murray meaton, economics consulting services - fostering positive native title and indigenous...
DESCRIPTION
Murray Meaton, Director, Economics Consulting Services delivered this presentation at the Mining the Pilbara 2013 conference. The conference aims to promote the sustainable development of mineral resources and the Pilbara region. For more information, visit http://www.informa.com.au/miningthepilbaraTRANSCRIPT
Fostering Native Title and Indigenous Relations
James Price Point –what did we learn?
Content
Land Access
Native Title rights
Best practice agreement making
• Homework
• Protocol
• Process
• Benefits
• Implementation
Trends
Land Access
Land use frequently requires approvals under
the Aboriginal Heritage Act and the Native
Title Act.
Generally a Cultural Heritage Agreement sets out how
Aboriginal sites will be identified and protected and disputes
resolved
The NT Act requires consultation with people who hold native
title rights over the land involved and will generally result in
a Land Access and Exploration/Production Agreement
Native title rights
A bundle of inalienable rights
Rights generally include:
• Land access
• Involvement in land use decisions
• Rights to traditional resources – food/water/ochre
• Rights to protect significant areas/sites
• Acknowledgment as custodians
• Rights MAY include living rights and access
control
Do Not legally include minerals/hydrocarbons/water
Legalities
1. Legislation
I. Mining Act
II. Aboriginal Heritage Act
III. Native Title Act
IV. Petroleum and Geothermal Energy Act
V. Public Works Act – rail and ports
1. Native title tenure:
1. Claimed
2. Determined non-exclusive
3. Determined exclusive
4. Reserves and Aboriginal freehold
Court guidance
Valuable rights
NTA - just terms for any loss or impairment
Courts recognize special attachment
Can exceed freehold values
Courts have valued hunting rights
Courts or government will in time value
other aspects
(the assessment process at present is too
arbitrary to be permanent)
Best practice
• Sustainable
• Defendable
• Intra and Inter generational
• Compliant with International Human rights
• Informed and trained participants
• Effective and open communication
• Ministers have agreed on:
• Interest based approach
• Good faith
• Flexibility
• Fair
Fair
Fair negotiation process
Recognition of a right to be involved
Respect and courtesy
Consistent management
Everyone has a right to a minimum
entitlement
Equality of opportunity in the rewards
Reward for effort - no free kicks
Sharing of pain and gains
Priority rights to existing users
Best practice approach
1. Be clear on your situation
2. Understand the community/social aspects
3. Attempt to understand existing
agreements
4. Assess strengths and weaknesses
5. Consider RTN principles
6. Benchmark assessment
7. Develop a balanced package
Your situation
Leases needed
Access
Infrastructure
Your Traditional Owner Community
Your Traditional Owners
Ngarla BHPB Goldsworthy
Kariyarra BHPB, Atlas, FMG
Ngarluma/Yindjibarndi Rio, FMG, Atlas
Kuruma Marthudunera Rio,
Thalanyji Chevron, BHPB Petroleum
Gnulli New Standard
Puutu Kunti Kurrama Pinikurra Rio, Paulsen’s
Eastern Guruma Rio, Brockman,
Banjima BHPB, Rio, FMG
Yinhawangka Rio
Nyiyaparli BHPB, Rio, FMG, Cons. Coobina
Palyku BHPB, FMG
Njamal Wedgetail, Woodie-Woodie
Warrarn
Nyangumarta
Martu and Ngurrara Newcrest
Thudgari Jurruru
Ngurrara
Understand their situation – be prepared to invest in this
Operating mines
Benchmark other agreements
1. Commodity (perceived profitability)
2. Location (community perceptions)
3. Other companies
Uranium
Oil and gas
Diamonds
Gold
Iron ore
Base metals
Industrial
Infrastructure
Northern Territory
Kimberley
Pilbara
Mid West, SA, Goldfields
South West, Qld, NSW, Vic
RTN principles
1. Land area used to be minimised
2. Exclusion areas notified at beginning
3. NT restored in full wherever possible
4. Land to be remediated to best practice
5. Involvement in heritage clearance and monitoring during
construction
6. Continued right of land access except when unsafe
7. Liaison mechanism
8. Cultural heritage training for all on-site employees
9. Training fund
10. Priority employment rights
11. Priority business opportunities
Types of agreements
Mining – exploration and production,
project and claim wide
Oil and gas – exploration, production,
conjunctive, regional, project and claim
Pipelines
Infrastructure – ports, rail, roads, water
supplies
Land agreements
Regional agreements.
A package
Community and company determine slices
Health, education,
recreation, art, music,
language, culture
Equity?
Suitable for a very small number of groups
Requires corporate decision structure -
separation of director responsibilities from
community
Can require large borrowings
Free carried must be diluted over time
Equity acquisition and sale considerations
Lack of relationship to land activity
Benefits only flow on sale
Conflict with other communities
Highly unlikely with any worthwhile companies
Good for my business
Trends
More sophisticated payment structures –
floors/ceilings, indexation, reviews
Greater emphasis on legal provisions
Need for best practice learning
Some interest in community profiling
More comprehensive employment and contract
provisions
Consideration of equity
Government concerns on the rise
More aggressive negotiation – great in short term
A good process and agreement
Clear understanding of the process and timelines (Negotiation
Protocol)
Agreed budgets and meeting locations
Defined confidentiality constraints
Defined communication channels
Clear explanation of land impact, timelines, jobs and contract
opportunities
Records of all decisions and confirmation at subsequent meetings
Industry benchmarks on other projects
Consideration of all options
Response on all issues by both parties
Time to consult with all stakeholders
Availability of expert advisors on contentious issues
Transparent and known authorisation process
Dispute resolution process
Consideration of the structures required for successful
implementation
Funding and support for ongoing relationships and monitoring
Benchmarks – oil and gas
Large Oil and Gas
Signature $25,000 to $500,000
Grant of all approvals $25,000 to $500,000 cpi
Grant of all tenure $25,000 to $300,000 cpi
Business incubation $25,000 pa to $400,000 cpi pa
Start construction $25,000 to $2,000,000 cpi
First gas $25,000 to $10,000,000 cpi
Production payments or land rental
Up to 1% of sales, land up to
$3,500,000 pa
Liaison officer
Liaison committee
Education fund $25,000 to $1,250,000 pa
Traineeships $50,000 to $1,300,000 pa
Cultural Heritage project
Contract preference Best endeveavours at least
Employment: Monitors during construction
Operating phase targets
Project Project Project
Rio Tinto – 7 claims
Havilah Resources
Gellard phosphate
BHP Billiton 4 claims
Murchison Metals - Weld Range
Wedgetail Gold
FMG – 3 claims Ngarluma Roebourne
FMG Glacier Valley Hancock – 4
claims Integra Mining Hancock Pilbara
rail Aquila/API – 3 claims
Saracen Gold Jabiru Benambra
Iluka Mildura Atlas Abydos Giralia iron ore
Mount Gibson Iron
Hancock Balfour Downs
North West Infrastructure Inpex Browse
Basin Telfer pipeline Brockman
Resources Officer Basin Energy
Ngarluma Aurox Hazelwood Tungsten Jack Hills Yalgoo SKA
project CBH Sulphur Springs Hancock Balfour
Downs Kimberley Diamonds Ellendale
Iluka Eucla Basin
Wilga Coal mine Wiluna West iron Hancock Roy Hills
Phanerozoic nickel
Galaxy Ravensthorpe
Latji Latji regional
IOH Phil’s Creek Noongar single claim
Alpha Coal
Brockman Resources
Crosslands Jack Hills
Pangaea – 9 claims Radio Telescope
SKA Atlas Pardoo Gorgon pipeline
Olympic Dam Kingsway oil IOH Iron Valley
Ravensthorpe Nickel
Robertson Range iron
Kimberley Iron Ore Vital Metals Cairn Hill iron ore Sandfire Doolgunna Prominent Hill Wilcherry Hill Fairstar Iron ore
Spinifex Ridge BHPB Macedon gas
Windimurra vanadium Beta Nutrition Karara magnetite OPR rail and port
Tiwest Dongara Oakajee Port and Rail
Moly Metals iron ore Chevron
Wheatstone Straits Torrens copper
New Standard Oil Gnulli Perilya Zinc James Price Point
LNG Weld Range chromites Yannarie Salt New Standard
Energy Rodinia Officer Basin oil Baldivis Quarry Flinders iron Silver Lake
Kintyre uranium Onslow Resources
Central Petroleum
Telfer gold Merlinleigh oil and gas
Buru Energy