for a company to provide funds to Indigenous
parties for independent economic evaluation of their project plans.
An effective information strategy will provide Indigenous stakeholders
with a clear idea about how their rights and interests are likely to be
enhanced or diminished. It can, therefore, have an impact on subsequent
negotiations.
4.7 Appropriate financial support
In theory, a best practice approach to agreement making should not
depend on the financial resources of the proponent. However, it many
cases it will be necessary for companies to allocate resources to the
negotiation process, particularly if there are tight time frames to get a
project to the production stage. In this context, the limited budgets and
high functional workloads of most Indigenous organisations, including
NTRBs, are important considerations for companies.
Companies may need to provide financial support for a number of
elements of the negotiation process, including:
Conduct of heritage surveys to obtain the necessary clearances;
Elements of the consultation process, including contributions to bush

community meetings;
Studies to identify comprehensively Indigenous stakeholders;
Information dissemination about a project;
Independent legal advice;
Independent advice in other areas, including anthropology,

community planning and development, establishment and
management of trusts, and other financial advice in relation to
compensatory mechanisms;

Costs of negotiations, including independent facilitation and meeting

costs.
Actual levels of financial support will need to be negotiated with
representatives of the Indigenous stakeholders, such as NTRBs. In some
instances, particularly for major project negotiations, other avenues of
financial support may be available through the Commonwealth including
ATSIC and the Attorney Generals Department. State Government
support may also be available for some negotiations, particularly where
these relate to access protocols, and gaining the necessary approvals for
exploration or mining projects.

5. Cont ent
Definitive assessment of what may constitute best practice in relation to
the content of mining agreements should be the subject of a separate
study, involving commercial, economic, legal and social analysis of
existing agreements, in the context of the NTA and other relevant
Commonwealth and State legislation. In any case, the circumstances of
mines vary so much that to be overly prescriptive would not be helpful to
companies or Indigenous communities. What follows, therefore, are some
summary thoughts on desirable provisions in agreements between
companies and Indigenous interests in relation to the development of
mines. They comprise those elements most common to both the case
studies and the database.
The provisions in an agreement will vary depending on the size and scope
of the mining project. In larger scale agreements, content may vary
according to geographic, demographic features, and social and cultural
values.
5.1 Employment, education and training
There is reasonable evidence that employment of Indigenous stakeholders
may significantly enhance the relationship between Indigenous
communities and a mining company. We found that there is a view that,
as a result of Indigenous employment, the us against them attitudes have
been eroded, and in some cases relationships had improved considerably.
From the perspective of mining companies, the use of a local workforce
can produce benefits including for projects that operate on a fly in, fly out
basis There is also State and Commonwealth funding available for
training and employment programs. Similarly, many Indigenous
communities have access to the Community Development Employment
Program (CDEP) that can, in effect operate as a wage subsidy program to
complement employment and training initiatives. It may be possible for
companies to enter arrangements with local CDEP schemes to initiate
Indigenous employment and training strategies in support of mining
projects.
We found a cynicism from Indigenous communities and NTRBs about
the level of commitment of mining companies to fulfilling quotas in
relation to the employment of Aboriginal staff. Some agreements include
clauses relating to employment and training. These are often phrased in
similar terms to: The company will use its best endeavours to employ
25% of the workforce from the Indigenous community, provided they
have the appropriate qualifications or expertise.

Such pre-requisites mean that job opportunities will be limited or non-
existent for many Indigenous peoples. The Government at an all inclusive
level, ATSIC, the mining company and importantly the Indigenous
communities need to examine options in relation to training and skills
development to be proficient at whatever employment they undertake in
the relevant mining activity.
It needs to be acknowledged that there has been very limited success with
mining company employment of Indigenous people. We are reluctant to
suggest what may constitute good practice here in light of the lack of
sustained success. There are some pointers, however, to what might be
features with the potential to succeed where others have failed. These
include structured step-by-step approaches combined with very close
mentoring and monitoring, clear incentives built into each step, and heavy
involvement of both mine management and the community in selection of
candidates. A further essential pre-requisite is training, not just in mine-
related skills, but basic life skills including money management, making
commitments, literacy and numeracy, health and hygiene.
It has been said that if every provision in relation to Indigenous
employment in agreements between mining companies and Indigenous
groups were implemented, there would be very few unemployed
Aboriginal people. There are a number of factors however, that act as
barriers to this being realised:
A basic requirement of any employment position is that the job

applicant either has had previous experience or has the appropriate
qualifications. These are often factors that many Aboriginal peoples
do not possess due to their socio-economic position.
Mining projects in the start up phase normally require an injection of

significant amounts of capital. In order to recover this investment as
quickly as possible, the project needs to be operating at 100% in a
very short time frame. This fact works against the employment of
unskilled labour in the short term at least.
Aboriginal peoples often have cultural obligations that may prevent

them from attending work on some occasions; this often discourages
prospective employers, who normally need to fill shift quotas in order
to maintain production levels.
There are a number of companies that specialise in delivering training to
Aboriginal people especially in the area of plant operators; mining
companies who engage in best practice utilise their services to deliver
training that is practical and culturally appropriate.
5.1.1 Education
The mining industry is often held primarily responsible for training and
employment of Aboriginal people in areas where it operates. There are
some training and employment success stories around Australia, but

stakeholders generally agree that many programs fall short of their
aspirations.
A key reason for this is that numeracy and literacy levels are often so low
that many people do not have the basic skills that enable them to be
trained to work safely and effectively. While in some regions there are
also social and geographic issues that militate against training and
employment of Aboriginal people, lack of literacy and numeracy skills
are usually identified as a primary reason why Indigenous training and
employment levels have not met the expectations of miners, Indigenous
people or the wider community.
While many mining operations have literacy programs for all workers
who need to develop these basic skills, miners understandably feel that
the education system has responsibility to develop adequate literacy and
numeracy skills in all students regardless of their location.
There are many reasons for the poor record of Aboriginal education
including:
Remoteness and social issues leading to low aspiration levels;
Lack of skilled and motivated teachers in Aboriginal schools, and
Inappropriate curricula that are both de-motivating and do not equip

young Indigenous people adequately to move into training programs.
These and other education issues need to be addressed to ensure more
young Indigenous people possess the skills, knowledge and self-discipline
to enable them to move into successful training and employment. These
are not just State Government responsibilities, but social issues and
responsibilities of the wider community. It is not just a matter of
providing teachers who are trained and motivated to instil learning among
Indigenous students (often in remote localities), but also a question of
community empowerment.
In terms of the roles mining companies can play, it is not a panacea to
suggest that mining companies should substitute for governments. Mining
companies can and do involve themselves in education and training
28
.
However, mining companies often operate training in isolation from each
other, sometimes because they are required to do so under agreements
with Indigenous groups, or because of their location and/or a lack of
alternative training.
Universally, there appear to be more training and employment places for
Indigenous people than there are people to fill them. Indigenous people

28
For example, Rio Tintos involvement in 3 separate arrangements, 2 of which operate at all of its business unit sites and the third a
partnership with the Alice Springs Centre for Appropriate Technology (CAT). Rio has an MOU and a contract with the Department of
Education Training and Yourth Affairs; the MOU is to support education and training that leads to employment outcomes for Indigenous
people; and the contract involves Rio providing mentor coordinators and prevocational training. The CAT partnership runs a week-long
science and technology school to encourage year 9 students to continue at school. Rio also provides fellowships for its employees to
work on CAT projects in remote locations.

from regions well away from a mine often take training and employment
places that cannot be filled locally.
Despite these issues, the mining industry is often blamed for the shortfalls
in Indigenous training and employment. Some in the industry contend
that responsibility for training should be moved away from individual
miners and contractors and more centralised training be provided on a fee
for service basis. Others believe that competition between companies in
training is healthy.
There is currently a proposal in Western Australia for a training
organisation to induct, train and supply skilled Indigenous people to work
in the mining industry. A number of industry people believe there is a
wider opportunity to pool training skills and access government funding,
possibly in a commercial training operation, run by commercial people,
not training officials.
There is some argument that education may well constitute the best
mechanism for Indigenous peoples improving their socio-economic
position in wider society. In terms of agreement making, an example of
good practice is to include in agreements provisions for the
encouragement of school attendance as well as concrete assistance to do
so in the form of scholarships for secondary as well as tertiary education.
These provisions would need to be administered in the same fashion as
other community benefits provided through agreements such as via a
trust.
5.2 Compensation
The management and dispersal of compensatory payment is usually an
extremely delicate issue in any agreement. There are several
considerations to take into account including:
Have the rightful traditional owners been identified, and if so how?

This identification must be via a thorough and transparent process. In
some cases the community will identify the traditional owners
according to law and custom, or the NTRB in conjunction with the
mining company may undertake an anthropological study for this
purpose. Best practice may be a combination of the two.
If a trust is set up to handle the investment or dispersal of the funds,

have the trustees been elected by the community, and just as
importantly do they have the skills and expertise to ensure that they
are acting in compliance with statutory requirements such as
corporation law?
Trustees need to be educated in relation to what constitutes a
conflict of interest and what their roles and responsibilities are as
trustees.

In one agreement, a co-ordinating committee was established to

ensure that the agreement was implemented in a responsible and
sustainable matter:
Given the responsibility that they carry, it is vitally important that
trust managers have the appropriate skills and knowledge to fulfil
their role in a professional manner. Agreements, therefore, need
to contemplate how these skills are to be acquired.
Best practice would also indicate that agreements should include

transparent accountability mechanisms for any compensation
payments made, with respect to the handling of funds to be held in
trust by a NTRB.
5.3 Royalties or equity
The issue of royalties and equity is contentious both to mining companies
and claimants in terms of what is the best option. In reality the best option
is probably one that allows for both, although this is not generally the
case, with companies being extremely cautious when it comes to equity
arrangements, preferring in the main to pay compensation in the form of
royalty payments.
However, the concept of an equity arrangement should not be dismissed,
as it may provide significant advantages to the mining company as well
as the claimants. The fact that, in an equity arrangement, the liabilities are
shared means that in a market of depressed resource prices, companies
may well not make a profit in a financial year and, as a result, may not
have to expend money that they do not have on royalty payments for a
product that is making a loss.
On the flip side of the coin, if there is an equity agreement in place, it is
more likely that a close partnership relationship between the community
and the mining company will develop. It will be in the Indigenous
communitys best interest to ensure that all matters in relation to heritage
and native title matters are handled in a timely manner, since they have an
incentive to ensure that the project is given every chance of succeeding
and turning a profit.
Depending on its size, an equity arrangement may also give the
community a role in the decision making process in relation to what is
happening on their country, and this in turn can lead to a better
community understanding of the project.
In the event that an equity arrangement cannot be agreed, a royalty
payment is often a condition of a mining project where long-term native
title interests exist.

5.4 Joint business ventures
In some agreements, the Indigenous parties are considered as preferred
tenderers and may have a leeway of ten percent in the tender process.
This can provide a golden opportunity for communities to joint venture
with a company or organisation with the appropriate skills and expertise
in relation to the tender.
This can provide an opportunity for Indigenous parties to participate in
enterprises generated by mining activity. It also may provide
opportunities to receive on the job training by their joint venture partner.
Indigenous Business Australia
29
assists and facilitates in the above
activities and may well provide resources to ensure that the tender bid is
commercially viable and sustainable.
Section 3.6.1 provides an example of one approach to joint venturing
between non-Indigenous and Indigenous entities.
5.5 Heritage protection
Indigenous peoples see heritage protection as an extremely important
matter; it appears to becoming increasingly so to mining companies as
well. If a suitable arrangement is not made in relation to heritage
protection, there can be significant delays in the company gaining access
to commercially viable resources.
The Indigenous peoples whether at a community meeting or a working
group meeting, need to decide who has the authority to make decisions
for particular areas of country. If a NTRB is involved, it is likely to play a
crucial role in determining the conditions of heritage surveys. The NTRB
will need to be satisfied that heritage surveys have been carried out in a
culturally appropriate manner, while at the same time ensuring that the
right people are conducting the survey.
In some instances it may not be culturally appropriate for a man to make
decisions over country that is considered significant to women and vice-
versa. It is important for companies to observe that this rule generally
applies both to Indigenous and non-Indigenous peoples. Thus, a male
anthropologist should not be visiting and recording womens sites unless
he has been given special leave to do so. Obviously this rule applies in
reverse with female anthropologists and mens sites.
These are the types of issues to be considered if the heritage component
of an agreement is to work efficiently and appropriately.

29
See http://www.cdc.gov.au/

6. I mpl ement at i on
The implementation phase may ultimately decide whether an agreement
is sustainable or not. There are many examples of an agreement being
reached with much acclaim and hype between companies and claimants.
However, this point is simply the beginning of a long and arduous road
regarding the agreement, its overall sustainability and ultimately whether
it is regarded as a success or not.
J udging from what the case studies and other information has revealed,
there is no doubt that a great deal of thought and effort needs to be
directed at examining appropriate processes and mechanisms for
agreements to be managed in a responsible and accountable manner.
Given that many Aboriginal people have not received a satisfactory level
of education or employment, it is not realistic to expect that just because
an agreement has been reached, Indigenous people will automatically
become experts in trusts and in handling large sums of money. This also
applies in relation to their roles and responsibilities as company directors,
members of corporate boards and their roles as trustees.
There are examples of good practice that have addressed these problems,
however, the implementation phase of agreements requires a great deal
more emphasis and hard thought in the future.
We cannot point to what we consider is comprehensive good practice
since there are far too few cases examined in detail in this small study.
However, there are some ideas we can canvass. For example, the
establishment of a coordinating committee to oversee implementation,
and employment of persons whose primary role is to coordinate and
facilitate implementation may be effective implementation strategies.
In terms of a coordinating committee, its members could include the
company, Indigenous groups, government and any other parties to the
agreement. Its primary task could be to ensure adherence to all aspects of
the agreement. In one particular agreement we examined, the
coordinating committee clause had a provision for the appointment of an
executive officer to work cooperatively with the NTRB to ensure all
issues relevant to implementation were appropriately addressed.
It may be possible for ATSIC to provide funding on a regional basis for
either a permanent employee in their office or an outsourced contractor to
provide services in relation to the implementation of agreements in a
specific region. Or, depending on the size of an agreement, a single
agreement could warrant a full-time implementation officer.

Given the already over-stretched resources of NTRBs, it is unlikely that
these could effectively service the implementation requirements of all
agreements
The amount of assistance a company may be willing and able to offer to
address implementation will depend on a number of factors such as the
size and scope of the agreement. Some elements of best practice that
suggest themselves in terms of employment of a person with the relevant
expertise (whether it be in a NTRB or some other organisation) to
facilitate implementation include:
Involvement by such a person at the beginning of the negotiation

process to ensure that they are fully aware of all the intricacies of the
agreement and the different personalities involved;
Establishment of the relationship at a very early stage;
The minimum expertise required of such a person would be to be

well versed in native title law, trusts, equity, contract and
corporations law;
The person would need to understand or be prepared to undertake

cross-cultural training in relation to the Indigenous group(s) with
whom they would be working, and
The person would need to be a member of any coordinating

committee that was established to oversight implementation of the
agreement and any trusts that might arise from the agreement.
If NTRBs or ATSIC provided such a centralised service, it should be
possible for agreements to include provisions for payment for these
services in proportion to the extent to which they were required and used.
6.1 Governance Structures
Governance structures associated with agreements between industry and
Indigenous parties potentially ensure either the success or failure of the
agreement .
There are several factors that need to be taken into account before parties
to an agreement settle on a governing structure, noting that just because
one particular model works in one region, it may not necessarily work in
another.
6.1.1 Culture
Indigenous people living in remote areas, notably in northern and central
Australia, often refer to themselves as traditional or tribal peoples.
They may practice law and culture on a regular basis and will often speak
one or more of the languages of a particular region. English is often a

second or third language, and they may well be more comfortable
speaking Kriol
30
, or what some of the older people call station English.
People in remote areas may well have completely different views as to
what would constitute a representative governance structure, compared
with Indigenous people living a less traditional life in towns and cities.
These people in remote areas may regard certain issues as mens or
womens business, which will require consideration in decision-making
clauses of agreements. It may also be necessary to guarantee the
involvement and advice from the senior elders of a claim group, as they
may well be the traditional custodians of the area covered by the
agreement.
Best practice would entail establishing an advisory structure to consider
issues that may affect traditional culture and country. Such a structure
may also be appropriate in relation to intra- and inter-group disputes, as
their authority is such that decisions they make or approve will be
respected and adhered to by the rest of the community.
6.2 Representative structures
It is important that negotiation teams and governing structures are
culturally, ethnographically and demographically representative of all
Indigenous parties to an agreement. These should be chosen by the full
community to ensure that structures reflect appropriate representation,
perhaps through family or geographic representation. Representatives
need to be accountable and report back to those whom they represent and,
through this to the full community. Community meetings can be useful as
an accountability mechanism functioning both to inform and seek
authorisation for the activities and functions of the representatives.
The representative(s) need to be aware that they are elected to represent
the best interests not just of their family about ultimately the whole
Indigenous group. They, therefore, need to be familiar with their roles
and responsibilities, as well as their possible liabilities should they breach
statutory requirements or other rules of the organisation.
A common theme in the case studies conducted for this report was that
elected representatives often had limited knowledge of conflict of interest
issues, as well as matters of personal liability.
Another significant problem concerns the continuity of skills and
expertise on governing structures. Members often acquire important skills
while participating in negotiation and management meetings. Depending
on the frequency of meetings, this may mean that it takes a significant

30
Kriol is a language recognised and used quite widely in Northern Australia, which incorporates traditional language and Bihasa (from
the early contact along the north coast with Koepanger trepangers and the Broome pearling community). There are several written
dictionaries and a number of variants, for example, Kimberley Kriol, Broome Kriol..

period before they have the necessary expertise to make informed and
accountable decisions has been acquired.
The fact that many of these committee members and trustees are elected
for a limited period can be counter productive to the organisation or trust
being able to function effectively. It is often the case that newly elected
representatives do not have the skills of their predecessors, and as a
consequence training as to roles and responsibilities effectively has to
start again.
This could be overcome to some extent by a structured program of
education on roles and responsibilities, including the use of workshops.
6.2.1 Longer terms for representatives
Generally, it would appear that the period of office is for a short term
before members are required to seek re-election. These can affect an
organisations ability to operate with a measure of continuity, when
members are not re-elected. It may be practical to consider longer terms
for members to ensure a level of continuity and a growth in the pool of
skills and knowledge that can only come from longer periods. Staggered
elections may also be useful so that at any time, there would always be
representatives with some degree of knowledge and skills.
A further factor is a need to take into account commercially sensitive
issues arising from agreements, for example, tender amounts in relation to
joint ventures. Members of governing committees or trusts need to
appreciate that disclosure of such matters could have adverse financial or
legal implications for the agreement as a whole, including on occasions
serious conflict of interest considerations.
This issue serves to reinforce our view that individuals who occupy these
positions need to be educated and trained in relation to their roles and
responsibilities under the terms of the agreement, as well as relevant
statutory legal provisions. They need to be able to tread the fine line of
best practice in regard to commercial arrangements, while at the same
time satisfying the information flows that the community needs and in
any case, often demands.
In relation to expectations of a constant flow of information to the
community, one NTRB produces a newsletter specifically in relation to
an agreement. This is an example of good practice by an NTRB that
contributes to good community relations.
AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES A1-1

At t ac hment A1. Nat i ve Ti t l e Ac t provi si ons and
I ndi genous Land Use Agreement s
A1.1 Native Title Act 1993; provisions relating to
negotiation and agreements
This attachment gives an overview of the provisions in the NTA that are
relevant to negotiation and agreement making. It is important that mining
industry stakeholders have a broad knowledge of NTA provisions in
relation to negotiation and agreement making as, although there is no
obligation to utilise either the Acts right to negotiate or ILUA provisions,
there are certain advantages in doing so, particularly with the latter.
Industry will also need to be aware of the relevant State and Territory
land rights and heritage protection regimes.
A reasonable volume of published material is extant, perhaps the most
comprehensive and useful being Members Guide to Mediation and
Negotiation by Mary Edmunds and Diane Smith (NNTT, 2000)
31
. But
because the application of the NTA is dynamic, subject to legal
precedents as well as allowing for alternative regimes by State and
Territory bodies, it is important that industry stakeholders monitor the
development of native title provisions as they apply in particular States
and Territories.
A1.1.1 The future act regime and the right to negotiate
The 1998 amendments to the NTA altered the right to negotiate in a
number of ways:
It is limited to a smaller range of land tenures and future acts;
It is limited to registered native title applicants and to registered

native title rights and interests;
Procedures for negotiation and arbitration have been altered;
The right to negotiate has been reduced in its coverage by

confirmation of extinguishment on certain types of land tenure as
defined in Schedule 1 of the NTA;
In certain situations where the right to negotiate has been excluded, a

right to be consulted and a right to comment have been substituted;
State and Territory governments may introduce alternative future act

regimes that modify the right to negotiate, and
Alternative State provisions are exceptions to the right to negotiate.

31
This is available on-line fromthe web-site of the National Native Title Tribunal; www.nntt.gov.au
A1-2 AGREEMENTS BETWEEN MINING COMPANIES AND INDIGENOUS COMMUNITIES

Other exceptions to the right to negotiate include:
Where an ILUA states that the right to negotiate does not apply;
Where a State or Territory has obtained exemption from the

Commonwealth Minister for approved exploration and prospecting
licences, and for gold, tin, opal and gem mining grants;
Mining infrastructure;
For renewals and extensions of valid mining leases approved before

23 December 1996, where the area, terms and rights of the earlier
lease are not extended;
For compulsory acquisition of native title rights and interests for a

grant to a third party that involves private development of public
infrastructure, or for the benefit of third parties within town and
cities;
Waters within the inter-tidal zone, and
Where the right to be consulted applies.

Parties to the right to negotiate
The three mandatory parties to the right to negotiate are (1) the native title
party (ies), (2) a government party and (3) the grantee party. An ILUA
widens the number of parties that may be involved in a future act
agreement.
Good faith negotiations
The NTA stipulates that parties must negotiate in good faith as a
precondition for arbitration, but only with regard to the registered or
determined native title rights and interests.
Stages in the right to negotiate
The three broad stages in the right to negotiate are:
Notification parties may commence negotiations as soon as notification
of all parties has taken place. A three-month notification period applies to
s. 29 notifications commencing from the notification day specified for the
act.
Negotiation there is no statutory timeframe for negotiations, but a
minimum six-month period applies before any party may seek an arbitral
determination. This includes the three-month notification period. Both
negotiated or arbitrated agreements may, by agreement between the
parties, establish conjunctive conditions for further future negotiations, or
which may cover mining production phases of an exploration licence.
Arbitration If agreement cannot be reached after the prescribed six-
month negotiation period, any party may apply to an arbitral body under
s. 35 of the NTA, such as the National Native Title Tribunal, for a future
act determination. If an application for arbitration is made the Tribunal

must hold an inquiry and make a determination as to whether the act may
be done and the conditions that apply. A number of requirements for
arbitration are specified by the NTA, including:
A determination must take account of the range of potential effects of

the proposed act, as listed in s. 39;
The Tribunal must consider the views of all native title parties
involved in negotiations, not simply the party seeking arbitration;
The Tribunal must consider the views of grantee parties, and take
account of existing uses of land or waters in the area subject to the
proposed act;
The Tribunal must seek to reach a determination as soon as possible.

S. 39 of the NTA specifies a six-month time limit for arbitration. If a
determination is not made within this period, the Tribunal must
advise the Minister for Indigenous Affairs, and estimate when a
determination may be made. After four months, the Minister may
move to make a determination;
The Tribunal may specify particular matters as the subject for future
negotiations, and
A future act determination is contractually binding on all parties.

It is important to emphasise that negotiations between the parties may
continue while arbitration is under way. If full agreement is reached and
registered prior to an arbitrated settlement, then arbitration ceases. The
NTA also allows for partial agreement between the parties, the subject(s)
of which will not be matters for arbitration.
A1.2 Indigenous Land Use Agreements
The 1998 amendments to the NTA incorporated provisions for flexible,
voluntary agreements between native title and other parties and, as such,
should hold some appeal for those wishing to negotiate mining
agreements. The provisions do not limit parties from negotiating
agreements outside the provisions of the NTA.
ILUAs are intended to:
Encourage flexibility, certainty and cost-effectiveness in the making

of agreements;
Establish a process of registration, objection and resolution of

objections by the Tribunal or an equivalent body;
Bind all native title parties regardless of whether they were parties to
an agreement, including future generations;
Provide contractual validity and increased security for parties to

agreement;
Allow for wide consideration of Indigenous and other rights and

interests in land;

Encourage practical solutions to competing land use management

issues;
Enable native title agreements to be reached without the necessity of

immediate resolution of legal issues, such as determinations of native
title, or extinguishment;
Enable agreements that are subject to agreed lawful conditions or

arrangements;
Limit the level of compensation for acts effecting native title to levels
negotiated under an ILUA.
An ILUA may be:
Local and specific to a small area and issue;
Apply to a large area and have a number of purposes;
Operate independently, and
Form a part of other agreements or be linked sequentially.

Three types of ILUAs
The NTA prescribes three forms of ILUA:
Body corporate agreements these are restricted to areas where one or
more registered native title bodies corporate hold native title over the
entire area subject to an agreement. Such bodies corporate may make
agreements with any other person.
Area agreements these may be applicable in situations where there is no
native title bodies corporate for the whole area.
Alternative procedure agreements these may apply in any situation
where there is no native title body corporate for the whole area, although
there must be a Native Title Representative Body (NTRB) or body
corporate for the area. In addition to the wide range of matters that may
be covered by the other types of ILUAs, an alternative procedure
agreement may provide a framework for other agreements about native
title rights and interests, and, because it is not a requirement that native
titleholders are parties to such an agreement, cannot provide for the
extinguishment of native title.
Features of ILUAs
ILUAs are flexible agreements, with the parties determining their main
features. They are also voluntary, meaning that parties are not obliged to
negotiate an agreement.
The main differences between the three types of ILUA are:
The subject matter of agreements;
The identity of the parties, and
The procedures for registering the agreement.


The common features of all three types are:
Agreement may be given by native titleholders or native title

applicants in relation to consideration, and subject to any lawful
conditions;
Any person may request assistance from the NNTT, not just native
title parties;
An application for registration of an ILUA may be by any of the

parties, and
Any party may appeal a decision to register an ILUA.

A1.2.2 The potential use of ILUAs
ILUAs may have application in a variety of contexts in areas where a
determination has been or is likely to be made that native title exists.
These include:
To provide for practical resolution of land use and management

issues in a native title context;
As a framework for compensation applications;
In order to bypass the right to negotiate provisions of the NTA;
As an alternative agreement in relation to future acts;
To facilitate approvals for mineral titles, including prospecting,

exploration and mining applications;
As regional or local agreements which may specify relationships

between native title and other parties, including grantees, and
To operate as framework agreements within which other substantive

agreements may be reached.
A1.2.3 Issues in the use of ILUAs
Certain areas of risk in relation to the use of ILUAs may be identified.
These include:
Agreement with the correct native title parties
In order to provide certainty in agreement making, the NTA encourages
the inclusion of all people with native title rights and interests in
negotiations over agreements. Thus, the process of identifying the correct
native title parties is fundamental, and one of the first steps in seeking to
negotiate an agreement. This may be quite time consuming and difficult
to expedite without the risk of compromising the final agreement.
Disputes over the identity of native title parties have the potential to
derail negotiations, delay registration of agreements, or result in appeals
to the Registrar. On occasions, disputes between competing native title
parties may mean that effective negotiations are not possible, and that

alternative strategies, such as use of the future act regime, become
necessary.
Prospective industry parties to an ILUA are advised to:
Undertake broad consultations with the range of Indigenous interests

in their area of interest;
Develop strategies to assist in comprehensively identifying all those

who may have native title rights and interests;
Ensure that all native title parties are equally involved in negotiations
and have access to resources to support negotiations;
Develop strategies for communication with, and obtaining informed

consent from native title parties;
Identify issues for negotiation in conjunction with native title parties

(see below Framework agreements and negotiation protocols);
Engage with the Native Title Representative Body or other key

Indigenous parties to seek their co-operation and possible
involvement in the process (see below, Engagement with NTRBs)
Ascertain with the NTRB and other native title interests requirements
for certification and/or authorisation of an agreement.
Engagement with NTRBs
The Acts ILUA provisions allow a number of key roles for NTRBs in
negotiating agreements, which give emphasis to the need for Industry
parties to establish early contact. These include:
NTRBs may be a party to ILUAs in their own right;
NTRBs may represent native title parties to an ILUA;
NTRBs may assist in the resolution of disputes between the parties,

or between different native title parties to an agreement;
NTRBs have a significant statutory function in certifying ILUAs, or

they may be involved in the authorisation of agreements.
The certification function of NTRBs means that, for the sake of
expediting the process, they should either be involved in negotiations or
at least informed of the process. If NTRBs are not involved until late in
the process and are requested by a native title party to certify an
agreement, there may be delays while the NTRB seeks to verify the
process of identification and authorisation.
Government parties to ILUAs
The involvement of a Government party in ILUAs may be mandatory
where they are a part of legislated State procedures. Furthermore, some
important elements of agreements including extinguishment, validation of
future acts, and alternative procedures for gaining mineral tenement
approvals can only be achieved with the inclusion of Government as a
party.

The point at which Governments should be formally brought into the
negotiation process needs to be carefully considered. Some mining and
Indigenous groups have suggested that involvement by Government in
negotiations risks delaying or unduly complicating the process, and that
the role of Government is to come in as a party once the main negotiation
points have been agreed between the main parties i.e., the proponent and
native title parties. Obviously, involvement of Government should also
take account of the particular function of a Government agency. The
NNTT for example has a function of assisting and facilitating ILUA
negotiations, and may be invited to advise, or assist in dispute resolution
or mediation. However, as a general rule, it may be practical at least to
keep Governments informed of the process so as to expedite their
involvement at the appropriate time.
Resourcing negotiations
It is important for mining parties to negotiations to recognise the resource
constraints on NTRBs, Native Title Bodies Corporate or other Indigenous
parties to negotiations. NTRBs for example are funded by ATSIC to
undertake statutory functions set out in s. 203 of the NTA (see below
Native Title Representative Bodies), and their terms of grant exclude
their use for any other purpose. Added to this, most NTRBs are under-
resourced to undertake their functions fully
32
.
Funding for negotiations may be available from the Family Law and
Legal Assistance Division of the Commonwealth Attorney-General's
Department , which provides financial assistance to parties to negotiation,
including incorporated and unincorporated bodies. ATSIC may also be
able to assist with additional funding, although the operational funds it
provides to NTRBs, and other Indigenous parties may be an important
factor in the negotiating process. It is important to emphasise however,
that there will often be a need for mining parties to provide some if not all
of the resources for negotiations to ensure their successful conclusion.
Compensatory payments
Under the ILUA provisions, there is no requirement that compensatory
payments be held in trust until a determination of native title is made.
Furthermore, compensatory payments for future acts under the terms of
an ILUA constitute final settlement for the native title parties to an
agreement.
The distribution of compensatory payments to native title parties is a key
issue and one which if not comprehensively dealt with at an early stage of
the process, can result in stalled negotiations, or unworkable agreements.
Thus, it is vital that all potential native titleholders are identified, and that
there are arrangements for equitable distribution of any compensatory

32
See Funding levels for NTRBs; report to ATSIC, Love and Raschid, 1999.

payments. These matters should be specified in the agreement, which
should also specify that:
Compensation has been agreed to by parties;
That the native title parties accept that compensation is in relation to

the particular act in question, and
That the agreed compensation is in accordance with the relevant

provisions of the NTA (s. 24).
Edmunds and Smith note proposals by the Commonwealth for a 4%
withholding tax on payments to native title parties by way of
compensation for temporary impairment or suspension of native title
under an ILUA. They warn that ... the eventual implementation of such a
native title tax may act as a disincentive to the agreement process and
increase transaction costs
33
.
Registration of ILUAs
Eventual registration of an ILUA may be facilitated by due attention to
key issues, notably identification of the right native title parties for the
area in question. There is a great deal of evidence that time and the level
of care over such matters can do much to ensure successful outcomes,
including registration.
An ILUA may fail to be registered or subsequently be made invalid if the
following circumstances arise:
Failure to identify and negotiate with all potential native titleholders;
Negotiating with the wrong native title group;
Failure to attain the authorisation of potential native titleholders for

the ILUA;
Failure to provide adequate certification;
Failure to provide appropriate information;
A successful objection by a person claiming to hold native title;
Subsequent determination of different native titleholders from the

parties to an agreement;
Expiry of terms of an agreement, and
A finding that a party was pressured to participate by duress, fraud or

undue influence.
Enforceability and durability of ILUAs
Although a registered ILUA has the force of a legal contract, it is
important for successful implementation that issues such as dispute
resolution and breach of obligation are addressed in the agreement.

33
Ibid., page 98.

Furthermore, the terms of an ILUA should include methods for
monitoring implementation, as well as on-going communication between
the parties.
An important issue in implementation is that of succession, whether the
terms of an agreement bind future generations of native titleholders. This
is an important cultural as well as a legal issue. Edmunds and Smith
suggest that ... it would be wise for parties to be mindful of the
difficulties surrounding cases where apparently workable and legally
agreed solutions have become effectively unworkable when they are later
seen to take away from subsequent generations, the right to speak for
country in a way different from their parents and grandparents
34
. They
suggest that the issue may be addressed by considering shorter-term
agreements, or building in provisions for re-negotiation of certain
elements throughout the term of agreement.

34
Ibid., page 99.
AUSTRALIAN MINERALS AND ENERGY ENVIRONMENT FOUNDATION A2-1

At t ac hment A2. Sur vey of Mi ni ng Compani es
Quest i onnai r e
The Australian Minerals and Energy Environment Foundation
Mining Industry Indigenous Agreements Project
Dear mining industry colleague
I am writing to seek your assistance with a project to identify best practice in agreement making between
the mining industry and Aboriginal communities. Enclosed is a questionnaire that I ask you to complete
and return by fax or email before Monday 5 November 2001.
As you may know, the Australian Minerals and Energy Environment Foundation has engaged ACIL
Consulting and Indigenous Support Services to undertake a project to identify best practice in agreement-
making between mining companies and Indigenous people. This project forms a part of the Australian
Mining, Minerals and Sustainable Development (MMSD) initiative, which is a subset of the global MMSD
process.
The study is to review briefly the development of mining company-Indigenous community agreements,
experience gained, emerging trends and changing attitudes, and gaps in experience and performance in this
area. We are doing this by collating data on as many agreements as possible and studying a representative
sample of agreements in detail.
The objective is to produce a report that communities and companies alike will be able to use as a practical
guide to learn from the successes and mistakes of others and to help them to put together successful and
mutually beneficial agreements in future. We also plan to produce the first edition of a database of
agreements to provide a single reference point for identifying what agreements exist and their essential
characteristics.
We seek your initial help by completing and returning this questionnaire on your companys experience in
its relations with Indigenous people and agreement making. It is in two parts, the first seeking just the
names, geographic areas and date of signing off of agreements reached, the parties to the agreements, and
whether they remain active. We urge you to complete at least Part 1 of the questionnaire to enable us to
begin the task of compiling a comprehensive database of all Indigenous mining agreements. We would
intend to make this information public.
Part 2 of the questionnaire seeks detail of the individual agreements. We also urge you to complete this to
enable us to contribute to the real need for a practical guide to agreement making. We envisage that this
data will become part of the public database, but this will not include any confidential information, so it is
important that you identify what should be protected. We will only use confidential information on a
generic basis so there is no risk of specific agreements being linked to such information.
We are very grateful for the time you are taking to read this and hopefully complete the questionnaire and
would be more than happy to discuss it with you as well if you prefer. You can contact either Helen Dent
(02 6249 8055, h.dent@acilconsulting.com.au) or Ian Satchwell (08 9480 3762,
i.satchwell@acilconsulting.com.au) should you wish to do so.
Yours faithfully
Ian Satchwell
Senior Consultant
Manager Western Australia and the Northern Territory

QUESTIONNAIRE
Mining Industry Indigenous Agreements Project
Survey of Mining Companies
As explained in the covering letter to this questionnaire, the Australian Minerals and Energy
Environment Foundation has engaged ACIL Consulting and Indigenous Support Services to
undertake a project to identify best practice in agreement-making between mining companies
and Indigenous people. We seek your initial help by completing and returning this questionnaire
on your companys experience in its relations with Indigenous people and agreement making. The
questionnaire is in 2 parts, the first seeking just the name, geographic area and date of signing off
of agreements reached, the parties to the agreements, and whether they remain active. Part 2 of
the questionnaire seeks detail of the individual agreements. We urge you to complete at least part
1 of the questionnaire, and if at all possible, Part 2 to enable us to contribute to the real need for a
practical guide to agreement making. We would appreciate it if questionnaires could be returned
by email or fax by Thursday 1 November 2001 to Helen Dent at ACIL Consulting:
h.dent@acilconsulting.com.au,
fax: 02 6249 7455,
telephone 02 6249 8055
PART 1
1. Is your company a party to an agreement(s) with Indigenous people? (if more than one, please copy this
formand complete one questionnaire for each agreement) Yes No
If no, go to PART 2 Q18. If yes, please continue.
2. What name have you given the agreement?

3. Which geographic area does the agreement cover?

4. Who are the parties to the agreement?

5. When was the agreement completed (ie signed-off by the parties)?

6. Is the agreement still operative? Yes No
If no, why?


PART 2
7. Briefly describe the agreement

8. When did you commence negotiations

9. Agreement characteristics. Please mark the characteristics which best fit your agreement (you may mark
more than one):
exploration cultural heritage
mining statutory
exploration and mining (ie conjunctive)

non-statutory
native title Indigenous Land Use Agreement
others please describe

10. Agreement provisions. Please mark the provisions that your agreement includes (you
may mark as many as apply):
Payments environmental management of mine site
other compensation mechanisms rehabilitation after mining
employment land management programs
education other conservation programs
training community assistance programs
contracting with Aboriginal businesses sport
assistance with establishing and operating
businesses
good neighbour programs
cross-cultural programs infrastructure provision
others please describe:

11. What provisions are in place for sustaining your agreement (eg communications, community office,
review mechanisms, resourcing of the foregoing)?

12. Did you consider alternatives to negotiating an agreement? Yes No
If yes, please describe.


13. Was a Native Title Representative Body (Land Council) involved in negotiation of the agreement?
Yes No
If yes, how?
If no, why?
14. Was there government involvement in making your agreement?
Yes No
If Yes, please describe how and what levels of government were/are involved (Commonwealth, State,
Local)

What government agencies were involved? (eg Mines, National Native Title Tribunal, State or
Commonwealth Aboriginal affairs departments, State or Commonwealth training and employment
departments, ATSIC)

15. Is a government a party to your agreement? Yes No
If yes, please give details:

16. Is a government still otherwise involved in your agreement?
Yes No
If yes, please describe how:

17. Please provide any other comments on your agreement

18. If you answered No at Q1, please indicate why you do not have an agreement:

19. Please give details of the best contact person for further information:
Name:
Position:
Company:
Address:

Telephone: Facsimile:
Email:
THANKYOU FOR TAKING THE TIME TO COMPLETE THIS QUESTIONNAIRE

At t ac hment A3. Usef ul I nt er net websi t es

Organisation
Web address
Mining Companies

Anglo Gold www.AngloGold.com.au
Cameco http://www.cameco.com.au
M.I.M. Holdings http://www.mim.com.au/
Now and Beyond, a report about Indigenous relations on the
Normandy website
www.normandy.com.au.

Sons of Gwalia www.sog.com.au
Rio Tinto http://www.riotinto.com/

Government

Aboriginal Affairs Department Western Australia http://www.aad.wa.gov.au/
Aboriginal & Torres Straight Islander Commission (ATSIC) http://www.atsic.gov.au
Indigenous Business Australia (formerly the Aboriginal and
Torres Strait Islander Commercial Development Corporation)
http://www.cdc.gov.au/
National Native Title Tribunal www.nntt.gov.au
Senate Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund, Parliament of Australia
http://www.aph.gov.au/senate/committe
e/ntlf_ctte/index.htm
NSW Department of Aboriginal Affairs www.daa.nsw.gov.au
Federal Court of Australia www.fedcourt.gov.au
Federal Department of Industry, Tourism & Resources section
on developing opportunities for aboriginal people
http://www.isr.gov.au/resources/Indigen
ouspartnerships/Casestudies/RioTinto/

Minerals Councils/Chambers

Association of Mining & Exploration Companies www.amec.asn.au
Minerals Council of Australia www.minerals.org.au
NSW Minerals Council www.nswmin.com.au
Northern Territory Minerals Council www.ntminerals.org.au

Organisation
Web address
Queensland Mining Council www.qmc.com.au
South Australia Chamber of Mines & Energy www.resourcessa.org.au
The Chamber of Minerals & Energy WA www.mineralswa.asn.au
Victorian Minerals & Energy Council www.vicmins.com.au

Land Councils/NTRBs

Aboriginal Legal Rights Movement www.nativetitlesa.org
Cape York Land Council www.cylc.org.au
Central Land Council www.clc.org.au
Central Queensland Land Council www.cqlcac.org.au
Goldfields Land Council www.glc.com.au
Kimberley Land Council www.bme.klc.org.au
Mirimbiak Nations Aboriginal Corporation www.mnac.com.au
New South Wales Land Council www.alc.org.au
Ngaayatjarri Land Council www.ngaayatjarri.org.au
Noongar Land Council www.noongar.org.au
Northern Land Council www.nlc.org.au
Torres Straight Regional Authority www.tsra.gov.au
Yamatji Barna Baba Maaja Land and Sea Council www.yamatji.org.au

Other organisations

ACIL Consulting Pty Ltd www.acilconsulting.com.au
Indigenous Law Resources section of the Australasian Legal
Information Institute website
www.austlii.edu.au
Bloostreet links to Aboriginal resources world wide http://www.bloorstreet.com/300block/ab
orl.htm
Unoiversity of Western Australia Arts Department www.arts.uwa.edu.au/AnthropWWW/ar
chives/native_title/ntcases.htm
Australians for Native Title and Recognition www.antar.org.au
Australian Human Rights and Equal Opportunity Commission www.hreoc.gov.au/social_justice/native
_title

Organisation
Web address
Oxfam Community Aid Abroad www.caa.org.au/horizons/august_2001/r
esearchmining.html
Australian Institute of Aboriginal and Torres Straight Islander
Studies
http://www.aiatsis.gov.au/


At t ac hment A4. Nor t hern Land Counc i l Ex pl or at i on
Li c enc e Agreement s
The following extract is from a discussion paper by C. O'Faircheallaigh
titled Mineral development agreements negotiated by Aboriginal
communities in the 1990s, Centre for Aboriginal Economic Policy
Research, Australian National University, No. 85/1995, pp 2-5.
It provides an overview of the NLC's approach towards negotiating
mineral exploration agreements on Aboriginal land up until 1995. It also
gives a general idea of the contents of these agreements. Although when
it was written, the article was already over three years old, it has
contemporary relevance for Aboriginal people in West Arnhem Land as
the majority of the current exploration licences in the region were granted
in the year following its publication in 1995-96. It therefore provides an
indication of what might be in those exploration agreements. Certainly
the point about mining companies entering into joint venture
arrangements with Aboriginal corporations, outside the framework of the
Land Rights Act, is applicable to the West Arnhem Land situation.
The Land Rights Act, as amended in 1987, obliges a mining company
which has obtained a right from the Northern Territory Minister for
Mines to explore on Aboriginal land, to lodge an exploration licence
application with the relevant land council within three months. In doing
so the company is also required to provide a detailed outline of its
proposed exploration program and of any potential environmental and
social impacts. When a land council receives a licence application a
'negotiation period' commences, which is normally 12 months. Within 30
days of receiving an application the land council must notify any
Aboriginal group or community, including any traditional owners, that
may be affected by the grant of a licence, and subsequently consult with
them concerning the exploration proposals and the terms and conditions
to which any grant should be subject. On the basis of these consultations
the land council must, before the 'negotiating period' expires, either
consent or refuse to consent to the application. If consent is given, the
traditional owners cannot subsequently deny the licence holder a mining
right in the licence area. In other words, the Land Rights Act does not
allow disjunctive agreements which require the granting of consent
separately in relation to exploration and, at a later point in time, to
mining. Disjunctive agreements were permitted prior to the amendment
of the Land Rights Act in 1987.
Where the land council does not refuse its consent but fails to reach
agreement with the applicant regarding terms and conditions for grant of
a licence, provision is made for conciliation and, if this fails, for

arbitration. The outcome of any arbitration is binding on the land council
and on traditional owners. If a holder of an exploration licence wishes to
proceed to mining, the procedure is almost identical to that involved in
processing an application to explore. The key difference, of course, is that
while an exploration licence agreement (ELA) can be rejected, a mining
lease application cannot.
The NLC felt that the 1987 amendments placed Aboriginal landowners in
an invidious and indeed ridiculous position, requiring them to approve
mining at a stage when virtually no information was available on what it
would entail, and denying them a key bargaining factor (the power to
withhold consent) when they negotiated terms and conditions for granting
of mining leases. The Council initially believed that while it could no
longer insist on disjunctive agreements, it could still conclude such
agreements under the Land Rights Act if mining companies were willing
to do so. However, the Northern Territory Government mounted a
successful legal challenge against an agreement negotiated in this way.
The NLC then attempted, without success, to have the Land Rights Act
changed so as to again allow disjunctive agreements.
It is against this background that the NLC has, since late 1993, developed
and applied its current approach to negotiation of ELAs. Some ten ELAs
have been concluded to date and a number of others are currently under
negotiation. The basic aims of the approach are twofold:
8) i. to ensure that traditional owners gain some benefit from mineral
exploration activity on their land, and to minimise any adverse effects
from exploration activity;
9) ii. to provide as much certainty as possible regarding the general
parameters which will apply to the development of any commercial
mineral deposits which are discovered. This ensures, to the extent
feasible, that traditional owners know what they are committing
themselves to, and what sorts of benefits they can expect, when they
consent to exploration.
The mechanism developed by the NLC is a standard form contract for an
ELA, which is then modified through a process of consultation and
negotiation to take into account the specific needs and concerns of
particular traditional owners and mining companies. Since conditions
relating to mining cannot be included in the ELA itself, a set of 'mutually
agreed mining parameters are negotiated and placed in an Appendix.
These parameters (discussed below) seek to establish general principles
which will govern mining on Aboriginal land and give a specific
indication of the benefits which traditional owners can expect to achieve
(for example in relation to compensation payments). However they also
leave some leeway for adjustments when the terms and conditions are
negotiated for the granting of a mining lease, by which time much more
information is available to traditional owners and the mining company.

The 'mutually agreed mining parameters' are unlikely to be enforceable
through the courts, given that they have no legislative base under the
Land Rights Act. Thus a mining company could, in theory, insist that
completely new terms and conditions be negotiated for granting of a
mining lease. It would be unlikely to do so, given its desire to obtain
landowner approval and to avoid the delays involved in conciliation and
arbitration. However to strengthen the legal position of landowners, a
joint venture contract is negotiated between an Aboriginal corporation,
representing the traditional owners, and the mining company involved.
This contract incorporates the same 'mining parameters' included in the
ELA appendix, and is concluded outside the framework of the Land
Rights Act.
As indicated above, the specific provisions of individual ELAs and the
related 'mining parameters' vary. The following discussion provides a
general indication of their context.
ELAs usually provide for traditional owners to achieve a (free) equity
position in any project developed as a result of exploration on their land
(usually 5 per cent, but possibly higher depending on the company
involved). There may also be provisions for the developer to help owners
increase their equity if mining proceeds, for example, through provision
of an interest-free loan or through an issue of equity financed from
royalty income foregone by traditional owners.
The agreements also contain a range of provisions designed to ensure
protection of the environment and sites of significance and to minimise
the possibility of adverse social impacts. These include an arrangement
whereby traditional owners, though minority shareholders in a project,
have a majority of voting rights in regard to decisions on, for example,
management of significant sites or access to alcohol. It is usually agreed
that a 'fly-in fly-out' mode of development will be utilised, as opposed to
the development of a conventional township and associated facilities,
helping to minimise both social and environmental impacts. More
specific environmental issues are also dealt with, such as water
containment and pit rehabilitation.
Liaison committees are established to maintain communication between
owners and the company during the exploration stage and to supervise
site clearance and approve work programs at the beginning of each year.
Once mining commences, the developer pays an agreed administration
fee to the NLC. Part of this fee funds the monitoring of environmental,
cultural and social impacts by land council officers and traditional
owners.
Financial compensation received by traditional owners during the
exploration stage is modest, and is related to the extent of exploration
activity. If a mine is developed, compensation is paid during the
construction phase, reflecting the fact that this often involves extensive

physical and social disruption. Payments usually amount to about 1 per
cent of construction costs. The fiscal regime which will apply to mining
varies from case to case both in terms of the level of payments and their
method of calculation, for example, because of the nature of the minerals
being sought. The regime may also be subject to further negotiation when
terms and conditions are agreed for a mining lease. The NLC would
certainly expect this to occur if, say, exploration yielded an unexpectedly
valuable deposit, and seeks to include provisions which provide it with a
capacity to achieve such an outcome. Conversely, the 'mining parameters'
may include a provision which sets a ceiling on the royalty payments a
company could incur during the early phase of a project.
The fiscal regime usually involves a negotiated (non-statutory) royalty
equivalent to about 2-3 per cent ad valorem (i.e. of the value of mineral
sales). There is also provision for annual rental payments, related to the
area of land involved, but typically expected to yield about $100,000 per
annum. One reason for seeking rentals is to provide at least a modicum of
stability in the income accruing to traditional owners in a context where
sharp changes in output or prices can dramatically affect royalty income,
for instance, as has occurred during recent years with Ranger Uranium
Mines. The provision of equity can also represent an important source of
income for traditional owners if projects prove to be profitable.
Employment opportunities for local Aboriginal people are limited during
mineral exploration, but companies usually give a general commitment to
make the maximum possible use of local labour. With reference to the
construction and mining phases, the 'mining parameters tend to focus on
the principles which will govern company policy and practice, rather than
on specifying particular activities or levels of employment. For example,
companies are expected to initiate training programs for local Aboriginal
people as early as possible in project development, to increase their
capacity to take advantage of employment opportunities available at the
mining stage. They also make a commitment to train, as far as is
practicable, interested local people to fill permanent positions at all levels
in the mining operation. It is assumed that more detailed provisions
regarding employment and training would be developed as part of the
terms and conditions for mining leases. The mining parameters also
include a preference clause in relation to awarding of contracts to local
suppliers.

At t ac hment A5. Nat i ve Ti t l e Repr esent at i ve Body
f unc t i ons under t he Nat i ve Ti t l e Ac t
The NTA sets out the functions of Native Title Representative Bodies as
follows:
Facilitation and assistance (s. 203BB), including research into and

preparation of native title applications, assistance to native title
parties in native title applications, future acts, ILUAs and other
agreements, rights of access and any other matters relating to native
title;
Certification (s. 203BE) of applications for determination of native

title and registration of ILUAs, provided the applications are
authorised by all native title members, that all reasonable efforts have
been made to describe or identify all others who may hold native
title, and that efforts have been made to resolve overlapping
applications;
Dispute resolution (s. 203BF), to promote agreement between

constituents about native title applications, how native title activities
are to be undertaken, and to mediate between constituents about
applications and native title activities;
Notification (s. 203BG) of native title parties about matters that may
effect native title;
Agreement making (s. 203BH), to be a party to ILUAs;
Internal review (s. 203BI), to provide a process for native title parties
to seek review of decisions or actions of the NTRB, and
Other functions (s. 203BJ ), including co-operative arrangements with

neighbouring NTRBs, identification of native title holders, promoting
understanding amongst constituents of the NTA 1993, and
consultation with other Indigenous people about native title issues.

137mmsd Au Indigenous PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

137mmsd Au Indigenous PDF

Uploaded by

Copyright:

Available Formats

Agr eement s bet w een Mi ni ng Compani es and

I ndi genous Communi t i es

Review a small number of case studies to identify knowledge and

Identify key issues, concerns and priorities based on the perspective

Identify examples of good practice and practical steps to facilitate

Engage Native Title Representative Bodies (NTRBs) early in the

Ensure that there is full company commitment up to CEO and Board

Negotiations should be aimed at finding common ground and

Provide clear information on the proposed development and its

Consultation strategies should:

Allocate adequate resources to negotiations, recognising that

Use well-trained negotiators and maintain the same team until

Employment has a high priority among Indigenous people, with

Provision of education is primarily the responsibility of government,

Compensation arrangements should be designed carefully:

Equity arrangements in mining ventures and/or other joint business

Protection of heritage is very important to Indigenous people and

As much attention should be given to implementation as to the

Coordinating committees to meet periodically to oversight

Governance structures for such committees, trusts or business

Indigenous representatives on committees and boards should be

A literature search of data and research on agreements to develop a

Preparation and presentation at the MMSD Brisbane conference in

Initiating the process of compiling a comprehensive database of

Undertaking a handful of case studies involving detailed (mostly

Chapter 2 provides a description of recent developments in

A synthesis of what the case studies revealed in terms of experience,

Finally, Chapters 4, 5 and 6 present a distillation of good practices

A general recognition by the mining industry that native title is here

Changes in mining and industry bodies corporate cultures, involving

An increased interest in principles of sustainable development,

Changes in the attitudes and resourcing of many Indigenous

Changes in approach by State governments to emphasise negotiation

An increased familiarity by native title parties with agreements and

Relationships between Indigenous parties and the company, often

Compensation, which may involve direct payments, royalty

Environmental and social impact assessment and management;

Employment and training, including enterprise support and

Provision of community infrastructure and facilities;

Cross cultural issues, including awareness training;

Information exchange between the Indigenous parties and the

Site rehabilitation following cessation of mining;

Other exit and post mine issues;

The role of governments, and

Clauses containing dispute resolution procedures to resolve difficult

The Eastern Gas Pipeline agreement, reached in 1997 between the

The Chevron Gas Pipeline agreement, reached between Chevron and

The Australian Gas Light Company (AGL) agreement, reached in

The Midwest Gas Pipeline agreement, reached in 1999 between AGL

Notification by a company of exploration licence applications to the

Notification by KLC of traditional owners and the existence of a

Notification of the explorer by KLC within 60 days or as soon as

A review of relevant literature and databases;

The survey of mining companies, which were sent a questionnaire

A survey of NTRBs, and

Discussions with some relevant Commonwealth and State agencies.

A legal adversarial approach;

A wait and see approach with regard to judicial or legal

Obtaining the views of people with knowledge and experience of

Getting to know and understand the circumstances, motivations and

Developing a positive climate for negotiation through consultation.

That negotiations were to be conducted in good faith to build on the

That negotiations should focus on outcomes that had the potential to