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FMG YINDJIBARNDI AGREEMENT PART 4 SCAN
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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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FMG - Yindjibarndi Land Access Agreement
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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FMG - Yindjibarndi Land Access Agreement
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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FMG - Yindjibarndi Land Access Agreement
(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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FMG - Yindjibarndi Land Access Agreement
(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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FMG - Yindjibarndi Land Access Agreement
(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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FMG - Yindjibarndi Land Access Agreement
(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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FMG - Yindjibarndi Land Access Agreement
(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:
40
(2)
(3)
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FMG - Yindjibarndi Land Access Agreement
(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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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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FMG - Yindjibarndi Land Access Agreement
(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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FMG - Yindjibarndi Land Access Agreement
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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FMG - Yindjibarndi Land Access Agreement
(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)
FMG - Yindjibarndi Land Access Agreement
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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FMG - Yindjibarndi Land Access Agreement
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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
FMG - Yindjibarndi Land Access Agreement
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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