Native Title, Land Access & Cultural Heritage Conference Perth 14 February 2013 Understanding How Compensation Payments are Structured: Setting the Scene Land Equity Legal

Understanding when to discuss and negotiate compensation arrangements 1. What does “Compensation” mean?: “making amends”, to “counter balance” to “make up for” (Australian Concise Oxford Dictionary) 2. How do you compensate for impacts on native title rights and interests?:  A community impact, not an individual impact;  what does loss of access to Country and permanent changes to Country mean?; 3. When does compensation negotiation arise? 4. What other payments are required in negotiations and agreements?

When is Native Title compensation payable? The legal requirements in WA (1) The Mining Act 1978 (WA) (and Petroleum legislation: s17; 24A): Section 125A sets out that miners are liable for mining compensation to native title holders  Section 123 sets out the heads of compensation and that the Warden’s Court can determine the compensation by agreement of the parties or if referred by the owner or occupier;  The heads of compensation exclude a “royalty” based on value of any minerals (but not production);  Deprivation, damage, severance from land;  Loss of a right, social disruption, reasonable expenses

When is Native Title compensation payable? The legal requirements in WA (2) The Native Title Act 1993: section 33 and section 24MD (6A) and (6B): Future Act Negotiations and Consultation for Mining and Infrastructure Tenements:  The scope of negotiations is unlimited;  the negotiations can include payments worked out by reference to the amount of profits made, any income derived or any things that get produced (note the inconsistency with section 123 Mining Act);  Same right as freeholders and objection and consultation right for infrastructure titles: consultation must occur about ways of minimising impact on native title rights and interests, access or the way mining is done

Handling the Money: Issues, Viewpoints and Options   

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Where does the money go and what is it used for?; What money is needed? Is it all for “compensation”?; Can things other than money be given? The role of governments? Viewpoints: the balance between being assured the money will be used for compensation purposes versus micro management and oversight, the costs of compliance and reporting and existing regulatory requirements; Options: Use of Trusts ; Excluding liability in contracts and sole compensation

Setting up Indigenous Communities in Future Generations by implementing an effective Indigenous economic development strategy

The role of the Resources Sector? The role of Government? What are the wishes of Indigenous Communities?; What are the wishes of native title claimants and holders? Must they consider the future generations? The role of “native title” as a means of self determination?; Existing business structures, future structures and what is required? 