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Heritage Protection Agreement

Category: Agreement
Sub Category:Template Agreement
Location:Perth, Western Australia, Australia
Subject Matter:Cultural Heritage | Mining and Minerals | Native Title
Summary Information:
The Heritage Protection Agreement (the Agreement) is a template agreement for use in the south western part of Western Australia for which the South West Aboriginal Land and Sea Council Aboriginal Corporation (the Corporation) is recognised as the Native Title Representative Body under s 203AD of the Native Title Act 1993 (Cth). The Agreement is intended to be used where a mining company has applied for the grant of a mining tenement in relation to land over which a native title claim has been made.

The Agreement is to be entered into between a Grantee Party, being the party making an application for a mining tenement, the Corporation, and a Native Title Claim Group (the Native Title Party) being the particular group who have made a native title claim which covers the area of the proposed Mining Tenement.

The Recitals to the Agreement state (amongst other things) that the Agreement is entered into in order to facilitate:
(i) the preservation of Aboriginal heritage through the protection of Aboriginal Sites and Aboriginal Objects, and
(ii) the grant of Mining Tenement(s) without objection from the Corporation or any member of the Native Title Party.
Detailed Information:
The main provisions of the Agreement are the following:

Clause 2:
This sets out the agreement by the Native Title Party not to lodge objection to the grant of the mining tenement and to withdraw any objection that may have been lodged prior to the agreement being entered into. The Native Title Party is to enter into 'such further or supplementary agreements as may be necessary to give effect to this Agreement and to perfect the grant of the Mining Tenement.' (2.1(c)).

Clause 3:
The Grantee Party agrees to ensure -
  • that proper surveys are conducted for the identification of Aboriginal sites on the mining tenement;
  • accurate recordings are made of survey findings; and
  • proper management and protection of Aboriginal sites.

    Clause 4:
    This clause covers matters in relation to the necessity of and the carrying out of a survey(s) of the mining tenement area, depending upon the level of mining activity to be carried out, the level of detail regarding any Aboriginal sites to be disclosed, and the existence of prior survey reports. Surveys may be either Site Identification Surveys or Site Avoidance Surveys.
    The clause covers -
  • the information to be provided by each party in relation to any survey;
  • the appointment of a survey team which, depending on the type of survey to be conducted, will include an anthropologist appointed by the Corporation and members of the Native Title Party, and may include an archaeologist, an officer of the Corporation and an observer from the Grantee Party;
  • survey procedure, such as identification of Aboriginal sites in the survey area or the determination of areas to be avoided during mining activity;
  • survey costs and associated expenses which are paid by the Grantee Party;
  • preparation of a Draft Survey Report by the anthropologist. This Report comprises 3 parts as follows - clause 4.5(a):

    (i) Part 1 which will contain an Introduction and Survey methodology;
    (ii) Part 2 which will contain information of all Aboriginal Sites identified in the Survey Area and which may contain relevant culturally significant information relating to the Aboriginal Sites identified by the Survey;
    (iii) Part 3 which will contain:

    (A) culturally appropriate descriptions of all Aboriginal Sites (or Avoidance Areas in the case of a Site Avoidance Survey) in the Survey Area sufficient for the identification thereof;
    (B) recommendations for the protection and management of Aboriginal Sites or Avoidance Areas as the case may be;
    (C) a map delineating the accurate location and/or extent of the Aboriginal Sites or Avoidance Areas, including GPS co-ordinates;
    (D) the identity of the participating Representatives; and
    (E) any recommendations as to ways in which the proposed works may be altered or whether a monitoring team should be appointed to monitor the proposed works in order to protect Aboriginal Sites…'

    The parties to the Agreement must be provided with Parts 1 and 3 of the Draft Survey Report. Part 2 is to be provided to native title claimants registered, in relation to the land involved, under the Native Title Act. The parties and the registered native title claimants have the right to comment on the Draft Survey Report before it becomes a Final Survey Report. Again Part 3 of the Final Survey Report is restricted 'unless the Native Title Party agrees to its distribution or the Grantee Party seeks Ministerial consent under section 18 of the Heritage Act in accordance with clause 9 of this Agreement….' (clause 4.6 (iv)).

    Clause 5:
    This clause covers the possible monitoring of mining activity, in certain areas identified in the Final Survey Report, by a Monitoring Team.

    Clause 6:
    Clause 6.1 states: that 'the Grantee Party will take all reasonable measures to ensure that, employees, agents, contractors or visitors do not interfere with or damage any Aboriginal Site(s).' In the event of the Grantee Party, in the course of its mining activities, identifying a previously unidentified Aboriginal site, it must report this fact to the other parties.

    Clause 7:
    This clause covers environmental protection. The Grantee Party agrees to rehabilitate the area covered by the mining tenement in accordance with its statutory obligations.

    Clause 8:
    This clause deals with identification and relocation of ancestral remains or objects. Clause 8.1 states that where, as a result of any mining activities, the 'Grantee Party uncovers skeletal remains or identifies an area or object which it reasonably suspects of being an Aboriginal Site or Aboriginal Object, the Grantee Party will cease all such operations and activities in the immediate vicinity of such remains, areas or objects…'
    The other parties must be notified immediately in order to work out a 'culturally appropriate method of managing the discovery and to deal with it in accordance with the provisions of the Heritage Act …'

    Clause 9:
    This clause acknowledges that the Grantee Party 'may seek Ministerial consent under section 18 of the Heritage Act to use land and waters the subject of the Mining Tenement.' However, this cannot be done without first carrying out consultation and mediation procedures in accordance with this clause.

    Clause 10:
    This clause covers the resolution of disputes. If the parties are unable to resolve any dispute themselves, the dispute may be referred to a single independent mediator and if still not resolved, to an independent arbitrator.

    Clause 11
    Certain information, in particular that contained in the Survey Reports, is to remain confidential. This confidentiality provision is to 'survive termination of the Agreement.' (clause 11.4).

    Other clauses cover - assignment of the Agreement; the giving of notices; the term of the Agreement; waiver of breaches; costs and stamp duty; further acts etc. to be done to 'give full effect to the operation of this Agreement'; governing law; variation of the Agreement; notice of commencement of certain mining programmes; and copyright.

  • Related Entries

    Organisation
  • South West Aboriginal Land and Sea Council - Signatory
  • Legislation
  • Native Title Act 1993 (Cth)
  • Aboriginal Heritage Act 1972 (WA)

  • References

    Resource
    Australian Legal Information Institute (1972) Aboriginal Heritage Act 1972 (WA)

    Glossary

    Template Agreement

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