FMG YINDJIBARNDI 4

FMG - Yindjibarndi Land Access Agreement

PART C FMG WORKING GROUP

C1 ESTABLISHMENT OF THE FMG WORKING GROUP

C1.1 Within 1 month following the date of this Agreement, the Yindjibarndi People must establish

a committee to be known asthe "FMG Working Group".

C1.2 The FMG Working Group may only comprise a maximum of eight (8) members of theYindjibarndi People and must meet within 21 days following receipt of a written request

from FMG.

C1.3 The Yindjibarndi People must advise FMG of the members of the FMG Working Group upon

its formation and upon any departure of any person from the FMG Working Group and upon

the admission of any person to the FMG Working Group.

C1.4 The Yindjibarndi People warrant that the FMG Working Group is authorised by theYindjibarndi People to act in relation to all matters.

C2 ESTABTISHMENT OF FMG SUB-COMMITTEES

C2.1 The FMG Working Group may from time to time establish sub-committees for any purposes

related to FMG.

C2.2 The FMG Working Group must establish a sub-committee of not more than four (4) persons

to be known asthe "FMG Heritage Sub-Committee" for the purpose of dealing with all

matters which this Agreement expressly contemplates will be dealt with by thatsub-committee.

C2.3 FMG must, unless there is reasonable excuse, meet with the FMG Heritage Sub-Committee

within 2L days following receipt of a written request from the FMG Heritage Sub-Committee.

C2A On establishment of a sub-committee for any purpose related to FMG, the FMG Working

Group must advise FMG of the members of the sub-committee upon its formation and upon

any departure of any person from the sub-committee and upon the admission of any person

to the sub-committee.

C2.5 The Yindjibarndi People warrant that at all times any sub-committee established by the FMG

Working Group for any purpose related to this Agreement is authorised by the Yindjibarndi

People to act in relation to that purpose.

C3 FMG WORKING GROUP'S WAY OF OPERATING

C3.1 The FMG Working Group and any sub-committee may determine its own internalprocedures.

C4 FMG WORKING GROUP'S COMMITMENTSTO FMG

C41 The FMG Working Group must within any prescribed timeframe, and otherwise in a timely

manner, attend to all matters which this Agreement contemplates will be attended to by the

FMG Working Group.

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C4.2 The FMG Working Group must regularly report to FMG about the activities and concerns ofthe FMG Working Group.

C4.3 The functions of the FMG Working Group in no way restrict the Parties from communicatingwith each other in other ways.

C5 FMG COMMITMENTS TO THE FMG WORKING GROUP

C5.1 FMG must:

(1) keep the FMG Working Group informed about its existing and proposed operations

within the Agreement Area, and on the implementation of this Agreement;

(2) inform the FMG Working Group of significant development proposals being

developed by FMG within the Agreement Area;

(3) take into account any recommendations made or advice given by the FMG Working

Group within the Agreement Area;

(4) provide regular and accurate information to the FMG Working Group concerning

FMG's existing operations within the Agreement Area;

(5) inform the FMG Working Group as to the manner in which FMG has considered

and/or implemented any advice or recommendations of the FMG Working Group;

and

(6) answer queries, and provide information to the FMG Working Group as requested.

C5.2 Should the FMG Working Group so request, FMG must use its best endeavours to ensure an

FMG Aboriginal Environmental Officer is available to attend a meeting of the FMG Working

Group.

C6 COSTS OF THE FMG WORKING GROUP AND FMG HERITAGE SUBCOMMITTEE

C6.1 FMG must:

(1) reimburse relevant members for their reasonable "out of pockef' costs of transport,

accommodation and meals when attending such meetings of the FMG Working

Group and the FMG Heritage Sub-Committee as are requested by FMG or otherwiseagreed to in writing by FMG; and

(2) reasonably consider any request to pay the costs of any external advice which theFMG Working Group considers seeking; and

(3) pay each relevant member a daily fee of 5500 per day indexed to CPI for theirattendance at such meetings of the FMG Working Group and the FMG Heritage Sub-

Committee as are requested by FMG or otherwise agreed to in writing by FMG.

C7 DISPUTE RESOLUTION

C7.1 Disputes between FMG and the FMG Working Group must be dealt with in accordance withclause A22 (Dispute Resolution).

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PART D - ABORIGINAL CULTURAL HERITAGE

D1 INTERPRETATION

D1 .1 For the purposes of this Part:

(1) "Aboriginal Cultural Heritage Principles" means the following principles:

(a) the recognition, protection and conservation of AboriginalCultural Heritage

in the Agreement Area should be based on respect for the Yindjibarndi

People's culture, traditions, beliefs and practices;

(b) interference with or damage to Aboriginal Cultural Heritage should be

avoided to the greatest practicable extent possible;

(c) where the Yindjibarndi People do not want particular Aboriginal CulturalHeritage to be harmed or interfered with, their view will be respected and

addressed;

(d) the Yindjibarndi People should be recognised as the primary custodians,

keepers and knowledge holders of Aboriginal Cultural Heritage in theAgreement Area;

(e) there is a need to establish timely and efficient processes for themanagement of activities that may impact upon Aboriginal Cultural Heritage;

(f) there is a need to comply with the Aboriginol Heritoge Act 1972 (WA); and

(g) the views of the Yindjibarndi People are fundamental in assessing Aboriginal

Cultural Heritage and managing any activity likely to disturb, damage,

interfere with, excavate, relocate, remove or harm Aboriginal Cultural

Heritage;

(2) 'ACMC" means the Aboriginal Cultural Material Committee established under s28 oflhe Aboriginol Heritoge Act L972 (WA);

(3) "Anthropologist" means a person with appropriate qualifications to conduct an

ethnographic survey and to prepare an Ethnographic Survey Report;

(4) "Approved Heritage Professional" means any Archaeologist and any Anthropologistagreed by FMG and the FMG Heritage Sub-Committee in good faith to be an

approved heritage professional;

(5) "Archaeological Survey" means a survey to identify archaeological sites and cultural

materials for the purposes of preparing an Archaeological Survey Report;

(6) "Archaeological Survey Report" means a report prepared pursuant to clause

D6.s(1Xb);

(7) "Archaeologist" means a person with appropriate qualifications to conduct an

Archaeological Survey and prepare an Archaeological Survey Report;

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(8) "Confidential lnformation" means any Cultural Heritage Report, any Preliminary

Archaeological Survey Report, any Preliminary Ethnographic Survey Report and

includes information about Aboriginal Cultural Heritage;

(9) "Cultural Heritage Survey Body'' means any person agreed by FMG and the FMG

Heritage Sub-Committee to be a cultural heritage survey body;

(10) "Cultural Heritage Report" means any Ethnographic Survey Report and any

Archaeological Survey Report;

(1 1) "DlA" means the Department of lndigenous Affairs;

(12) "Ethnographic Survey" means a Cultural Heritage Survey to identify ethnographic

sites and/or make an ethnographic assessment of archaeological sites for thepurposes of preparing an Ethnographic Survey Report;

(13) "Ethnographic Survey Report" means a report prepared pursuant to clause

D6.e(2Xb);

(14) "FMG Heritage Sub-Committee" means the subcommittee established in

accordance with clause C2.2

(15) "Ground-Disturbing Activity" means any ground disturbing activity which is not a

Non-Ground-Disturbing Activity;

(16) "Non-Ground-Disturbing Activity" means any activity which does not physically

disturb the ground surface, such as aerial surveys, geological mapping, rock chip

hand specimen and soil sampling only using handheld tools and non-ground

distu rbing geophysical surveys;

(17) "Preliminary Archaeological Survey Report" means a preliminary Archaeological

Survey Report as described in clause D6.9(1Xa);

(18) "Preliminary Ethnographic Survey Report" means a preliminary Ethnographic Survey

Report as described in clause D6.9(2Xa);

(19) "Section 18 Application" means any application made pursuant to section l-6 or

section 18 of the Aboriginal Heritoge Act 1972 (WA)in respect of Aboriginal Cultural

Heritage located within the Agreement Area;

(20) "section 18 Consent" means a consent given under section L6 and 18 of the of the

Aboriginal Heritage Act 1972 (WA)in respect of Aboriginal Cultural Heritage located

within the Agreement Area;

(21) "Survey Area" means the proposed survey area described in Survey Request;

(22) "Survey Request" means a written request for a Cultural Heritage Survey over a

proposed survey area within the Agreement Area which describes or attaches the

following:

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(a) three sets of topographic maps showing the proposed survey area and being

of a reasonable scale commensurate with undertaking field work (fit for thepurposes of a survey);

(b) the nature, scope and objectives of the Project Operations to be carried outon the proposed survey area, including any infrastructure which FMG

proposes for the survey area;

(c) details of existing access routes to the proposed survey area, (including

airstrips);

(23) "Uncleared Area" in relation to a proposed Ground-Disturbing Activity means any

area within the Agreement Area other than:

(a) an area which has been the subject of a Cultural Heritage Survey that has

been prepared forthe purpose of site clearance in relation to an activitysimilar to the proposed Ground-Disturbing Activity; and

(b) an existing dedicated or gazetted road; and

(c) any other area agreed in writing by the Yindjibarndi People.

D2 PROTECTION OF ABORIGINAL CULTURAL HERITAGE

D21 FMG must take all reasonable and practicable measures to ensure that Project Operations do

not harm Aboriginal Cultural Heritage.

D2.2 FMG must use all reasonable endeavours to carry out Project Operations in a manner which

minimises any impact on Aboriginal Cultural Heritage and in a manner which is consistent

with the Aboriginal Cultural Heritage Principles.

D2.3 FMG and the Yindjibarndi People must work together to:

(1) address the concerns of the Yindjibarndi People in relation to Aboriginal Cultural

Heritage; and

(2) ensure Cultural Heritage Surveys are carried out in an agreed manner.

D2A FMG must not interfere with or disturb Aboriginal Cultural Heritage without a Section L8

Consent obtained in accordance with this Agreement.

D3 YINDJIBARNDI PEOPLE TO PROVIDE DETAILS OF PREVIOUS CULTURAL HERITAGE SURVEYS

D3.1 The Yindjibarndi People will use their best endeavours to:

(1) within 2 months following the date of this Agreement, provide to FMG a list of all

reports of surveys of Aboriginal Cultural Heritage undertaken in relation to theProject Area which are in the possession, custody or control of Yindjibarndi People or

any representative of the Yindjibarndi People, together with the following particulars

for each report where available:

(a) the title and date of preparation of the report;

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(b) the author ofthe repor|

(c) the purpose of the report;

(d) details of any survey team who participated in any survey referred to in thereport;

(e) details of any archaeologists and/or anthropologist who participated in any

survey referred to in the report;

(0 a copy of any plan or map contained in the report which shows the area ofany survey referred to in the report and the general spatial location of any

Aboriginal Cultural Heritage (ee GPS co-ordinates);

(g) a photocopy of any portion of the report which shows the geographical

co-ordinates of any survey referred to in the report and/or the spatial

location of any Aboriginal Cultural Heritage; and

(h) a description of the nature of any Aboriginal Cultural Heritage referred to inthe repor1 and

(2) provide to FMG an updated list and accompanying particulars as and when theybecome aware of any report of a survey of Aboriginal Cultural Heritage undertaken

in relation to the Project Area which is not on any list previously provided in

accordance with clause D3.1(1) or this clause D3.1(2).

D3.2 Nothing in this clause shall require the Yindjibarndi People to disclose a report which wouldbreach intellectual property rights or which is the subject of legal professional privilege orwhich was prepared for a purpose other than for site clearance.

D4 FMG NOTTO UNDERTAKE GROUND DISTURBING WORK

D4.1 FMG must not undertake any Ground-Disturbing Activity on any Uncleared Area.

D4.2 Nothing in this Agreement prevents FMG from undertaking any Non-Ground-Disturbing

Activity.

D5 CONDUCT OF CULTURAL HERITAGE SURVEYS

D5.1 The Parties must ensure that all surveys and assessments of Aboriginal Cultural Heritage

carried out, authorised or commissioned by them in the Agreement Area are carried out inaccordance with this Part D.

D5.2 The FMG Heritage Sub-Committee may appoint a Cultural Heritage Survey Body to organise

and manage Cultural Heritage Surveys in accordance with this Agreement.

D6 CULTURAL HERITAGE SURVEY

D6.1 FMG may at any time issue a Survey Request to the FMG Heritage Sub-Committee.

D6.2 Upon receipt of a Survey Request from FMG, the FMG Heritage Sub-Committee, must

consider whether a Cultural Heritage Survey is required over the Survey Area, and if so, must:

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(1) use its best endeavours to organise one or more Cultural Heritage Surveys which:

(a) satisfy the requirements of the Survey Request;

(b) comprise only members of the Yindjibarndi People who are likely to have

knowledge of the Survey Area;

(c) can be undertaken as soon as possible afterthetime set out in the Survey

Request having regard to:

(i) the number of other Cultural Heritage Surveys the Yindjibarndi

People have agreed to participate in at the time of receiving theSurvey Request; and

(ii) the cultural and other non-heritage survey obligations of theYindjibarndi People; and

(2) as soon as possible, but in any event within L4 days, advise FMG of:

(a) the times at which the Cultural Heritage Survey requested in the Survey

Request may be undertaken;

(b) whether any Cultural Heritage Survey requested in the Survey Request need

comprise either an Archaeological Survey or an Ethnographic Survey or both;

(c) any Approved Heritage Professional proposed to be engaged in relation toany Cultural Heritage Survey requested in the Survey Request;

(d) whether the Approved Heritage Professional is able complete the Cultural

Heritage Survey and report in accordance with the survey request; and

(e) the likely resources required to carry out any Cultural Heritage Survey

requested in the Survey Request.

D6.3 lf the Approved Heritage Professional informs the FMG Heritage Sub-Committee that theApproved Heritage Professional is unable to comply with any obligation of the Yindjibarndi

People under this agreement relating to the timing and content of Cultural Heritage Survey

Reports, the FMG Heritage Sub-Committee must:

(1) propose an alternative Approved Heritage Professionalto be engaged in relation tothe Cultural Heritage Survey.

(2) advise FMG of the name of the alternative Approved Heritage Professional within 7days of the FMG Heritage Sub-Committee becoming aware that an alternativeApproved Heritage Professional is required.

D6.4 Following issue of the notice contemplated by clause D6.2(21, FMG and the FMG Heritage

Sub-Committee must liaise in good faith to ensure:

(1) land access is secured to all parts of the relevant Survey Area;

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(2) necessary logistical support is arranged for the entirety of the Cultural Heritage

Survey; and

(3) that each person is fully appraised of any matter which might delay or otherwiseaffect the proposed Cultural Heritage Survey, including funerals.

D6.5 The FMG Heritage Sub-Committee must:

(1) engage the members of the Yindjibarndi People who will participate in the Cultural

Heritage Survey;

(2) engage any Approved Heritage Professional notified in accordance with clause

D6.2(21or any alternative Heritage Professional notified in accordance with clause

D6.3(2).

(3) make all arrangements for the members of the Yindjibarndi People and any

Approved Heritage Professional engaged in accordance with clauses D6,5(1) and

D6.5(2), including travel and accommodation.

D6.6 At least 48 hours prior to the commencement of any Cultural Heritage Survey, the FMG

Heritage Sub-Committee must notify FMG in writing of the names of the members of theYindjibarndi People who will participate in the Cultural Heritage Survey and the name of any

Approved Heritage Professional engaged for the purpose of the Cultural Heritage Survey.

D6.7 lf any Cultural Heritage Survey includes an Ethnographic Survey, the FMG Heritage Sub-

Committee warrants that any member of the Yindjibarndi People who:

(1) is notified in accordance with clause D6.6; and/or

(2) participates in the Cultural Heritage Survey,

has appropriate knowledge under Aboriginal law and custom for the Survey Area to ensure

the validity and legitimacy of the Cultural Heritage Survey.

D6.8 During the conduct of any Cultural Heritage Survey, the following persons may be present:

(1) the members of the Yindjibarndi People engaged in accordance with clause D6.5(1);

and

any Approved Heritage Professional engaged in accordance with clause D6.5(2).

representatives of FMG, subject to those representatives respecting the privacy ofthe members of the Yindjibarndi People should they wish discuss culturally sensitive

matters.

D6.9 Following the Cultural Heritage Survey, the FMG Heritage Sub-Committee must procure thatthe:

(1) Archaeologist who participated in the Cultural Heritage Survey:

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(2)

(3)

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(a) within 7 days following completion of the "on country'' inspection of theSurvey Area, prepares and provides to FMG a preliminary Archaeological

Survey Report, which at a minimum contains the following:

(i) details of the survey team who participated in the Cultural Heritage

Survey;

(ii) a plan or map which shows the area of the survey undertaken and

the spatial location of any Aboriginal Cultural Heritage identifiedwithin the area of the survey;

(iii) a description of the nature and extent of any Aboriginal Cultural

Heritage identified within the area of the survey; and

(iv) any qualifications to the preliminary Archaeological Survey Report;

(b) prepares as soon as reasonably practicable a final Archaeological Survey

Report, which must include relevant discussion under the followingheadings:

(i) introduction and description of survey area;

(ii) search of register of Aboriginal Sites;

(iii) names of persons who participated on the survey;

(iv) the archaeological survey methodology;

(v) the archaeological survey results;

(vi) discussion of archaeological survey results;

(vii) conclusion and any recommendations of the FMG Heritage Sub-

Committee for the management of any Aboriginal Cultural Heritage

identified during the Cultural Heritage Survey; and

(viii) a certification signed by the Archaeologist that the report fairlyreports on each of the matters referred to above; and

(2) Anthropologist who participated in the Cultural Heritage Survey:

(a) within 7 days following completion of the "on country'' inspection of theSurvey Area, prepares and provides to FMG a preliminary Ethnographic

Survey Report, which at a minimum contains the following:

(i) details of the survey team who participated in the Cultural Heritage

Survey;

(ii) a plan or map which shows the area of the survey undertaken and

the spatial location of any Aboriginal Cultural Heritage identifiedwithin the area of the survey;

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FMG - Yindjibarndi land Access Agreement

(iii) a description of the nature and extent of any Aboriginal Cultural

Heritage identified within the area of the survey; and

(iv) any qualifications to the preliminary Ethnographic Survey Report;

(b) prepares as soon as reasonably practicable a final Ethnographic Survey

Report, which must include relevant discussion under the followingheadings:

(i) executive summary;

(ii) introduction;

(iii) ethnographicsurveymethodology;

(iv) archival research;

(v) field survey of Project Area;

(vi) previously recorded sites proposed for disturbance;

(vii) previously recorded sites not proposed for disturbance;

(viii) assessment and results of the survey area;

(ix) sites assessed;

(x) discussion;

(xi) any recommendations of the FMG Heritage Sub-Committee for themanagement of any Aboriginal Cultural Heritage identified in theduring the Cultural Heritage Survey; and

(xii) conclusions; and

(xiii) a certification signed by the Archaeologist that the report fairlyreports on each of the matters referred to above.

D6.10 Without detracting from the obligation contained in clause D6.9 to prepare a finalArchaeological Survey Report and a final Ethnographic Survey Report as soon as reasonablypracticable, the FMG Heritage Sub-Committee must ensure that any such report is deliveredto FMG:

(1) at the same time any such finalised report is cleared by the FMG Heritage Sub-

Committee; and

(2) notwithstanding any other provision of this Agreement, in any event within 60 days

following issue of the Survey Request.

D6.11 Neither a Preliminary Archaeologicalsurvey Report nor a Preliminary Ethnographic Survey

Report authorises the disturbance or interference of any Aboriginal Cultural Heritage in theAgreement Area.

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FMG - Yindjibarndi Iand Access Agreement

D6.12 The Yindjibarndi People must take all reasonable steps to assist the preparation of any finalArchaeological Survey Report and any final Ethnographic Survey Report.

D6.13 The FMG Heritage Sub-Committee must ensure that any recommendations contained in anyArchaeological Survey Report or any Ethnographic Survey Report are consistent with theAboriginal Cultural Heritage Principles.

D6.14 The FMG Heritage Sub-Committee must provide to FMG immediately following itspreparation a copy of any final Archaeological Survey Report and any final EthnographicSurvey Report referred to in clause D6.9.

D7 RECOMMENDATIONS OF WORKING GROUP

D7.1 Within 35 days of receiving a Cultural Heritage Report, FMG must advise the FMG HeritageSub-Committee whether it agrees or disagrees with any recommendations contained in theCultural Heritage Report for the management of any Aboriginal Cultural Heritage.

D7.2 subject to clause D8, if FMG advises the FMG Heritage sub-committee that:

(1) it agrees with any recommendations contained in the Cultural Heritage Report forthe management of any Aboriginal Cultural Heritage, FMG must comply with thoserecommendations; and

(2) it disagrees with any recommendations contained in the Cultural Heritage Report forthe management of any Aboriginal Cultural Heritage, then FMG and the FMG

Heritage Sub-Committee must for a minimum of 30 days negotiate in good faith witha view to agreeing substitute recommendations for the management of theAboriginal Cultural Heritage.

D7.3 Nothing in this clause D7, in any way restricts FMG from lodging a Section 18 Application.

D8 SECTION 18 APPLICATION

D8.1 FMG must not make a Section 18 Application unless:

(1) the Section 18 Application is in accordance with a recommendation contained in a

Cultural Heritage Report; or

(2) FMG has first genuinely endeavoured to reach agreement in writing with the FMG

Heritage Sub-Committee about the avoidance, minimisation or mitigation ofdisturbance or damage (including salvage or recording) to any Aboriginal CulturalHeritage.

D8.2 ln this clause , "genuinely endeovoured" means FMG must:

(1) have regard to the Aboriginal Cultural Heritage Principles;

(2) notify the FMG Heritage Sub-Committee of the likelihood of a Section 1-8 Application

as soon as FMG forms a view that such an application is likely;

(3) notify the FMG Heritage Sub-Committee at least 35 days prior to making any Section

18 Application;

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(4) if requested by the FMG Heritage Sub-Committee during the 35 day period referred

to in clause D8.2(3), agree to attend, participate in and pay the reasonable costs of a:

(a) meeting proposed by the FMG Heritage Sub-Committee between the FMG

Heritage Sub-Committee (and any other Yindjibarndi People reasonably

required by the FMG Heritage Sub-Committee) and FMG to discuss the

avoidance, minimisation or mitigation of disturbance or damage (including

recording and salvage) to the Aboriginal Cultural Heritage; and

(b) further meeting proposed by the FMG Heritage Sub-Committee between the

FMG Heritage Sub-Committee (and other Yindjibarndi People reasonably

required by the FMG Heritage Sub-Committee) and FMG, at the site of theAboriginal Cultural Heritage if requested by the FMG Heritage Sub-

Committee, to discuss the avoidance, minimisation or mitigation ofdisturbance or damage (including recording and salvage)to the Aboriginal

Cultural Heritage; and

(5) provide a copy of the Section 18 Application to the FMG Heritage Sub-Committeeprior to its lodgement with the DlA.

D8.3 FMG and the FMG Heritage Sub-Committee must in all discussions concerning the avoidance,

minimisation or mitigation of disturbance or damage (including salvage or recording) to any

Aboriginal Cultural Heritage act in good faith and have regard to the Cultural Heritage

Principles.

D8.4 lf FMG gives notice of its intention to make a Section 18 Application in respect of any

Aboriginal Cultural Heritage which only comprises an archaeological Aboriginal site of low ormedium significance, and further agrees:

(1 ) to digitally record that Aboriginal site by photography and/or video and/or otherappropriate means; and

(2) to salvage that Aboriginal site in a culturally appropriate manner; and

(3) at the election of the Yindjibarndi People, to reinstate that Aboriginal site in a

culturally appropriate manner after FMG has finished with the relevant area,

then the Yindjibarndi People will not object to the Section 18 Application.

D8.5 The assessment that a site is of low or medium significance in accordance with clause 8.4

above will only be made in accordance with an assessment made in a Cultural Heritage

Report.

DB.6 At least 28 days prior to the ACMC considering any Section 18 Application, the Yindjibarndi

People must deliver to FMG and the ACMC sufficient electronic copies in pdf format of a

Cultural Heritage Report requested in accordance with clause D6 above, which describes the

significance of each Aboriginal site the subject of the Section 18 Application in sufficient

detail to meet the anticipated reasonable requirements of the ACMC. Following the

determination of the Section 18 Application (including any appeals or administrative reviews

arising from the Section 18 Application determination process) FMG must return to the

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Yindjibarndi People all copies of all reports provided by the Yindjibarndi People to FMG inaccordance with this clause.

D8.7 lf FMG and the FMG Heritage Sub-Committee reach agreement as to the avoidance,minimisation or mitigation of disturbance or damage (including salvage or recording) to anyAboriginal Cultural Heritage, then if requested by FMG, the FMG Heritage Sub-Committeemust advise the ACMC and the Minister responsible for the Aboriginal Heritoge Act 1-972

(WA)that such agreement has been reached.

D9 CONFIDENTIALITY

No Entitlement to Culturally Sensitive lnformation

D9.1 Nothing in this Agreement entitles FMG to culturally sensitive information about any site ofsignificance to the Yindjibarndi People.

D9.2 The FMG Heritage Sub-Committee must ensure that all Cultural Heritage Reports aresufficiently comprehensive to enable FMG to plan and manage its operations.

D1O CONDUCT OF CULTURAL HERITAGE SURVEY

D10.1 Prior to the commencement of any Cultural Heritage Survey, FMG must fully explain anyrelevant safety procedures and policies of FMG and must provide at FMG's cost anynecessary safety equipment required to comply with those safety procedures and policies.

D10.2 During any Cultural Heritage Survey, the Yindjibarndi People must comply with all of thesafety procedures and policies of FMG.

lntellectual Property and Confidential lnformation

D10.3 All information about Aboriginal Cultural Heritage contained in any Cultural Heritage Reportor Preliminary Cultural Heritage Report remains the intellectual property of the YindjibarndiPeople.

D10.4 Subject to clause D10.5, FMG may only divulge Confidential tnformation:

(1) with the prior written consent of the Yindjibarndi people;

(2) to a party's solicitors, employees or contractors, provided that a person to whomConfidential lnformation is divulged agrees to be bound by this clause;

(3) to any bona fide potential or actual assignee of any interest of FMG provided thatperson agrees to be bound by this clause; and

(4) as required by law.

D10.5 FMG may use Cultural Heritage Reports:

(1) for the purpose of protecting Aboriginal Cultural Heritage in the planning and

development of its mining operations;

(2) to prepare and pursue a Section 18 Application; and

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(3) for internal reporting to its Related Body Corporate, provided that the Related Body

Corporate agrees to be bound by this clause; and

(4) to compile a separate report for submission to any relevant Authority as part of a

NOI and/or Environmental lmpact Assessment in connection with Project

Operations.

D10.6 The Yindjibarndi People may allow any other person or body to use a Cultural Heritage

Report or Preliminary Cultural Heritage Report for any purpose provided such other person

reimburses FMG half of any costs incurred by FMG in connection with the preparation ofsuch report which have not previously been reimbursed.

D10.7 For the avoidance of doubt, FMG may not use any Confidential lnformation to oppose theNative Title Claim.

Legal Professional Privilege

D10.8 The Parties acknowledge that in the course of the conduct of a Cultural Heritage Survey, theYindjibarndi People may obtain or cause to be obtained (at their own cost) information in

relation to the Native Title Claim and that such information is separate from the Cultural

Heritage Survey, is confidential to the Yindjibarndi People and may be the subject of a claimof legal professional privilege.

Prior Cultural Heritage Surveys and Report

D10.9 The provisions of clauses D1-0.3 to D10.8 inclusive are deemed to apply to any cultural

heritage survey and any survey reports conducted or produced by or on behalf of theYindjibarndi People in relation to the Project prior to the date of this Agreement.

lnsurance

D10.10 The FMG Working Group must ensure that the following insurances are effected and

maintained by a Cultural Heritage Survey Body:

comprehensive general lia bility insurance/public liability insurance covering all

liabilities in respect of any injury to, or death of, any person or any loss, damage ordestruction to any property however caused. Such insurance must provide cover in

respect of each and every claim to an amount of not less than 520,000,000;

workers' compensation insurance covering all liabilities, whether arising under

statute or common law in relation to the death of, injury to any person engaged as

an employee (including a person who is a worker for the purposes of the Workers'

Compensotion ond Rehobilitotion Act L98L (WA)) of the Cultural Heritage Survey

Body for the purposes of this Agreement (including Aboriginal Consultants who are

engaged as employees). Such insurance must provide cover in respect of each and

every claim to an amount not less than $50,000,000;

motor vehicle / third party insurance covering all liabilities in respect of any injury to,

or death of, any person or any loss, damage or destruction to any property arising

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(1)

(2)

(3)


from the use of such motor vehicles. Such insurance must provide cover in respect ofeach and every claim to an amount not less than 520,000,000; and

(4) professional indemnity insurance in respect of any negligent acts, errors or omissions

in the advice or services provided by the Cultural Heritage Survey Body, such

insurance is to be for a minimum value of 515,000,000 for each and every claim.

D10.1 1 FMG must effect and maintain (at its own expense) throughout the term of this Agreement,

the following insurances:

(1) comprehensive general liability insurance/public liability insurance covering all

liabilities in respect of any injury to, or death of, any person or any loss, damage ordestruction to any property however caused. Such insurance must provide cover in

respect of each and every claim to an amount of not less than 520,000,000;

(2) workers' compensation insurance covering all liabilities, whether arising under

statute or common law in relation to the death of, injury to any person engaged as

an employee (including a person who is a worker for the purposes of the Workers'

Compensotion ond Rehabilitotion Act 198L (WA)) of FMG for the purposes of thisAgreement. Such insurance must provide cover in respect of each and every claim toan amount not less than 550,000,000;

(3) motor vehicle / third party insurance covering all liabilities in respect of any injury to,or death of, any person or any loss, damage or destruction to any property arising

from the use of such motor vehicles. Such insurance must provide cover in respect ofeach and every claim to an amount not less than 520,000,000.

Dl1 FUNDING OF CULTURAL HERITAGE SURVEY

D11.1 FMG must reimburse the FMG Heritage Sub-Committee for the reasonable costs ofconducting any Cultural Heritage Survey within 28 days following receipt of an itemised

invoice for the costs of the Cultural Heritage Survey.

D11.2 FMG willprovide allaccommodation and meals duringthe conduct of the survey.

ADMINISTRATION

Administration Fee (percentage of totalexpenditure)

LSo/o + GST

HERITAGE

Ethnographic Assessment

Heritage Officer or Anthropologist 5900 per day up to a maximum

of4 days per survey as required

+ GST

DIA register of Aboriginal Sites Search S600 per survey + GST

Archaeological Assessment (if necessary

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and agreed

Archaeologist (Archaeological Team)

external contractors fieldwork & reporting

External contract fees + GST

Aboriginal Consultants

Aboriginal Consultants (usually 4 people,

estimated maximum 8)

Ssoo per person per day + GST

Field and Travel Expenses

All Field and Travel expenses to be covered

by FMG


PART E - CROSS CULTURAT AWARENESS

El CROSS CULTURAL AWARENESS PROGRAM

E1.1 FMG must develop and implement for its employees engaged in the Project:

(1) an Aboriginal cultural induction program; and

(2) an on-going education program.

E1 .2 FMG must use reasonable endeavours to ensure that its contractors and agents engaged in

the Project within the Agreement Area develop and implement an:

(1) Aboriginalculturalinductionprogram;and

(2) on-going education program,

E1.3 ln developing the Aboriginal cultural induction program and on-going education program

referred to in clause E1.1, FMG must consult with the FMG Working Group.

E1.4 FMG must employ Local Aboriginal People and others to assist in the design and conduct ofthe Aboriginal cultural induction program and on-going education program referred to inclause EL.l-.

E2 PROMOTION OF LOCAL ABORIGINAL PEOPLE

E2.1 FMG in association with the representatives of the Yindjibarndi People must use its best

endeavours to promote among non-Aboriginal residents and visitors to the region aknowledge, understanding and respect for the traditions, languages and culture of the Local

Aboriginal People.

E3 CONDITIONS OF EMPLOYMENT OF ALL FMG EMPLOYEES

E3.1 FMG must use its best endeavours to ensure that the following conditions of employmentare agreed to by all employees of FMG and all Permanent On-Site Contractors in relation tothe Project:

(1) a requirement to participate in an induction program in relation to local Aboriginal

traditions and culture;

(2) a prohibition against entering onto, damaging or interfering with any Aboriginal

Cultural Heritage;

(3) a prohibition against disturbing or removing any Aboriginal Cultural Heritage; and

(4) a prohibition against behaving in a manner deliberately disrespectful to Aboriginal

culture or tradition or in a manner offensive to Aboriginal people.

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FMG YINDJIBARNDI 4

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Transcript of FMG YINDJIBARNDI 4