Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland
[2013] NNTTA 52
•7 May 2013
NATIONAL NATIVE TITLE TRIBUNAL
Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 52 (7 May 2013)
Application No: QF2012/0013
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Adani Mining Pty Ltd (grantee party)
- and -
Jessie Diver, Patrick Fisher, Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone and Les Tilley on behalf of the Wangan and Jagalingou People
(native title party)
- and -
The State of Queensland (Government party)
FUTURE ACT DETERMINATION
Tribunal: President Raelene Webb QC
Place: Perth
Date of decision: 7 May 2013
Hearing dates: 15 November 2012 and 12 April 2013
Representatives:
Grantee party: Mark Geritz and Tosin Aro, Clayton Utz
Native title party: Nadia Rosenman, Chalk & Fitzgerald
Government party: Bernadette Wrafter and Leilehua Helu, Crown Law
Catchwords: Native title – future act – application for determination for the grant of mining lease – no agreement with native title party –contentions not supported by evidence - whether the future act can be done – evidence – key criteria
Legislation: Aboriginal Cultural Heritage Act 2003 (Qld), s 28 and Part 7
Environmental Protection Act 1994 (Qld), ss 233, 234, 430 and 431
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 67
Mineral Resources Act 1989 (Qld), ss 234, 235, 236, 276, 298 and Part 7
Mineral Resources Regulation 2003 (Qld), s 18
Native Title Act 1993 (Cth), ss 29, 30, 30A, 31, 35, 36, 38, 39, 41, 52, 52A, 109, 123 and 151
Nature Conservation Act 1992 (Qld)
State Development and Public Works Organisation Act 1971 (Qld), s 26
Cases:Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 30
Australian Manganese Pty Ltd v Western Australia and Others (2008) 218 FLR 387
Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2010] NNTTA 101
Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) & Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9
Bissett and Others v Mineral Deposits (Operations) Pty Ltd and Another (2001) 166 FLR 46
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/ State of Queensland, [2006] NNTTA 3
Carpentaria Gold Pty Ltd/Birri People/Queensland, [2010] NNTTA 148
Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21
Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited, [2010] NNTTA 30
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Others (Birri People)/State of Queensland [2012] NNTTA 31
Evans v Western Australiaand Others (1997) 77 FCR 193; [1997] FCA 741
Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1
Summons v Victoria and Others (2003) 176 FLR 1
Walley v Western Australia and Others (1999) 87 FCR 565
Western Australia v Thomas and Others (1996) 133 FLR 124
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49; (2009) 2 ARLR 214
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 101
REASONS FOR DECISION
Background
The State of Queensland (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the NTA’) of its intention to grant Mining Lease 70441 (‘the proposed ML’) to Adani Mining Pty Ltd (‘the grantee party’) under the Mineral Resources Act 1989 (Qld) (‘the MRA’). The notice appeared in the Koori Mail and the Central Queensland News on 2 November 2011, with the notification day of 23 November 2011 specified as required by s 29(5) of the Act.
At both the date notice of a proposed future act was given and on 23 March 2012, being four months from the notification day, the only native title determination application that appeared on the Register of Native Title Claims and covered all or part of the area of the proposed ML was that of Jessie Diver, Patrick Fisher, Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone and Les Tilley on behalf of the Wangan and Jagalingou People (‘the native title party’). The Wangan and Jagalingou People native title determination application (QUD85/2004; QC2004/006) was entered on the Register of Native Title Claims on 5 July 2004. Accordingly, the native title party falls within s 30(1)(a) of the Act and by s 30A has the status of a ‘negotiation party’ under Part 2 Division 3 Subdivision P of the Act. There is no other native title party to these proceedings.
The proposed ML covers 260.05 square kilometres (approximately 26,015 hectares), located approximately 160km north-west of Clermont and 200km South East of Pentland in the locality of Isaac Regional Council and Charters Towers Regional Council in the State of Queensland. The grant of the ML would authorise the holder to mine and carry out associated activities for a term not exceeding fifty (50) years with the possibility of renewals not exceeding fifty (50) years. The area of the proposed ML that covers the native title party’s claim area is 258.43 square kilometres. That is, the native title party’s claim area overlaps 99.38% of the area of the proposed ML.
On 7 November 2012 the grantee party applied under s 35 of the Act for a future act determination under s 38. More than six months had passed since the notification day and the negotiating parties had not reached agreement of the kind mentioned in s 31(1)(b) of the Act. On 9 November 2012, then President Neate was appointed as the presiding Member for the inquiry.
Good faith negotiations – power to conduct the inquiry
Section 31(1)(b) of the Act requires parties to negotiate in good faith with a view to obtaining the agreement of native title parties to the doing of the future act, whether or not subject to conditions. If any negotiating party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination on the application: see s 36(2) of the Act.
The native title party challenged the Tribunal’s power to determine the application made under s 35 of the Act contending that the grantee party had not negotiated in good faith as required by s 31(1)(b) of the Act.
After consideration of the material provided by the parties, President Neate was not satisfied that the grantee party did not negotiate in good faith as required by s 31(1)(b) of the Act, concluding therefore that the Tribunal has power to exercise its jurisdiction to conduct the inquiry into the future act determination application made by the grantee party on 7 November 2012: see Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 30.
Following the good faith decision, and after commencing as President of the Tribunal, on 4 April 2013 I was appointed as the Member to conduct the inquiry into the future act determination application pursuant to s 123(1)(c) of the Act.
The inquiry
Directions for the inquiry
Directions in relation to the substantive inquiry were made by President Neate on 16 November 2012. Those Directions required the following:
(a) by 8 February 2013 the grantee party and the Government party to provide to the Tribunal, to the native title party and to each other:
(i)a statement of contentions addressing the criteria relevant to them in s 39 of the Act;
(ii)a list of documents or evidence intended to be produced, with copies to be made available to the Tribunal and, where practicable, to the other parties;
(iii)a statement of the evidence to be given by any witness for the Government or grantee party, verified where possible by affidavit, and the details of where the party proposes that evidence be heard if the matter is not to be heard on the papers.
(b)by 8 March 2013 the native title party to provide to the Tribunal, the Government party and the grantee party:
(i)a statement of the effect (if any) of the grant of the proposed ML upon the following matters (referred to in s 39(1)(a) of the Act):
a.the enjoyment by the native title party of their registered native title rights and interests;
b.the way of life, culture and traditions of the native title party;
c.the development of the social, cultural and economic structures of the native title party;
d.the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted on the land in accordance with their traditions; and
e.any area or site on the land or waters concerned of particular significance to the native title party in accordance with their traditions;
(ii)a statement of the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the native title party that will be affected (s 39(1)(b));
(iii)a statement of whether the native title party contends that any of the matters referred to in ss 39(1)(c) to (f) of the Act are relevant to the inquiry and, if so, an outline of the native title party’s contentions in relation to each of those matters;
(iv)contentions on whether the Tribunal should impose a condition for an amount to be paid in trust on account of a future determination of compensation;
(v)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that evidence be heard if the matter is not heard on the papers;
(vi)a list of the documentary evidence intended to be produced in relation to the matters referred to in (i) to (iv) above with copies to be made available to the Tribunal and, where practicable, to other parties; and
(vii)where there is any issue in relation to confidentiality of documents or evidence and whether evidence will need to be given in restricted circumstances, a statement of the nature of the documents and evidence and proposed arrangements for the hearing of the evidence.
The Directions also covered inspection of documents provided to the Tribunal and required parties to confer with a view to agreeing issues, facts and documents to be relied upon and procedures for the conduct of the inquiry, on or before 15 March 2013, with a listing hearing to be held on 19 March for the purpose of reports on the matters the subject of the conference. A hearing was to be held during the week beginning 25 March 2013.
In accordance with the Directions of 16 November 2012:
(a) on 8 February 2013 the Government party provided a statement of contentions dated 8 January 2013, together with the following documents:
(i)copy of the s 29 notice for the proposed ML;
(ii)the application for the ML made by the grantee party;
(iii)maps showing the Wangan and Jagalingou Claim and the mining lease application area;
(iv)extract from the Register of Native Title Claims;
(v)Public Enquiry Report for EPC 1690, together with survey plan showing EPC 1690;
(vi)title search for, together with survey plan showing, Lot 1 on AY35;
(vii)title search for, together with survey plan showing, Lot 1 on SP164918;
(viii)title search for, together with survey plan showing, Lot 633 on SP228220;
(ix)title search for, together with survey plan showing, Lot 662 on PH1419;
(x)list of tenure in the general area of the proposed ML, together with Public Reports for that tenure;
(xi)list of ‘current’ tenure adjoining the proposed ML (presumably at or about the date of the statement of contentions), together with Public Reports for that tenure and a glossary of terms;
(xii)results of a Cultural Heritage Register and Database search dated 29 January 2013;
(xiii)Code of Environmental Compliance for Exploration and Mineral Development Projects;
(xiv)Duty of Care Guidelines gazetted under s 28 of the Aboriginal Cultural Heritage Act 2003 (Qld) on 16 April 2004;
(xv)Maps of background leasehold tenures.
(b) on 8 February 2013 the grantee party provided its statement of contentions, together with the following documents:
(i)results of a Cultural Heritage Database and Register search dated 10 January 2013;
(ii)land title searches current at 10 January 2013;
(iii)Public Reports for mining tenure at or about 7-8 February 2013;
(iv)map of real property underlying and adjacent to the proposed ML;
(v)map of mining tenements underlying and adjacent to the proposed ML;
(vi)letter dated 28 October 2011 from the Department of Environment and Resource Management to the grantee party advising of the approval of the Carmichael Cultural Heritage Management Plan under Part 7 of the Aboriginal Cultural Heritage Act 2003;
(vii)Environmental Impact Statement, Executive Summary for the Carmichael Coal Mine and Rail Project (‘the Carmichael Project’).
(c) on 8 March 2013 the native title party provided its statement of contentions, together with the following listed documents:
(i)Archaeo Cultural Heritage Services, Cultural Heritage Investigation of Drill Pad and Access Tracks; Carmichael Coal Mine Project (2011);
(ii)Archaeo Cultural Heritage Services, Cultural Heritage Survey Carmichael Coal Project 3D Siesmic Survey Area Galilee Basin, Central Queensland (2012);
(iii)media clippings;
(iv)Adani Mining, Environmental Impact Statement; Carmichael Coal Mine and Rail Project (2012) by reference to >
By letter dated 18 March 2013, copied to all parties, the grantee party responded to the native title party’s statement of contentions, submitting inter alia that there were no documents it needed to inspect, nor any issues with respect to which conferral by the parties would assist the Tribunal. The grantee party was of the view that a listing hearing was not required and instead, the substantive case should be heard on the papers based upon the material already provided to the Tribunal. No other party submitted to the contrary. No listing hearing was held on 19 March 2013.
Having been appointed to conduct the substantive inquiry on 4 April 2013, I convened a Directions Hearing on 12 April 2013 to ascertain how the inquiry should progress from that point, including whether any party wished to make any further submissions or provide any further material, and whether the matter should be decided on the papers, as earlier requested by the grantee party, or whether any party requested an oral hearing.
The Government party confirmed its understanding that the matter would likely be decided on the material provided to the Tribunal and requested the opportunity to file a response. The native title party did not seek an oral hearing.
Directions were made on 12 April 2013 allowing the Government party to provide its statement in reply to the substantive contentions of either or both the grantee party and the native title party by 19 April 2013, with a further 7 days for the grantee party and the native title party to respond to the Government party’s reply, if required.
Section 151(b) of the Act provides that the Tribunal may make a future act determination by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal.
Having had regard to the material already provided, and in the absence of any party requesting an oral hearing, I was satisfied that it was appropriate to proceed to make a determination without holding a hearing and directed that the Tribunal would proceed to determine the substantive matter on the papers at the conclusion of the opportunity to provide further material as directed.
On 19 April 2013, the Government party provided its statement of contentions in reply.
By email dated 22 April 2013, the grantee party confirmed that it did not wish to reply to the Government party’s further contentions, noting in respect of the contentions in reply that “the State's position is similar to the position of the Grantee Party as outlined in our letter of 18 March 2013”.
On 26 April 2013, the native title party advised by email that it “will make no further submissions, and rely on [its] submissions and evidence already before the Tribunal”.
The Proposed Tenement Area
Mining tenements
Exploration Permit for Coal No 1690 (‘EPC 1690’), held by the grantee party, underlies the whole of the proposed ML. EPC 1690 was granted on 14 July 2010 and expires on 13 July 2015.
Annexure 11 to the Government Party’s statement of contentions shows the following mining tenements adjoining the proposed ML:
(a)Exploration Permits for Coal Nos 1078, 1080, 1104 and 1105 (application);
(b)Mineral Development Licence No 485 (application);
(c)Mining Leases Nos 70487, 70489 and 70490 (all in application).
In addition, annexure C to the grantee party’s statement of contentions shows an Authority to Prospect No 1044, said to overlap the whole of the proposed ML, and Authority to Prospect No 744, said to share a common boundary with the land.
Underlying tenure
The Government party has provided information about the underlying tenure of the proposed ML. It comprises:
(d)Lot 1 on Crown Plan AY35 which is Grazing Homestead Perpetual Lease 12/2558 not granted for an expressed particular purpose;
(e)Lot 1 on SP164918 which is Grazing Homestead Perpetual Lease 0/220128 granted for agricultural purposes;
(f)Lot 633 on SP228220 which is a Pastoral Holding for a term of 53 years expiring on 30 June 2018 and not granted for an expressed particular purpose;
(g)Lot 662 on Crown Plan PH1491 which is a Pastoral Holding for a term of 40 years and 6 months expiring on 31 December 2016 and not granted for an expressed particular purpose.
The native title party agrees that Lot 1 on Crown Plan AY35 lies outside its claim area.
All parties refer to four roads in the area. Those roads are Moray Road, Boundary Road, and two unnamed roads.
Other interests referred to by both the grantee party and the native title party are the Labona Airstrip and a nature refuge declared under the Nature Conservation Act 1992 (Qld) on Lot 1 on SP164918.
The grantee party in its statement of contentions (para 3.12) states that the majority of the proposed ML consists of cleared and uncleared grazing land, which has been used over a prolonged period for beef cattle grazing.
Proposed mining activity
The grantee party regards the proposed ML as a key component in the Carmichael Project located in Central Queensland. The grantee party’s contentions outline that the Carmichael Project will include development of greenfield open-cut and underground coal mines, together expected to produce 60 million tonnes per annum of product coal at peak production, as well as rail facilities connecting to export terminals at Abbot Point and/or Hay Point. The Project has an expected operating life of approximately 90 years.
The Carmichael Project was declared as a ‘significant project’ under s 26 of the State Development and Public Works Organisation Act 1971 (Qld) on 26 November 2010. On 9 January 2011 it was also declared a ‘controlled action’ as defined in s 67 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), requiring assessment and approval under that Act. In those circumstances, before the Project can proceed necessary approvals under the above Acts must be obtained. An Environmental Impact Statement: Carmichael Coal Mine and Rail Project (2012) (‘the EIS’) has been prepared to meet the impact assessment requirements under both Commonwealth and Queensland legislation. The EIS can be accessed at The grantee party relies upon the EIS in respect of the economic or other significance of the grant of the proposed ML (s 39(1)(c)) and the public interest (s 39(1)(e)). The native title party also relies upon the EIS, particularly as to the effect of the proposed ML by reference to the matters set out in s 39(1)(a) of the Act.
The scale of the Carmichael Project is illustrated by the Project Description in the Environmental Impact Statement, Executive Summary. As summarised by the native title party in its statement of contentions:
The Carmichael Project will include an open cut mine, and underground mine and related infrastructure (Coal Handling Preparation Plant, Major underground face and mobile equipment, electrical infrastructure, North and Central underground mine facility, underground coal stockpile areas, reclaim stations, open cut stockpile areas, North and Central open cut mine facilities, overland conveyors, airfield and accommodation). There will also be a private rail line connecting the Mine to existing rail systems (approximately 190 km of rail line.
The proposed ML, covering approximately 26,015 hectares, is part of the Carmichael Project which will cover a total area of approximately 44,700 hectares.
The capital investment for the life of the mine is expected to total $21.5 billion. The economic assessment of the specific impacts of the operational and construction phases of the project on the Gross Regional Product, and household income and employment, for the Mackay region and Queensland is described below in relation to the s 39 criteria.
Aboriginal communities and Aboriginal cultural heritage
The Government party contended (para 3.5) that it was not aware of any Aboriginal community on, or within the vicinity of, the proposed ML. There is no material from either the grantee party or the native title party which would suggest that this is incorrect.
The Government party and the grantee party both undertook searches of the Cultural Heritage Database and Register for Aboriginal cultural heritage places recorded within the area of the proposed ML. The searches did not identify any Aboriginal cultural sites within the area, however the Government party’s statement of contentions (para 3.6) states:
It is not, however, possible to conclusively guarantee that there are no cultural heritage sites within the area.
The grantee party and the native title party have concluded an approved Cultural Heritage Management Plan (CHMP) in accordance with the requirements of Part 7 of the Aboriginal Cultural Heritage Act 2003. The whole of the proposed ML is within the CHMP area.
The grantee party and the native title party have conducted various Aboriginal cultural heritage surveys over the area of the proposed ML. The EIS (Project Wide, Part 5, Section 5.1 at 5-6) records that “the 2011 and 2012 cultural heritage fieldwork program resulted in the identification a number of culturally significant areas and objects located in varying densities across the Project Area, both as isolated artefact finds and within the context of larger site complexes”.
However, the native title party in its statement of contentions (para 23) acknowledges that at this stage there is no evidence of sites of “particular significance” (as explained by Carr J in Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 1 at 23-35) on the proposed ML.
The relevant Mining and Environmental law
The Queensland legislative framework concerning mining activities is considered in some detail in Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Others (Birri People)/State of Queensland [2012] NNTTA 31 (Drake) at [50] to [59]. Those passages, which I gratefully adopt, are here extracted:
[50] The relevant law governing the grant of mining leases in Queensland is prescribed by Part 7 of the Mineral Resources Act 1989. Section 234 of that Act provides that the Governor-in-Council may grant to an eligible person(s) a mining lease for the following purposes:
(a) to mine the mineral(s) specified in the lease and for all purposes necessary to effectually carry on that mining; and
(b) such purposes, other than mining, specified in the lease and that are associated with, arising from or promoting the activity of mining.
Importantly, the holder of a mining lease can make application for approval to mine minerals not specified in the mining lease – s 298.
[51] The general entitlements of the holder of a mining lease are prescribed by s 235. Basically the holder of the lease (as well as employees, agents etc) is permitted to enter and occupy the tenement areas for any purpose authorised by the lease. Further, sand, gravel and rock on the lease area may be utilised by the tenement holder subject to the payment of any prescribed royalty – s 236.
[52] The general conditions imposed on mining leases are set out in s 276. Every mining lease is subject to the following standard conditions:
(a) the land is only to be used for the purpose specified in the lease;
(b) the holder must carry out improvement restoration for the mining lease;
(c) prior to expiration, all buildings, structures, equipment and plant on the tenement area must be removed;
(d) no obstruction or interference with any third party right of access to the tenement area;
(e) no assignment, sublease or mortgage without Ministerial consent;
(f) the lessee to furnish any prescribed reports, returns, documents etc;
(g) provide materials obtained under the mining operations to the Minister in the manner and quantities as the Minister reasonably requires;
(h) where the tenement area is a reserve, the holder shall comply with the terms and conditions upon which the consent of the owner or Governor-in-Council to the grant of the lease was given;
(i) during the term of the lease maintain all survey pegs and other markings;
(j) payment of compensation, rental, royalties, local authority rates and deposits; and
(k) compliance with such further conditions as may be prescribed or determined.
Section 18 of the Mineral Resources Regulation 2003 prescribes further conditions for the holder of a mineral lease, namely:
(a) using, where practicable, only existing roads or tracks on the relevant land;
(b) taking reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the relevant land;
(c) not allowing an animal on the land, unless the land is fenced in a way to prevent the animal leaving the land or restraining the animal; and
(d) not to discharge a firearm on the land unless the holder has the consent of the owner of the land and the consent is lodged with the mining registrar.
[53] In Queensland the environmental regulation of mining activities is effected pursuant to the provisions of the Environmental Protection Act 1994 (Qld). The holder of a mining tenement must also hold an environmental authority for mining activities on the proposed tenement. Consequently a person or entity wishing to engage in mining activity in Queensland must not only make the relevant application under the Mineral Resources Act 1989 but also apply for an environmental authority under the Environmental Protection Act 1989.
[54] One of the requirements of an environmental authority is that the grantee party must comply with each of the relevant standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects (“the Code”). The Code is contained in Annexure 14 to the government party’s Statement of Contentions. The Code is a lengthy document which was issued in January 2001. Chapter 3 of the Code deals with standard environmental conditions imposed on proposed mining activities. These conditions are divided into General Conditions and Activity-based Conditions.
[55] Included in the matters dealt with in the General Conditions are: Plan of Operations, Financial Assistance, Land Disturbance, Air Quality, Noise Emissions, Erosion and Sediment Control, Topsoil and Overburden Management, Hazardous Contaminants, Nature Conservation and Other Level 2 Environmentally Relevant Activities.
[56] Included in the matters dealt with in the Activity-based Conditions are: Roads and Tracks, Campsite, Waste Management, Dams, Mine and Process Plant, Service Maintenance and Storage Areas, Monitoring, Reporting and Emergency Response Procedures and Rehabilitation.
[57] Condition 15 of the General Conditions, which deals with cultural heritage issues, provides: “The holder of an environmental authority must not carry out activities within 100m of an identified Historical, Archaeological or Ethnographic Site.”
[58] Failure to comply with the provisions of the Code is a breach of the environmental authority and the holder is liable to prosecution under s 430 of the Environmental Protection Act 1994. Breaches of s 430 have been treated by the Courts as serious offences, even though the breach was relatively technical. Moreover s 431 places a vicarious duty on the holder to ensure that persons acting under the authority comply with the conditions of the authority. Matters dealt with in the Code include requirements that the holder must:
(a) minimize disturbance to land and vegetation (Condition 3);
(b) not cause an unreasonable release of dust (Condition 4);
(c) not cause unreasonable noise (Condition 5);
(d) construct works to minimize the potential for water runoff to enter disturbed areas (Condition 6);
(e) construct works to prevent or minimize erosion and sedimentation of watercourses (Condition 7);
(f) ensure proper topsoil and overburden management (Condition 8);
(g) conduct mining activities to prevent release of hazardous contaminants (Condition 9);
(h) clean up spills of hazardous contaminants (Condition 10)
(i) segregate, and properly dispose of, acid producing waste rock (Conditions 11 and 12)
(j) prevent the spread of declared plants (Condition 13);
(k) carry out activities within specified distances of environmentally sensitive areas (Condition 14);
(l) engage in environmentally relevant activities including chemical storage, incinerating waste and battery and tyre recycling – Condition 16;
(m) consult with the landowner prior to establishing any new roads and tracks (Condition 17) or campsites (Condition 19);
(n) minimize any disturbance to land, vegetation etc when constructing new roads or tracks ( Condition 18) or campsites (Condition 20);
(o) not release waste (Condition 21) or waste water (Condition 24) or contaminants, including fuel or oil (Condition 25) into any watercourse etc, and, in any event, not more than 50 tonne of general waste per year – Condition 22;
(p) operate, maintain and decommission all dams in accordance with the prescribed criteria – Condition 23;
(q) ensure that chemicals, fuel and oil storage facilities are designed and operated in accordance with the prescribed guidelines – Conditions 26 and 27;
(r) ensure the prescribed monitoring, reporting and emergency response procedures are complied with – Condition 28;
(s) comply with the prescribed rehabilitation provisions – Conditions 29, 30, 31, 32, 33, 34, 35 and 38 including care of any remaining mine infrastructure after mining has ceased – Condition 36; and
(t) when engaging in dimension stone mining, prevent or minimize the release of fines from the processing plant – Condition 47. This requirement is in addition to the various requirements in other Regulations, Policies and Procedures governing the use of explosives when engaging in dimension stone mining.
[59] In addition to all of the above Conditions, is the requirement in Condition 1 that the holder must submit a Plan of Operations for the mining lease. This Condition is a restatement of the specific statutory obligation imposed by s 233 of the Environmental Protection Act 1994. The required content for such Plans is set out in s 234. Basically the holder must prepare a plan showing where all activities are proposed to be carried out, an action program for complying with the conditions of the environmental authority and a rehabilitation program for the land proposed to be disturbed.
The Government party also referred to duty of care imposed on grantee parties by the Aboriginal Cultural Heritage Act 2003 and to the cultural heritage duty of care guidelines gazetted under that Act on 16 April 2004, identifying reasonable and practical measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. The Duty of Care guidelines were provided to the Tribunal. Reference has already been made at [36] above to the CHMP concluded between the grantee party and the native title party and approved under the Aboriginal Cultural Heritage Act 2003.
The material before the Tribunal in this matter, as in Drake, demonstrates that the Queensland legislative regime cumulatively provides a framework which ameliorates the likely or potential effect of the future act on the native title rights and interests of the native title party: see Drake at [62]; Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/ State of Queensland at [38].
Native title rights and interests
The registered native title rights and interests which are entered on the Register of Native Title Claims for the Wangan and Jagalingou People native title determination application (QUD85/2004; QC2004/006) are set out as follows:
2.Inherit and transmit the native title rights and interests;
4.Confer customary use and access rights on other Aboriginal people who seek to use and access the area covered by the application under the traditional laws and customs of the native title claim group;
5.Determine as between the native title claim group what are the particular native title rights and interests that are held by particular members of the native title claim group in relation to particular parts of the area covered by the application;
6.Uphold, regulate, monitor and enforce the customary laws of the native title claim group in relation to the use and access of the area covered by the application against other Aboriginal people;
11.Live on the area covered by the application;
12.Establish residences on the area covered by the application, subject to the rights and interests of other parties;
14.Establish and maintain seasonal camps on the area covered by the application;
20.Take natural resources from the area covered by the application;
23.Engage on [sic] subsistence activities on the land;
26.Hunt and fish in the area covered by the application.
....only in respect of areas covered by the application where exclusive possession could be sustained.
13.Establish outstations on the area covered by the application
The native title rights and interests claimed:
a)are pursuant to the traditional law and customs of the native title holder;
b)are not exclusive rights and interests of they relate to tidal waters, and;
c)do not include ownership of any minerals, petroleum or gas wholly owned by the Crown;
d)over any areas covered by the application that are subject to a Previous Non-Exclusive Possession Act (PNEPA), as defined by s 23F of the Native Title Act 1993 (Cth) do not confer possession, occupation, use and enjoyment of the area covered by the application to the exclusion of all others, except to the extent that the non-extinguishment principle as defined in s 238 of the Native Title Act 1993 (Cth) applies, including any areas to which section 47, 47A or 47B of the Native Title Act 1993 (Cth) applies;
e)that are subject to a validly granted PNEPA, as defined by s 23F of the Native Title Act 1993 (Cth), then the native title rights and interests claimed do not include any native title rights or interests which were extinguished by that PNEPA, except to the extent that section 47, 47A or 47B of the non-extinguishment principle as defined in s 238 of the Native Title Act 1993 (Cth) may apply;
f)do not include rights and interests that are subject to extinguishment by application of the common law.
The common law native title and its qualifications:
The native title in the land and waters covered by the application (‘the claim area’) are subject to the following qualifications:
a)the valid laws of the State of Queensland and the Commonwealth of Australia; and
b)any valid rights and interests conferred upon non-native title holders, or the subject of an agreement made under the Native Title Act 1993 (Cth) or by the principles of Aboriginal law and custom.
Legal Principles
Pursuant to s 38 of the Act, the Tribunal must make one of three types of determinations, namely a determination that the act must not be done, or that the act may be done, or that the act may be done subject to conditions. Section 38(2) specifically prohibits the Tribunal from imposing a profit-sharing condition. Whilst the Act does not specify what sort of conditions the Tribunal may impose, the s 39 criteria “provides an indication in broad terms of what Parliament considers might be the appropriate subject matter of conditions which the Tribunal might impose upon the doing of the act”: see Walley v Western Australia and Others (1999) 87 FCR 565 per Carr J at 576.
It is useful here to set out the terms of s 39 in full:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non-native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
In interpreting the s 39 criteria, the Act does not require greater weight to be given to some criteria than attributed to others. It is a discretionary exercise in assessing the broad factors of s 39 of the Act and it will depend on the evidence (see Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169 at [37]). In Western Australia v Thomas and Others (1996) 133 FLR 124 at 165-166 the full panel of the Tribunal said:
We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
Section 36(1) of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable. Section 109(3) of the Act confirms that the Tribunal is not bound by technicalities, legal forms or rules of evidence.
Although there is no burden of proof, evidential or otherwise, which falls on any of the parties in a future act inquiry, the Tribunal can only act on evidence: Western Australia v Thomas and Others (1996) 133 FLR 124 at 157-158.
A commonsense approach to the evidence is required, meaning that parties will produce their own evidence to support their contentions, particularly where the facts are peculiarly within their own knowledge: Western Australia v Thomasand Others (1996) 133 FLR 124 at 157; Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited [2010] NNTTA 30 at [13].
Subsections 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests
In considering the s 39 criteria, the Tribunal is required to accept the possibility that each of the registered native title rights and interests exist: Western Australia v Thomas and Others (1996) 133 FLR 124 at 167. It will assume the existence of those native title rights and interests as if they had been determined by the Federal Court: Drake at [68]. However, that does not require the Tribunal to assume that the native title rights and interests would be affected in a particular way, or at all.
Section 39(1)(a) requires the Tribunal to determine the effect of the proposed future act on the registered native title rights and interests. The question of whether a particular proposed act has an effect on the native title rights and interests of a native title party is a matter of fact to be determined on the evidence in each case and will depend upon the nature of the act and the native title rights and interests which are capable of being affected: Western Australia v Thomas and Others (1996) 133 FLR 124 at 167.
The inquiry by the Tribunal is not to be undertaken in the abstract. The balancing exercise can only be done where there is actual evidence before the Tribunal of the exercise of the registered native title rights and interests on the area of the proposed tenement. As a matter of common sense, it is the native title party who can provide evidence of the enjoyment and exercise of native title rights and interests.
In this matter, none of the documents provided by the native title party in the substantive inquiry (listed at [11] above) or provided to the Tribunal in the context of the inquiry as to good faith negotiations (relied upon by the native title party in its statement of contentions at para 39), provided any evidence of the exercise or enjoyment of the registered native title rights and interests.
In making an assessment under s 39(1)(a) of the Act the Tribunal is also required also to take into account existing non-native title rights and interests in the relevant area, as well as the existing use of the land by other persons: s 39(2).
The grantee party in its statement of contentions (at 3.14 to 3.16), provided before the native title party’s statement of contentions, addressed s 39(1)(a)(i) as follows:
[3.14] The Grantee Party is not aware of the extent to which, if at all, the Native Title Party’s registered native title rights and interests are enjoyed or exercised over the Subject Land, and therefore cannot state what would be the effect of the grant of ML 70441 on the enjoyment of those rights and interests.
[3.15] The Grantee Party is not aware of any Aboriginal community occupying the Subject Land.
[3.16]Consequently, the Grantee Party submits that, on current knowledge of the extent to which the Native Title Party’s registered native title rights and interests are enjoyed on the Subject Land, and having regard to:
a.the Queensland legislative framework concerning mining activities;
b.the existing non-native title interests in and uses of the Subject Land; and
c.the operation of the non-extinguishment principle on the grant of ML 70441, the grant of ML 70441 is unlikely to have any significant impact on the Native Title Party’s enjoyment (if any) of their registered native title rights and interests in the Subject Land.
As to the existing non-native title rights and interests in, and uses of the proposed ML (s 39(2)) the grantee party contended (at para 3.13 of its statement of contentions) that:
[3.13] The interests and uses ..., even without the grant of ML 70441, would restrict the ability of the Native Title Party to exercise and otherwise enjoy any native title rights and interests they might ultimately be determined to hold with respect to the Subject Land. As a result it is unlikely that the grant of ML 70441 itself would have a measurable additional impact on the enjoyment of the Native Title Party’s registered native title rights and interests.
The Government party, in its statement of contentions, also contended (para 6.1) that it was not aware of any information indicating that the grant of the proposed ML would be likely to affect the enjoyment by the native title party and the Wangan and Jagalingou People of their registered native title rights and interests. It contended that it was a matter for the native title party to address.
In any event, the Government party contended (para 6.2) that the grant of the proposed ML was not likely to affect the enjoyment of the registered native title rights and interests because of the following factors:
(a)the statutory restrictions under the Environmental Protection Act 1994 that will apply to the proposed ML and the activities taken pursuant to it;
(b)the operation of the Aboriginal Cultural Heritage Act 2003;
(c)the absence of any Aboriginal communities on, or in close proximity to, the proposed ML;
(d)the limited area of the proposed ML compared to the external boundaries of the Wangan and Jagalingou claim;
(e)the extent of previous exploration over the area of the proposed ML;
(f)the underlying tenure subject to interests held by third parties, particularly leasehold interests and road reserves, that would have affected either the existence or the enjoyment of the registered native title rights and interests;
(g)the activities of third parties conducted within the vicinity of the proposed ML which would interfere with the enjoyment of the registered native title rights and interests
As to the underlying tenure, the Government party submitted (para 6.3) that the Grazing Homestead Perpetual Leases referred to above [24] would have extinguished native title. Those tenures are in the southern portion of the proposed ML; only Grazing Homestead Perpetual Lease 0/220128 falls within the native title party claim area. The balance of the proposed ML area is subject to pastoral landholdings which, it is contended, would have affected either the existence or the enjoyment of the native title rights and interests.
The native title party’s contentions and documents do not refer to, or include, any evidence about the exercise and enjoyment of the registered native title rights and interests. Rather, in addressing the criteria, the native title party has made a number of bald assertions, not supported by any evidence, which effectively requires the Tribunal to assume the effect of the proposed ML on the registered native title rights and interests. For example, in relation to s 39(1)(a), the native title party says (at para 14) that “the use of the Future Act area for the Carmichael Project will necessarily limit the access of the Native Title Party to the Future Act area to exercise their native title rights and interests..”.
The native title party’s contention in respect of s 39(2) is to similar effect. Para 13 states:
The construction of an open cut mining pit and associated infrastructure will have a much greater impact that [sic] the existing exploration and pastoral interests in the future act area.
Mere assertion of an impact on native title rights and interests, in the absence of any evidence about their exercise and enjoyment, is not enough for the Tribunal to make findings that the future act will have an effect on the enjoyment of the registered native title rights and interests. A proper evaluation of the s 39(1)(a)(i) criteria can only be undertaken if there is actual evidence of how the registered rights and interests are enjoyed: Drake at [77].
The Government party’s statement of contentions in reply (para 2.1) correctly refers to the absence of evidence to support the assertions made by the native title party in respect of the s 39(1)(a)(i) criteria.
I accept the submissions of the grantee party at para 3.16 of its statement of contentions (see [54] above) and those of the Government party at para 6.2 of its statement of contentions (see [57] above) to the effect that having regard to the matters set out, any enjoyment of native title rights and interests is unlikely to be significantly impacted by the grant of the proposed ML. In any event, there is no evidence before the Tribunal of the exercise or enjoyment of the registered native title rights and interests. In those circumstances, I am unable to conclude that the grant of the proposed ML will have any effect on the enjoyment of any of the registered native title rights and interests.
Section 39(1)(a)(ii) – way of life, culture and traditions of the native title party
For the same reasons as set out at [57] above, the Government party contends (at para 6.2 of the statement of contentions) that the grant of the proposed ML is not likely to affect the way of life of the native title party and the Wangan and Jagalingou People. It also refers in its statement of contentions in reply to the absence of evidence in respect of this criteria (at para 2.1).
The height of the contentions made by the native title party (at 19) is that:
It is also possible that the future act will impact on the Native Title Party’s culture and traditions through the disturbance and possible destruction of culturally significant sites.
There is no evidence before the Tribunal concerning the way of life, culture and traditions of the native title party. There is scant evidence of culturally significant sites on the area of the proposed ML, let alone of likely disturbance or possible destruction which could have any effect on the culture and traditions of the native title party.
Consequently I cannot conclude that there will be any effect on the way of life, culture and traditions of the native title party.
Section 39(1)(a)(iii) – development of social, cultural and economic structures
There is no information before the Tribunal of any social, cultural and economic structures which could be affected either positively or negatively.
The grantee party notes that the grant of the proposed ML may result in employment and commercial opportunities for the native title party and submits that, to the extent the proposed grant will have any effect on the development of the native title party’s social, cultural and economic structures, the effect may be positive (para 3.19 of grantee party’s statement of contentions).
The native title party acknowledges that the Carmichael Project has the potential to have a positive impact on the economic and social circumstances of the native title party (para 26 of native title party’s statement of contentions).
Western Australia v Thomas and Others (1996) 133 FLR 124 at 170 makes it clear that the positive effect of a future act can be taken into account.
However, on the material before the Tribunal, it is not possible to make any finding that the grant of the proposed ML will have a positive or negative impact on the development of the social, cultural and economic structures of the native title party.
It is true that the material before the Tribunal during the “good faith” challenge suggests that there had been discussion about employment and commercial opportunities which would have been of advantage to the native title party. However, in the absence of agreement between the grantee party and the native title party, it cannot be said that those benefits will now be available to the native title party.
Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies
The grantee party made the following submission about impact of the grant of the proposed ML (para 3.20-3.21):
[3.20] The Grantee Party is unaware of any access by the Native Title Party to the Subject Land and nor is it aware of the extent to which (in accordance with their traditions) any of the Native Title Parties [sic] carries out rites, ceremonies or other activities of cultural significance on the Subject Land. The Grantee Party, therefore, cannot state what would be the effect of the grant of ML 70441 on that access or on those rites, ceremonies or other activities of cultural significance.
[3.21]To the extent that the grant of ML 70441 will impact on the enjoyment by the Native Title Party of their registered native title rights and interests, the Grantee Party intends to:
(a)allow the Native Title Party to exercise their registered native title rights and interests on the Subject Land; and
(b)accommodate access by the Native Title Party to the Subject Land,
insofar as the exercise of such rights and interests and such access:
(c)are not inconsistent with the carrying out by the Grantee party of authorised activities under ML 70441; and
(d)can be accommodated in accordance with the Grantee Party’s statutory obligations, including pursuant to workplace health and safety laws, for a mine site.
The native title party contends that “the use of the future act area for the Carmichael Project will necessarily limit the access of the Native Title Party to the future act area to exercise their native title rights and interests for the operating life of the Carmichael project...” (para 14 native title party’s statement of contentions). It rejects the stated intention of the grantee party to provide access on the basis that to date there has been no agreement, so that the grantee party “is not bound to facilitate access pursuant to its stated intention” (para 17). In any event, the native title party contends that the future act will impact on the native title party’s native title rights and interests inter alia by restricting access to the area (para 18).
The Tribunal has been presented with no evidence of the native title party having access to, or carrying out any rites, ceremonies or other activities of cultural significance on the area of the proposed ML.
In the absence of any supporting evidence from the native title party, and in light of the stated intentions of the grantee party as to access, I am unable to conclude that there will be any (or any significant) impact on the ability of members of the native title claim group to access the area of the proposed ML or to carry out rites, ceremonies or other activities of cultural significance.
Section 39(1)(a)(v) – effect on areas or sites of particular significance
Section 39(1)(a)(v) focuses on area or sites of “particular significance”. The term ‘sites of particular significance’ was interpreted by Carr J in Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21 at 34-35 in the following manner:
It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do...If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word ‘particular’ out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.
Although his Honour Justice Carr was concerned with the expression as used in s 237 of the Act, this interpretation has been found to be applicable in relation to s 39(1)(a)(v) of the Act in subsequent cases: see Jax Coal Pty Ltd v Smallwood and Others (2011) 260 FLR 99 at [69]; Bissett and Others v Mineral Deposits (Operations) Pty Ltdand Another (2001) 166 FLR 46 at [83]-[84] and Summons v Victoria and Others (2003) 176 FLR 1 at 23.
As explained in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1 at 34, if an area or site is significant it must be known and must be able to be located and the nature of its significance explained. A bald assertion that area or a site is of “particular” significance without an explanation as to why, will be insufficient: Drake at [89].
In the present matter, the native title party acknowledges that there is no evidence of sites of “particular significance” on the area of the proposed ML: see [38] above. It contends, however, that cultural heritage work on nearby areas has revealed the existence of “Significant Aboriginal Areas” on areas close to the proposed ML, which is stated to be relevant to the issue of sites of significance within the proposed ML (para 19 and 22(c)). It is said that it is not possible to state definitely at this stage that there are no such sites on the future act area (para 23). The Government party agrees: see [35] above.
The focus of the s 39(1)(a)(v) inquiry is on the effect of the future act on relevant areas or sites within the land or waters concerned. However, in some circumstances, the effect of the future act on sites or areas of particular significance located elsewhere may be relevant if they are linked in some way to sites or areas on the proposed future act area: see Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) & Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9 at [76], referring to Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 101 at [103].
The material provided does not establish that the “Significant Aboriginal Areas” outside of the proposed ML area are sites of particular significance, nor that they might be impacted by the grant of the proposed ML. In any event, there is no evidence linking those areas to sites or areas within the area of the proposed ML.
The Government party also contends (para 6.5) that the grant of the proposed ML is not likely to interfere with areas or sites of particular significance to the native title party because of the operation of Mineral Resources Act, the Environmental Protection Act and the Aboriginal Cultural Heritage Act. As to the relevant operation of that legislation see [39] to [41] above.
The grantee party has made the following submission:
[3.22]The Grantee Party and the Native Title Party have concluded an approved Cultural Heritage Management Plan (CHMP), in accordance with the requirements of Part 7 of the Aboriginal Cultural Heritage Act 2003 (ACHA)…The whole of the Subject Land is included in the CHMP area.
…
[3.24] The Grantee Party and the Native Title Party have conducted various Aboriginal cultural heritage surveys and clearances of the Subject Land, including cultural heritage surveys undertake to assist in informing the Project EIS. The results of all surveys and clearances have been shared by the Native Title Party with the Grantee Party.
[3.25]No sites of particular significance have been identified by the Native Title Party as a result of the Aboriginal cultural heritage surveys conducted, nor has the Grantee Party been otherwise informed of any sites within the Subject Land that are of particular significance to the Native Title Party.
[3.26]Further…a search of the Cultural Heritage Database and Register, maintained by the Department of Aboriginal and Torres Strait Islander and Multicultural Affairs under the ACHA, returned no record of Aboriginal cultural heritage located on the Subject Land.
[3.27] In any event, the Grantee Party intends to conduct authorised activities under ML 70441 in accordance with the terms of the CHMP.
As noted by the Tribunal in Drake at [92]:
Part 6 of the Aboriginal Cultural Heritage Act sets out the requirements for carrying out a cultural heritage study and for having its findings recorded on the Register. Only a relevant Aboriginal party can assess the level of significance of areas and objects included in such a study (s 53), and an Aboriginal party for an area, so far as is relevant to this inquiry, is a registered native title claimant – ss 34 and 35. If the cultural heritage surveys referred to by the grantee party were of the type dealt with in Part 6 then any area or site of significance would have been dealt with in accordance with that Part.
It is common ground that the cultural heritage surveys conducted have not identified any areas or sites of particular significance in the area of the proposed ML. Nor is there any evidence from the native title party on sites or areas of particular significance.
Given all of the matters set out above, the only conclusion open is that any mining activities carried out under the proposed ML are unlikely to affect any areas or sites of particular significance to the Wangan and Jagalingou People in accordance with their traditions.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party
The grantee party states that the native title party has not made known to it any of its particular interests, proposals, opinions or wishes in relation to the management, use or control of the area of the proposed ML (para 3.28). Further, to the extent that any interests, proposals and opinions have been made known during negotiations for agreement about the grant of the ML, these have related to the content of the proposed agreement, rather than the threshold issue of whether an alternative use to mining should be conducted on the area (para 3.29).
The native title party’s submissions in respect of this criteria refer to the following (at para 28):
28.In negotiations with Adani, the Native Title Party has made clear from the outset that:
a.Access should be available to ML70441 for the W & J people unless it is for reasons of safety or it will disrupt operations;
b.The use of the land for mining operations should be contingent on the employment and training of W & J people;
c.The W & J should be involved in environmental management of the land affected by the future act.
The evidence relied upon by the native title party is a copy of a draft position paper for the negotiation process presented to the grantee party at the meeting held on 6 October 2011: Annexure PM3 to the affidavit of Patrick Malone sworn on 18 December 2012, pages 19-40.
Inter alia, the draft paper refers to proposals for:
(a)access to the Project Area including that the Wangan and Jagalingou have access to the area unless it is for reasons of safety or if it will disrupt operations;
(b)employment and training, including that the grantee party should provide work readiness, training and employment programs for the Wangan and Jagalingou and other local indigenous people;
(c)environmental management, including that the grantee party should provide opportunities for Wangan and Jagalingou people to work with the grantee party’s environmental management staff.
It is clear that native title party’s interests, proposals or wishes, as expressed in [90] above, are concerned with the content of any agreement, rather than opposition to the grant of the proposed ML.
As the Government party says at para 6.6 of its statement of contentions, the native title party does not object to the grant of the mining lease. Rather it is the breakdown in negotiations which accords for the lack of agreement.
In any event, despite a lack of an agreement regarding access, the grantee party has indicated that it intends to accommodate access by the native title party to the land where that access does not disrupt operations and can be accommodated in accordance with the grantee party’s workplace health and safety obligations: see [74][74] above.
The grantee party also notes that the grant of the proposed ML may result in employment and commercial opportunities for the native title party (para 3.19) and that it is developing recruitment and training programs to address, inter alia, “potential hurdles to traditionally under-represented groups joining the mining industry” (para 3.42). This is supported by Section 6.5.4 of the Social Impact Assessment Report developed for the EIS (Mine and Rail Technical Reports, Document F) which identifies potential indigenous employment and business opportunities and states that “Adani will continue to work with traditional owners and Indigenous groups to further develop and agree indigenous business and employment opportunities”.
The native title party’s wish to being “involved in environmental management of the land” is an abstract proposal. It is remains, in my view, a preliminary negotiating position which has not been advanced by any evidence before the Tribunal.
While the Tribunal is obliged to have regard to the native title party’s interests, proposals, opinions or wishes, the fact that it has not been able to negotiate an agreement satisfactory to it is not on its own sufficient justification for a determination that the mining lease cannot be granted. If no agreement can be reached the Tribunal must make a determination taking into account the evidence relating to all factors referred to in s 39(1)(a) of the Act: see Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2010] NNTTA 101 at [67] referring to Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169 at [162]-[163].
Section 39(1)(c) – economic or other significance
The focus here is on the significance of the particular act. The Tribunal is required evaluate the impact of the future act which is the subject of the inquiry, not to inquire generally about the importance of mining to the economy, whether localised or national: Drake at [102].
The Government party contends (at para 6.7) that the grant of the proposed ML would provide economic benefit to the State of Queensland, local communities and indigenous populations through employment opportunities, infrastructure upgrades, improved services, royalties and economic stimulus to local towns and businesses within the area of the proposed ML.
The grantee party submits (at para 3.31) that the grant of the proposed ML will have “highly significant positive economic impacts on the country, the State and the local region”. The likely economic benefits are said to fall into two distinct categories:
(a)the primary, direct economic benefit resulting from the Project’s:
(i) expenditure in the community;
(ii) employment of personnel;
(iii) direct payment of taxes, State royalty and infrastructure charges; and
(iv) use of resources within the community, surrounding region and the State of Queensland; and
(b)the indirect economic benefits that will flow chiefly from increased spending and employment in service industries.
Specifically, the benefits are said to be as follows (at para 3.32-3.36):
(a)The expected capital investment for the life of the mine is expected to total $21.5 billion
(b)For the construction phase of the mine component of the project:
(i)on average over the construction years, $78.2 million per annum would be generated in impacts on the Gross Regional Product (GRP) of the Mackay region and $203 million per annum for the State of Queensland.
(ii)it would generate an additional 378 full time equivalent jobs per year within the Mackay region and 1,192 full time equivalent jobs for Queensland.
(c)For the operational phase of the mine component of the project:
(i)the total impacts on GRP at the point of full production, within that specific year would be expected to reach approximately $3.795 billion for the Mackay region and $4.17 billion for the State of Queensland.
(ii)there is an expected increase of 4,093 full time equivalent jobs locally, and 6,789 full time equivalent jobs for Queensland.
(d)For the constructional phase of the rail component of the project:
(i)on average over the construction years, $145 million per annum is expected to be generated on impacts on the Mackay region’s GRP and $229 million per annum in respect of the State of Queensland.
(ii)it will generate an additional 1,451 full time equivalent jobs in the Mackay region and 2,481 full time equivalent jobs for Queensland over the construction period.
(e)For the operational phase of the rail component of the project:
(i)at the point of full production, it is expected to have a $176.6 million impact on the GRP for the Mackay region and $274.1 million impact on the GRP for the State of Queensland.
(ii)it is expected to bring 1,215 full time equivalent jobs locally and 2,025 full time equivalent jobs for the State of Queensland.
The evidence supporting the above figures is the EIS. The summary information is set out in the EIS, Executive Summary.
The grantee party contends that the grant of the proposed ML will also have positive societal impacts on the local economy resulting from new people coming into the regional community as a result of the economic activity associated with the project (para 3.39).
Some measures the grantee party intends to put in place to mitigate potential adverse impacts on the region are strategies for increasing local participation in regional and Queensland based industry as well as encouraging the participation and up-skilling of disadvantaged groups (para 3.40).
The native title party refers to the grantee party’s description of the economic impacts of the project and comments that those figures are relevant to the inquiry and to any conditions imposed by the Tribunal (para 31).
The fact that the Carmichael Project was declared as a ‘significant project’ under s 26 of the State Development and Public Works Organisation Act highlights its economic and social importance.
The Carmichael Project is significant and will generate cash and flow-on benefits for the local economy and create employment, including, no doubt, for local Indigenous Australians. I find that if the ML is granted, there will be economic and associated social benefits for the local economy of Mackay and the State of Queensland, likely extending to the national economy.
Section 39(1)(e) – the public interest
As stated by the Tribunal in Drake at [108] it is “permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income and creates jobs and wealth for the Australian economy”: see also Evans v Western Australia (1997) 77 FCR 193 at 215 per Nicholson J; Carpentaria Gold Pty Ltd/Birri People/Queensland, [2010] NNTTA 148 at [51].
The Government party, in its statement of contentions (at paras 6.8-6.9), submitted that the grant of the proposed ML was in the public interest, referring to extracts from Carpentaria Gold Pty Ltd/Birri People/Queensland and Drake (setting out also the relevant passage from Evans v Western Australia).
The grantee party submitted (at para 3.41) that the grant of the proposed ML is in the public interest because “it will contribute to developing and maintaining a mining industry that generates very considerable export income, employment opportunities and wealth for local, State and national economies”.
The grantee party also outlined (at para 3.41) that a number of management and mitigation measures and commitments are being developed to address both positive and negative potential impacts of the project. These include recruitment and training programs, development of a Local Participation Plan maximising opportunities for local businesses, road maintenance and management agreements with the Isaac Regional Council for local roads and with the Department of Transport and Main Roads for State controlled roads and collaborative working relationships with the Council and other groups.
Evidence of these matters is in the EIS. The summary information is set out in the EIS Executive Summary Evidence.
The grantee party further notes that the “expected significant contribution of the grant of ML 70441 and the subsequent mine and railway development to the State is reflected in the Coordinator-General’s declaration of the Project to be a significant project” under the State Development and Public Works Organisation Act 1971 (at para 3.44).
The native title party does not specifically address public interest matters, although it acknowledges the general economic impact of the project (para 30).
I conclude that the public interest will be served by the grant of the proposed ML.
Section 39(1)(f) – any other relevant matters
The term “any other matter” provides the Tribunal with a broad charter to take into consideration range of matters that may be of relevance in making a s 38 determination.
No party has drawn the Tribunal’s attention to any other matter to be taken into account in making the determination.
There are no other relevant matters in the material provided to the Tribunal that I have taken into account in my consideration of the s 39(1) criteria.
Conditions
The native title party proposes a number of conditions to be imposed if the Tribunal determines that the grant of the proposed ML can be done. Those conditions require the grantee party:
(a)to accommodate access to the future act area and allow the exercise of registered native title rights and interests by the native title party;
(b)to require any assignee of the ML to execute a deed undertaking to be bound by these conditions as it were the grantee party;
(c)to pay an amount into trust, or secure an appropriate amount by bank guarantee to reflect the impact of the Carmichael Mine on the native title party’s rights and interests.
Access condition
As already noted, there is no evidence before the Tribunal which demonstrates that rights of access, or any native title rights and interests, are currently being exercised. In any event, the grantee party has indicated its intention to allow access as set out in [74] above.
In those circumstances there is no basis for imposing an express condition to allow continuing access to the area to exercise native title rights and interests.
Payment into trust or bank guarantee condition
Under s 41(5) of the Act, the Tribunal may determine that an amount be paid and held in trust until it can be dealt with under s 52A of the Act.
If it is justified on the evidence, the Tribunal may impose a condition which requires the grantee party to secure a specified amount of money by bank guarantee in favour of the Registrar of the Tribunal: see s 41(3) of the Act. Monies secured by bank guarantee are dealt with in accordance with s 52 of the Act depending on whether or not a determination of native title or a determination of compensation is made.
In determining whether to impose conditions pursuant to ss 41(3) and (5) of the Act, then President Neate in Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 101 at [270] refused to impose the requested conditions for the following reasons:
(a)the Native Title Party had not nominated an appropriate sum, nor a formula or set of criteria by which the Tribunal might calculate an appropriate sum.
(b)in the absence of judicial authority on the point, it is not clear what amount the compensation would be for the grant of the proposed tenement.
(c)if the similar compensable interest test is applied, then having regards to the range of registered native title rights and interests for the native title parties, it is not clear whether compensation for such things as deprivation of access to land or waters covered by the proposed tenement and diminution in the use made of the land would be greater or less than the amount paid to the owner of the land.
The conclusion reached by the Tribunal that “consequently, any figure or figures devised by the Tribunal for this purpose would lack any basis in evidence or legal principle and could be characterised as an arbitrary exercise of discretionary power” echoes the sentiment of the Tribunal in Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387 at [68]:
While the Tribunal is not obliged to determine such an amount by reference to what ultimately might be awarded by way of compensation, neither would it be prudent to simply pluck a figure out of thin air.
The Tribunal has indicated that it may be appropriate to impose conditions involving the payment of money if it is necessary to give effective protection to the native title rights and interests and other matters of concern to the native title party by reference to the criteria in s 39 of the Act: see for example, Western Australia v Thomas and Others (1999) 164 FLR 120 at 151; Minister for Mines (WA) v Evans and Others (1999) 163 FLR 274 at 284.
In the present matter, where the native title party has failed to provide evidence to substantiate any impact on the matters referred to s 39, it is difficult to discern any basis for imposing the condition sought.
Deed of Assignment
As there is no evidence to support the previous conditions, this requested condition is unnecessary and redundant.
Conclusion
The task of the Tribunal in making a future act determination is a discretionary one which involves weighing the various factors set out in s 39 of the Act. The Tribunal is required to thoroughly analyse the contentions/submissions and the evidence before it.
In this matter, I have no evidence from the native title party in respect of important aspects of the s 39 criteria.
I have considered the submissions and the available evidence and have applied the various factors in s 39 to reach the conclusion that the proposed future can be done without imposing conditions.
Determination
The determination of the Tribunal is that the act, the grant of Mining lease 70441 to Adani Mining Pty Ltd, may be done.
Raelene Webb QC
President
7 May 2013
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