ANDAMOOKA PRECIOUS STONES FIELD INDIGENOUS LAND USE AGREEMENT AN AGREEMENT DATED 2018 BETWEEN:

Transcription

1 ANDAMOOKA PRECIOUS STONES FIELD INDIGENOUS LAND USE AGREEMENT AN AGREEMENT DATED 2018 BETWEEN: Kokatha Aboriginal Corporation RNTBC (ICN 8093) (the Corporation) a body corporate pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) [Insert address] AND: The Minister for Energy and Mining for the State of South Australia (the Minister for Energy and Mining) of level 8 State Administration Centre, 200 Victoria Square, ADELAIDE SA 5000, for and on behalf of the State of South Australia Prepared by the Crown Solicitor s Office, Commercial, Environment & Native Title Section Level 6, 45 Pirie Street, ADELAIDE SA 5000 Telephone: i

2 TABLE OF CONTENTS Part 1: Background Recitals Definitions Interpretation... 3 Part 2: Operative Provisions Term of Agreement Agreement Area Authority to enter into Agreement Registration of Agreement Agreement binds Kokatha People... 4 Part 4: Future Acts consented to under Agreement Consent to Future Acts Opal Mining Operations within the Andamooka Precious Stones Field... 5 Part 5: Other obligations of Parties Registered Native Title Body Corporate... 5 Part 6: Miscellaneous Only one Acceptance Deed Required Application of RTN to Area B Limited application of Agreement GST... 6 Part 7: Disputes Dispute Resolution... 7 Part 8: Other Matters Notices Review and amendment Termination Severability No waiver Governing law and jurisdiction Giving effect to obligations Settlement Agreement Aboriginal Heritage Agreement... Error! Bookmark not defined. SCHEDULE 1 - CERTIFICATE SCHEDULE 2 - AGREEMENT AREA SCHEDULE 3 - CONTACT DETAILS FOR NOTICES i

3 SCHEDULE 4 - ACCEPTANCE DEED - ANDAMOOKA PRECIOUS STONES FIELD ii

4 PART 1: BACKGROUND 1. Recitals 1.1. On 1 September 2014 the Federal Court of Australia made orders by consent in the Kokatha Native Title Claim SAD90 of 2009 (Part A), recognising the native title rights and interests of the Kokatha People over the Native Title Land (the Determination) The Kokatha Aboriginal Corporation (the Corporation) is a registered Agent Prescribed Body Corporate and performs functions under the NTA. It has, in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), consulted with the Kokatha People and they have consented to the Corporation entering into, administering and implementing this Agreement for and on their behalf The State and the Corporation are entering into this Agreement for the purposes of facilitating Opal Mining Operations in certain areas of the Andamooka Precious Stones Field This Agreement is intended to be registered on the Register of Indigenous Land Use Agreements as a body corporate agreement By Determination No.1 of 1997, Part 7 of the Opal Mining Act 1995 (SA) (OMA) was determined by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs to operate as an Alternative Right to Negotiate scheme under section 43(1) of the NTA, which has effect instead of Subdivision P of Part 2 Division 3 of the NTA. Part 7 of the OMA commenced on 21 April To the extent that this ILUA provides consent to the carrying out of Opal Mining Operations within the Andamooka Precious Stones Field, the Parties agree that the effect of sections 24AA(3) and 24EB of the NTA is that Part 7 of the Opal Mining Act has no operation A cultural heritage survey has been conducted by Kokatha People nominated by the Corporation who have particular knowledge of the Agreement Area, which has resulted in the Map at Schedule 2 to this Agreement. 2. Definitions 2.1. In this Agreement the definitions which are contained in the NTA and the Aboriginal Heritage Act 1988 (SA) (AHA) apply unless otherwise indicated Subject to any contrary intention indicated by subject or context, in the interpretation of this Agreement, including the Background and Schedules, the following terms and expressions apply: Aboriginal Heritage means Aboriginal Sites, Objects or Remains; Aboriginal Sites, Objects or Remains means an Aboriginal site, Aboriginal object or Aboriginal remains as defined in the AHA or Aboriginal remains, a significant Aboriginal area or a significant Aboriginal object as defined in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); Acceptance Deed means the document in SCHEDULE 4; Agent Prescribed Body Corporate has the meaning given to it in the Native Title Act 1993 (Cth); Agreement means this ILUA, including Background and Schedules; Agreement Area has the meaning given to it in clause 5; AHA means the Aboriginal Heritage Act 1988 (SA); 1

5 Andamooka Precious Stones Field means the Andamooka Precious Stones Field under the OMA; Area A means the area marked as Area A on the Map. Area B means: all parts of the Agreement Area excluding those areas which form part of Area A; and the Prohibited Areas. Corporation means the Kokatha Aboriginal Corporation RNTBC ICN 2932 being a body incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and an Agent Prescribed Body Corporate for the purposes of the NTA, or such other Prescribed Body Corporate which is authorised by the Kokatha People to act on their behalf in respect of all matters pertaining to this Agreement; Determination means the consent determination of the Federal Court made on 1 September 2014 in favour of the Kokatha People in the matter of Starkey v the State of South Australia [2014] FCA 924 (Kokatha Native Title Claim); Determination Area has the meaning given to it in the Determination; Execution Date means the date on which this Agreement was executed by all Parties, and if executed on different days, the date on which it was last executed; Future Act has the meaning given to it in the NTA; ILUA means an Indigenous Land Use Agreement under the NTA; Kokatha People means the native title holders as defined in the Determination; Map means the map included in this Agreement at Schedule 2; Mining Act means the Mining Act 1971 (SA); Mining Registrar means: if there is no designated Opal Mining Registrar under the OMA, the Mining Registrar under the Mining Act; or if there is a designated Opal Mining Registrar under the OMA, that person. Minister means the Minister for Energy and Mining for the State of South Australia; Native Title Registrar has the meaning given to it in the NTA; NTA means the Native Title Act 1993 (Cth); Opal Mining Act or OMA means the Opal Mining Act 1995 (SA); Opal Mining Operations has the meaning given to mining operations under the Opal Mining Act 1995 (SA) Parties means the Corporation and the Minister Energy and Mining for the State of South Australia; Precious Stones Prospecting Permit or PSPP has the meaning given to it in section 3 of the OMA; Precious Stones Tenement has the meaning given to it in section 3 of the OMA; Prohibited Areas means: the areas marked on the Map as Prohibited Areas; and any area within 25 metres of either side from the edge of any watercourse or creek bed, and 25 metres from the base of any dune system, whether or not marked on the Map but excluding: 2

6 i. any ground that had been previously disturbed by Opal Mining Operations as of the date of Registration of this Agreement; and ii. substantive tracks that have been subject to continued use to provide access to Opal Mining Operations as of the date of Registration of this Agreement. Prospecting has the meaning given in section 3 of the OMA; Register means the Register of Indigenous Land Use Agreements established and maintained under Part 8A of the NTA; Registration means acceptance of this Agreement upon the Register pursuant to the NTA; Registration Date means the date upon which this Agreement is registered and entered on the Register as a body corporate agreement pursuant to sections 24BA to 24BI of the NTA and regulation 6 of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth); Right to Negotiate means the right to negotiate under Subdivision P of the NTA and any approved alternative State scheme; SANTS means South Australian Native Title Services Ltd; State means the Crown in the right of the State of South Australia and any of its Ministers, agencies, instrumentalities, employees, agents or statutory corporations formed by or pursuant to legislation enacted by the Parliament of South Australia; Settlement Agreement means the Kokatha Native Title Claim Settlement Indigenous Land Use Agreement (SI2014/011); 3. Interpretation 3.1. The rules of construction set out in this clause should be used in the interpretation of this Agreement, unless any contrary intention is indicated by the subject or context Where words are capitalised in this Agreement they are defined in clause Words denoting the singular or plural include the plural and singular respectively unless the contrary is expressly intended to give effect to the expression in context Words denoting individuals shall include corporations and vice versa A reference to any Act or statutory instrument or a particular provision of an Act or statutory instrument is taken to include: all regulations, orders or instruments issued under the legislation or provision; and any modification, consolidation, amendment, re-enactment, replacement or codification of such legislation or provision A reference to a corporation, organisation or other body (whether or not incorporated) is: if that corporation, organisation or other body is replaced by another corporation, organisation or other body, deemed to refer to that other corporation, organisation or other body; and if that corporation, organisation or other body ceases to exist, deemed to refer to the corporation, organisation or other body which most clearly or substantially fulfils the same purposes or objects as the first mentioned corporation, organisation or other body. PART 2: OPERATIVE PROVISIONS 3

7 4. Term of Agreement 4.1. The Agreement will commence on the Registration Date and, subject to clause 20, continues until the date upon which details of this Agreement are removed from the Register pursuant to section 199C of the NTA. 5. Agreement Area 5.1. The Agreement Area is the whole of the land declared as the Andamooka Precious Stones Field pursuant to section 4 of the OMA which lies within the Determination Area, as depicted on the Map. 6. Authority to enter into Agreement 6.1. Each Party represents and warrants to the other Parties to this Agreement that: it has the power to enter into this Agreement and perform its obligations under it; and the person or persons who have executed this Agreement on its behalf have the necessary authority to do so The Corporation warrants that the common law holders have been consulted about, and have consented to, the Corporation entering into this Agreement in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 as evidenced by the certificate set out in SCHEDULE The Corporation has consulted with SANTS about this Agreement pursuant to Regulation 9 of the Native Title (Prescribed Bodies Corporate) Regulations Registration of Agreement 7.1. The Parties agree that this Agreement is intended to be registered on the Register as a body corporate agreement under sections 24BA to 24BI of the NTA and regulation 6 of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) The Corporation authorises and directs the State to apply to register this Agreement and have it entered on the Register as a body corporate agreement under sections 24BA to 24BI of the NTA and regulation 6 of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) Each of the Parties agrees to use its best endeavours to facilitate the Registration or re- Registration of this Agreement as soon as practicable after execution of this Agreement or any amendment or variation to it. 8. Agreement binds Kokatha People 8.1. Pursuant to section 24EA of the NTA, once Registered, this Agreement binds the Kokatha People and all persons holding native title over the Agreement Area The Corporation represents and warrants that the Kokatha People consent to it acting for and on their behalf in respect of the matters specified in this Agreement. 4

8 PART 4: FUTURE ACTS CONSENTED TO UNDER AGREEMENT 9. Consent to Future Acts 9.1. For the purposes of section 24EB of the NTA, the Parties consent to the acts or activities referred to in clause 10.1 of this Agreement being carried out in the Agreement Area after the Registration Date, subject to the conditions set out in that clause and the terms of this Agreement generally The Parties agree that Subdivision P of Part 2 of Division 3 and any approved alternative scheme under section 43(1) of the NTA, including Part 7 of the OMA, is not intended to apply to the acts or activities consented to under this Part The acts or activities consented to under this Part 4 are valid, and the nonextinguishment principle applies to the extent that native title is affected. 10. Opal Mining Operations within the Andamooka Precious Stones Field The Corporation and the Kokatha People consent, within Area A, to the following acts to the extent that they are Future Acts: (c) the registration of Precious Stones Tenements under section 20 of the OMA; the renewal of Precious Stones Tenements under section 22 of the OMA; and Opal Mining Operations being carried out pursuant to a Precious Stones Prospecting Permit or a Precious Stones Tenement granted or renewed after the Registration Date to or by any person or corporation who has executed an Acceptance Deed and provided it to the Mining Registrar The Corporation and the Kokatha People do not consent to: (c) Opal Mining Operations under a Precious Stones Prospecting Permit being carried out within Area B; the registration of Precious Stones Tenements, or the renewal of Precious Stones Tenements which permit Opal Mining Operations to be carried out within Area B; or the removal of old growth trees in the course of any of the acts set out in clause PART 5: OTHER OBLIGATIONS OF PARTIES 11. Registered Native Title Body Corporate The Corporation warrants that it will comply with all relevant requirements under the NTA and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) in carrying out its obligations under this Agreement. 1 EXPLANATORY NOTE: Opal mining operations not authorised by this ILUA, may be authorised pursuant to an agreement under Part 7 of the OMA.. 5

9 12. Obligations on State From the Registration Date, the State will advise: new applicants for PSPPs and Precious Stones Tenements; and applicants for renewals of PSPPs and Precious Stones Tenements of the requirement not to undertake Opal Mining Operations anywhere in the Agreement Area other than in accordance with this Agreement, or a native title mining agreement authorised under Part 7 of the OMA or subdivision P, Part 2, Division 3 of the NTA The State will provide applicants for the grant or renewal of PSPPs and precious Stones Tenements with a copy of the Acceptance Deed The State will make copies of this Agreement available for viewing by applicants and holders of PSPPs and Precious Stones Tenements and will provide a copy of this Agreement and/or the Map on request From the Registration Date, and subject to clause 13, the Mining Registrar shall not register or renew a Precious Stones Tenement in Area A where an Acceptance Deed has not been executed and provided to the Mining Registrar, unless the applicant has demonstrated to the Mining Registrar that they have otherwise complied with the requirements of Part 7 of the OMA or the NTA. PART 6: MISCELLANEOUS 13. Only one Acceptance Deed Required Notwithstanding any other clause of this Agreement, once a person or corporation has entered into an Acceptance Deed over the Andamooka Precious Stones Field under this Agreement they will not be required to enter into another for any additional PSPP or Precious Stones Tenement applied for as the Acceptance Deed covers all Opal Mining Operations by that person or corporation within Area A. 14. Application of RTN to Area B The Parties agree that Subdivision P of Part 2, Division 3 of the NTA (the Right to Negotiate), and any alternative provisions approved under section 43 of the NTA from time to time, including as provided for under Part 7 of the OMA, continue to apply in relation to Area B. 15. Limited application of Agreement This Agreement only applies to Opal Mining Operations undertaken pursuant to the OMA. It does not apply to mining carried out under any other Act Subject to clause 25, this Agreement is not intended to affect the operation of any other ILUAs or native title agreements which apply within the Agreement Area, including the Settlement Agreement and any other agreement reached pursuant to Part 9B of the Mining Act or Subdivision P, Part 2, Division 3 of the NTA in the Agreement Area. 16. GST The Parties agree that, if a goods and services tax (GST) applies under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or associated legislation (GST legislation) in relation to any taxable supply (within the GST legislation) (taxable supply) 6

10 made by a Party (supplier) to another Party (recipient) under or pursuant to this Agreement: (c) The amount payable by the recipient to the supplier in respect of the taxable supply (payment) does not include GST; The supplier may, in addition to the payment, recover from the recipient (and the recipient will pay to the supplier) an additional amount on account of the GST, such additional amount to be calculated in accordance with the GST legislation; and The supplier will provide to the recipient a tax invoice (within the meaning of the GST legislation) in respect of the taxable supply as required by the GST legislation. PART 7: DISPUTES 17. Dispute Resolution The Parties will make every effort to ensure that disputes do not arise in carrying out the terms of this Agreement If a dispute arises in relation to this Agreement the Parties will: (c) make every reasonable effort to resolve the dispute without recourse to court proceedings; give notice of the reasons for dispute to the other Parties, as soon as possible; and as quickly as possible, nominate representatives who will negotiate in good faith with a view to resolving the dispute If the Parties are unable to resolve the dispute quickly, the Parties will, unless it is agreed between them that it would be preferable to refer the dispute directly to an expert in accordance with clause 17.5, appoint a mediator to mediate the dispute in accordance with clause Mediation: (c) (d) A mediator will be appointed by agreement between the Parties or, failing that, by the President of the Law Society of South Australia at the request of any Party. Each Party will bear its own costs for mediation arising out of this Agreement. The Parties involved in the mediation will share equally any costs of a mediator. Any resolution arising from mediation will not be binding on any Party unless the resolution is in writing and signed by all of the Parties to the dispute. If a dispute is not resolved within a reasonable time following mediation, and if the disputing parties are the State and the Corporation, the State and the Corporation may agree to appoint an expert to determine the dispute in accordance with clause Expert s determination: The State and the Corporation may agree to appoint a person who has an understanding of or experience in the subject matter of the dispute (Expert) to determine the dispute. 7

11 (c) (d) If the State and the Corporation fail to agree a mutually acceptable Expert, then either party may request the President of the Law Society of South Australia to appoint an Expert to determine the dispute. The State and the Corporation agree that the Expert s determination is final and binding on them. Unless otherwise determined by the Expert, both parties will bear their own costs and expenses in relation to the Expert s determination, and will share equally any costs of the Expert Any information or documents exchanged and any offers of settlement made pursuant to this clause in an attempt to settle a dispute between the Parties are provided on a without prejudice basis Nothing in this clause prevents a Party seeking an injunction or taking other interlocutory proceedings to prevent imminent harm to the Party s interests. PART 8: OTHER MATTERS 18. Notices Any notice required to be given in accordance with this Agreement must be in writing and be sent by registered post, facsimile transmission or to an electronic address provided by a Party for that purpose SCHEDULE 3 contains the contact details for each of the Parties that are current as at the date of execution of this Agreement A Party may change its contact details for notices by writing to the other Parties and the Native Title Registrar. 19. Review and amendment No amendment or variation of this Agreement is valid or binding on a Party unless made in writing and executed by the Parties and, if necessary, duly registered as an ILUA under the NTA. 20. Termination This Agreement may be terminated by agreement in writing of the Parties. If the Parties agree to terminate this Agreement then they will jointly apply to have this Agreement removed from the Register. 21. Severability Each word, phrase, sentence, paragraph and clause (Provision) of this Agreement is severable and if a court determines that a Provision is unenforceable, illegal or void the court may sever that Provision which becomes inoperative and such severance will not affect the other Provisions of this Agreement. 22. No waiver A failure to exercise or any delay in exercising any right, power or remedy by a party does not operate as a waiver. 8

12 22.2. A waiver is not valid or binding on the party granting that waiver unless made in writing. 23. Governing law and jurisdiction This Agreement is governed by the laws in force in South Australia. Each Party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in South Australia in connection with matters concerning this Agreement. 24. Giving effect to obligations The Parties agree to promptly do whatever is reasonably required of them to give full effect to their obligations under this Agreement, including all things necessary to submit, or resubmit should this be required, the application for Registration, or if any variation or amendment of this Agreement needs Registration. 25. Settlement Agreement The parties acknowledge that the Settlement Agreement: addresses the validity of acts done on the Agreement Area before the registration of the Settlement Agreement on the Register (see clause 12 of the Settlement Agreement; and provides consent to the doing of certain acts and the carrying out of certain Opal Mining Operations within parts of the Andamooka Precious Stones Field after the registration of the Settlement Agreement on the Register (see clause 22 of the Settlement Agreement) The parties intend that this Agreement constitutes the entire agreement between the parties relating to Opal Mining Operations done on the Agreement Area after the Registration Date. To the extent that any part of this Agreement is inconsistent with clause 22 of the Settlement Agreement, the provisions of this Agreement prevail. 9

13 EXECUTED BY THE PARTIES THE KOKATHA ABORIGINAL ) CORPORATION in accordance with section 99-5 ) of the Corporations (Aboriginal and Torres Strait ) Islander) Act 2006 (Cth) ) Director (delete the inapplicable) Director/Corporation Secretary Name (please print) Name (please print) Signed by the Minister for Energy and Mining for the State of South Australia Dated In the presence of.. Witness. 10

14 SCHEDULE 1- CERTIFICATE Regulation 9 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) Certification by common law holders Those whose signatures appear immediately below are all members of the Kokatha Aboriginal Corporation (Members) who certify that: 1. South Australian Native Title Services Ltd (Native Title Service Provider) has been consulted about the proposed decision to enter into the (the Agreement) and the views of that body have been considered in accordance with Regulation 8 of the PBC Regulations. 2. The common law holders were consulted about, and consented to, the proposed decision to enter into the Agreement in accordance with Regulation 8 of the PBC Regulations before the Kokatha Aboriginal Corporation entered into the Agreement. Name Signature Name Signature Name Signature Name Signature Name Signature Certification by Native Title Service Provider I hereby certify that South Australian Native Title Services Ltd has been consulted about the proposed native title decision by the body corporate... Signature of an authorised member of South Australian Native Title Services Ltd Name printed.. 11

15 SCHEDULE 2 - AGREEMENT AREA 12

16 `Andamooka Pedy Precious Stones Field SCHEDULE 3 - CONTACT DETAILS FOR NOTICES Kokatha Aboriginal Corporation The Chairperson Kokatha Aboriginal Corporation RNTBC ICN Flinders Terrace PORT AUGUSTA SA chrisl@kokatha.com.au And to: Mr S Berg Berg Lawyers 3/118 Halifax Street ADELAIDE SA sberg@berglawyers.com.au The Minister for Energy and Mining for the State of South Australia ADELAIDE SA 5001 Atten: Alex Blood, Executive Director Mineral Resources Division Telephone: (08) alexandra.blood@sa.gov.au 13

17 `Andamooka Pedy Precious Stones Field SCHEDULE 4 - ACCEPTANCE DEED - ANDAMOOKA PRECIOUS STONES FIELD Part A: The Applicant agrees, upon duly completing and signing this Acceptance Deed, to be bound by the terms of the Acceptance Deed. This Acceptance Deed is made as a deed poll by: I, (Applicant) Insert name and, if applicable, ABN of: (Insert address of Applicant) make this deed poll in relation to: Prospecting for precious stones by the Applicant within the Agreement Area and/or Opal Mining Operations on a Precious Stones Tenement/s by the Applicant within the Agreement Area The Applicant covenants as follows: 1. Covenant to be Bound 1.1. The Applicant enters into this Acceptance Deed by duly completing and signing this Acceptance Deed and providing the original to the Mining Registrar. 2. Term 2.1. Subject to clause 2.2, this Acceptance Deed comes into effect on the date upon which the Applicant complies with clause 1 of this Acceptance Deed and continues for the duration of the term of the Agreement If the Agreement is removed from the Register, the Acceptance Deed will continue until the expiry of the Precious Stones Tenement or PSPP that is in place immediately prior to the Agreement s removal from the Register. 3. Parties to Acceptance Deed 3.1. Upon compliance with clause 1 of this Acceptance Deed a contract on the terms of this Acceptance Deed comes into operation between the Applicant, the Corporation and the Kokatha People. 4. Benefit 4.1. This Acceptance Deed is made by the Applicant in favour, and for the benefit, of the parties to the Agreement being the Corporation (for and on behalf of the Kokatha People), and the Minister for Energy and Mining on behalf of the State of South Australia. 5. Applicant activities The Applicant covenants that it will: 14

18 `Andamooka Pedy Precious Stones Field 5.1. only undertake Opal Mining Operations on Area A as shown on the Map attached to this Deed (noting that the Prohibited Areas are excluded from Area A); 5.2. not remove any old growth tree in the course of any Opal Mining Operations; and 5.3. not undertake Opal Mining Operations in the Agreement Area which damage, disturb or interfere with a Aboriginal Site or Object or Remains. 6. Aboriginal Heritage Act continues to apply 6.1. The AHA continues to apply within the Agreement Area and nothing in this Acceptance Deed or the Agreement derogates from any obligations to protect and preserve Aboriginal Heritage pursuant to the AHA. 7. Discoveries during Opal Mining Operations 7.1. If, at any time during the carrying out of any Opal Mining Operations in the Agreement Area an Applicant identifies any site, object or remains which may be an Aboriginal Site, Aboriginal Object or Remains, the Applicant must, in addition to any other obligations under the AHA: (c) promptly report the location of that site, object or those remains to the Corporation; cease to carry out the Opal Mining Operations in the vicinity of the site, object or remains; leave where discovered, and not damage, disturb or interfere with, the relevant site, object or remains, unless and until: i ii iii the Applicant is advised in writing, either by the Corporation or a specialist, that the object or remains is not an Aboriginal Site, Object or Remains; or The site, object or remains has been relocated consistently with section 37 of the AHA; or the Applicant is otherwise authorised under the AHA to proceed; and (d) advise the Registrar before re-commencing with the Opal Mining Operations. 8. Other authorised mining activities 8.1. This Acceptance Deed does not apply to any mining activities or proposed mining operations over the Agreement Area that are: 9. Dispute Resolution authorised by a separate native title mining agreement under Part 7 of the OMA; or to be undertaken pursuant to the Mining Act 1971, or the Petroleum and Geothermal Energy Act The Parties will make every effort to ensure that disputes do not arise in carrying out the terms of this Acceptance Deed If a dispute arises in relation to this Acceptance Deed the Parties will: make every reasonable effort to resolve the dispute without recourse to court proceedings; and give notice of the reasons for dispute to the other Parties, as soon as possible. 15

19 `Andamooka Pedy Precious Stones Field 9.3. If a Party receives a notice pursuant to clause 9.2, they must respond to that notice within 14 days setting out their response to the dispute, and nominating a representative or representatives who will negotiate in good faith with a view to resolving the dispute Representatives designated pursuant to clause 9.2 must, within 21 days (or such further period as the representatives agree is appropriate) after the receipt of notice referred to in clause 9.2, investigate, negotiate and endeavour to settle the dispute If the Parties are unable to resolve the dispute within one month of the notice of dispute, the Parties will appoint a mediator to mediate the dispute in accordance with clause Mediation (c) i ii iii iv 10. Notice Details A mediator will be appointed by agreement between the Parties or, failing that, by the President of the Law Society of South Australia at the request of any Party. The mediator appointed will have regard to the following: the intent of the Parties in entering into this Acceptance Deed; the preservation of the rights and interests of the Kokatha People, including the rights recognised in the Determination; the views on the matter expressed by each of the Parties and by the Kokatha People; and the growth and development of the Kokatha People s social, cultural and economic structure. Each Party shall bear its own costs for mediation arising out of this Acceptance Deed. The Parties involved in the mediation will share equally any costs of a mediator. Kokatha Aboriginal Corporation The Chairperson Kokatha Aboriginal Corporation RNTBC ICN Flinders Terrace PORT AUGUSTA SA chrisl@kokatha.com.au And to: Mr S Berg Berg Lawyers 3/118 Halifax Street7 Hurtle Square ADELAIDE SA sberg@berglawyers.com.au Applicant details as per Part A of the executed Acceptance Deed 11. Definitions Terms defined in the Agreement have those defined meanings in this Acceptance Deed unless defined below or unless the context requires otherwise. Aboriginal Heritage means Aboriginal Sites, Objects or Remains; 16

20 `Andamooka Pedy Precious Stones Field Aboriginal Sites, Objects or Remains means an Aboriginal site, Aboriginal object or Aboriginal remains as defined in the AHA or Aboriginal remains, a significant Aboriginal area or a significant Aboriginal object as defined in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); Acceptance Deed means this document; Agreement means the, including the Background and Schedules; Agreement Area means the area of land described in clause 5 of the Agreement and depicted on the map at SCHEDULE 2 of the Agreement; AHA means the Aboriginal Heritage Act 1988 (SA); Andamooka Precious Stones Field means the Andamooka Precious Stones Field as proclaimed under the OMA, Applicant means a person signing this Acceptance Deed; Area A - means the area marked as Area A on the Map; Area B means: all parts of the Agreement Area excluding those areas which form part of Area A; and the Prohibited Areas. Corporation means the Kokatha Aboriginal Corporation (RNTBC) ICN 2932 being a body incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and an Agent Prescribed Body Corporate for the purposes of the NTA, or such other Prescribed Body Corporate which is authorised by the Kokatha People to act on their behalf in respect of all matters pertaining to this Acceptance Deed; Map means the map annexed at Schedule 2 SCHEDULE 2 of the Agreement and attached to this Acceptance Deed; Opal Mining Operations has the meaning given to mining operations under the OMA; Mining Registrar means: if there is no designated Opal Mining Registrar under the OMA, the Mining Registrar under the Mining Act; or if there is a designated Opal Mining Registrar under the OMA, that person; Minister means the Minister for Energy and Mining for the State of South Australia; OMA means the Opal Mining Act 1995 (SA); Parties means the Applicant and the Corporation; Precious Stones Prospecting Permit or PSPP has the meaning given to it under the OMA; Prohibited Areas means: the areas marked on the Map as Prohibited Areas; and any area within 25 metres of either side from the edge of any watercourse or creek bed, and 25 metres from the base of any dune system, whether or not marked on the Map but excluding: i. any ground that had been previously disturbed by Opal Mining Operations as of the date of Registration of this Agreement; and ii. substantive tracks that have been subject to continued use to provide access to Opal Mining Operations as of the date of Registration of this Agreement. Prospecting has the meaning given in section 3 of the OMA; 17

21 `Andamooka Pedy Precious Stones Field Executed by the Applicant/s as a deed poll [Insert name of Applicant/s] Signed by Applicant/s... Witness Name. Witness Signature. Date: 18

22 `Andamooka Pedy Precious Stones Field MAP 19