Bissett v Mineral Deposits (Operations) Pty Ltd

[2001] NNTTA 104

Reported at (2001) 166 FLR 46

NATIONAL NATIVE TITLE TRIBUNAL

Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, [2001] NNTTA 104 (24 September 2001)

Application No:  NF 01/1

IN THE MATTER of the Native Title Act

-     and -

IN THE MATTER of a Future Act Determination Application

Carol Dawn Bissett and Others (native title party)

-     and -

Mineral Deposits (Operations) Pty Limited (grantee party)

-     and -

The State of New South Wales (government party)

FUTURE ACT DETERMINATION

Tribunal:         Mr John Sosso

Place:              Brisbane
Date:              24 September 2001

Catchwords:

Native title - future acts - application for a determination in relation to proposed sand mining lease – right to negotiate provisions of NTA – s. 39 criteria of NTA - effect of future act on native title party: enjoyment of native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures; freedom of access to land or waters covered by proposed future act; areas and sites of particular significance; interests, proposals and wishes - economic and other significance of the future act – public interest in the future act – validity of EIS and development consent – compensation - performance guarantees under the Mining Act – ownership of minerals.

Legislation:

Aboriginal Land Rights Act 1983 (NSW) ss36, 37,

Dangerous Goods Act 1975. (NSW)
Environmentally Hazardous Chemicals Act 1985 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) ss70, 74, 91
Heritage Act 1977 (NSW)
Mining Act 1992 (NSW) ss4, 51, 65, 70, 74, 387
National Parks and Wildlife Act 1974 (NSW) ss5, 84, 85, 86, 87, 90
National Trust of Australia (New South Wales) Act 1990 (NSW)
Native Title Act 1993 (Cwth) ss29, s30, 31, 35, 36, 37, 38, 39, 41, 52, 62, 80, 155, 185, 187, 190, 237, 240, 253,
Protection of the Environment (Operations) Act 1998 (NSW)

Cases:

Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People) WF00/2, WF00/3, WF00/4 & WF00/5 Deputy President Sumner, Mr J Sosso and Ms J Stuckey-Clarke, 8 December 2000

Bailey v Forestry Commission of NSW  (1989) 67 LGRA 200

Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106

Cheinmora v Striker Resources NL (1996) 142 ALR 21

City of Unley v Claude Neon Pty Ltd (1983) 32 SASR 329

Commonwealth v Yarmirr (1999) 101 FCR 171

Director of National Parks and Wildlife v Histollo Pty Ltd (1995) 88 LGERA 214

Environmental Defence Society v South Pacific Aluminium Ltd (No 4) [1981] 1 NZLR 530

Evans v Western Australia (1997) 77 FCR 193

Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353

Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310

Hayes v Northern Territory (1999) 97 FCR 32

Helman v Byron Shire Council (1995) 87 LGERA 349

Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64

Life of the Land v Brinegar (1973) 414 US 1052

Mabo v Queensland (No 2) (1992) 175 CLR 1

Malcolm v Newcastle City Council (1991) 73 LGRA 356

Members of the Yorta Yorta Aboriginal Community v Victoria (1998) 4 AILR 91

Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 180 ALR 655

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595

Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1986] 1 Qd R 437

Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402

Prineas v Forestry Commission of NSW (1984) 53 LGRA 160

Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13

Re Koara People (1996) 132 FLR 73 Deputy President Seaman QC, Members Smith and McDaniel

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50

Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21

Scott v Wollongong City Council (1992) 75 LGRA 112

Taylor (Njamal)/Western Australia/Mullan WF96/4 Hon. C J Sumner, 30 April 1996

Transport Action Group v Roads and Traffic Authority (1999) 46 NSWLR 598

Walley v Western Australia (1996) 67 FCR 366
Wandarang People v Northern Territory (2000) 104 FCR 380
Ward v Western Australia (1998) 159 ALR 483
Western Australia v Marjorie May Strickland & Ors, WF97/4 20 February 1998 Hon. C J Sumner
Western Australia v Thomas (1996) 133 FLR 124
Western Australia v Ward  (1996) 70 FCR 265

Western Australia/West Australia Petroleum/Hayes & Ors, WFOO/07 Deputy President Sumner 1 June 2001

Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17

WMC Resources Ltd/Western Australia/Evans WF99/4 Hon C J Sumner 23 December 1999
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory (1998) 82 FCR 533

REASONS FOR DETERMINATION

Background

[1] The grantee party has made application to the government party, pursuant to section 51 of the Mining Act 1992 (NSW) for a mining lease (ML 152) – the “proposed tenement”. In December 1999 an Exploration Licence (EL 5653) was granted to the grantee party in relation to the land which is now the subject of the proposed tenement. The granting of ML 152 is the creation of a right to mine, as that term is defined under section 253 of the Native Title Act 1993 (“the Act’). In accordance with the requirements of the Act, the government party gave notice on 3 May 2000 (pursuant to section 29 of the Act) of its intention to grant a mining lease.

[2] Subsequently the native title party lodged an Application for Determination of Native Title (N6009/00 – NC00/2) which includes the area of the proposed tenement. On 1 September 2000, and within four months of the section 29 notification, the Application was registered by the Native Title Registrar (s30(1)) thereby ensuring that the right to negotiate provisions of the Act applied to the granting of the proposed tenement.

[3] The Tribunal has been informed that the traditional country of the native title party is much larger than the area claimed in N6009/00. In fact the claimed area comprises only a very small proportion of country situated in the extreme south east of the contended traditional area.  The traditional area is bounded by the Pacific Ocean on the east, the northern shore of Port Stephens to Seaham in the north, by a line from Seaham to the Hunter River in the west and by the north bank of the Hunter River in the south west – Affidavit of Viola Louisa Brown, 24 July 2001 at paragraph 3 and the attachment marked “A”.

[4] Between September 2000 and March 2001 all of the above parties carried out negotiations in accordance with section 31, namely negotiations in good faith with a view to obtaining the agreement of the native title party to the doing of the proposed future act with or without conditions.

[5] Section 35 enables any negotiation party to apply to the Tribunal for a section 38 determination if at least six months have elapsed since the section 29 notification day and no section 31 agreement has been reached. In this matter the notification day was 3 May 2000, and on 29 March 2001 the grantee party made application for a determination.

[6] Subsequent to the grantee party’s application under section 35, and at the request of the parties (s.31(3)), Member Stuckey-Clarke assisted in attempting to reach a mediated outcome rather than this matter being determined after a full inquiry.  Unfortunately, despite mediation assistance, no agreement was reached.

[7] At the first preliminary conference of the parties which was convened on 26 April, 2001 I was informed that none of the parties wished to contend that any party had not negotiated in good faith – s31(2). In addition none of the parties raised any other issues of jurisdiction about the ability of the Tribunal to conduct an inquiry and make a determination.  I am satisfied in the circumstances that the Tribunal has jurisdiction to conduct this inquiry and make a determination – Walley v Western Australia (1996) 67 FCR 366, Anaconda Nickel Ltd. & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People) WF00/3, WF00/4 & WF00/5, Deputy President Sumner, Mr J Sosso and Ms J Stuckey-Clarke, 8 December, 2000.

In addition directions were issued for the conduct of this Inquiry.  The directions were subsequently modified to take into account timing considerations of the parties.  At the end of the day all parties substantially complied with the directions such that the Tribunal is in a position to make a determination.
[8] At the request of all parties, and in their presence, the Tribunal conducted a view of the area of the proposed tenement on Monday 30 July 2001.  On the following day (31 July 2001) the Tribunal reconvened so that the grantee party could call two witnesses to give evidence (Mr Jamieson and Mr Ridgeway) and be subject to cross-examination by the native title party and to ensure that any other procedural and evidentiary matters pertaining to the inquiry were settled. Following the hearing all parties submitted further written contentions to the Tribunal. On 31 July 2001 the native title party sought and obtained a direction as to confidentiality with respect to certain evidence (s.155). Subsequently the native title party sought, and was given, a variation of that direction which, inter alia, ensured the various affidavits of the Applicants in N6009/00 could be viewed and used by the Tribunal for the purposes of the arbitration without restriction. However, the Tribunal has exercised some care so that culturally sensitive information is not unnecessarily disclosed in this determination.

[9] Following the initial Preliminary Conference the native title party raised a number of issues relating to timing and brought to the attention of the Tribunal information which highlighted substantial difficulties that were being faced. It is, unfortunately, a fact that native title parties are increasingly required to be involved in a range of meetings and legal proceedings, often during the same time period. An application for a native title determination necessarily triggers a range of activities that transcend the substantive Federal Court application for determination of native title. In this particular instance the difficulties faced by the native title party were very substantial, however, the Act contains very clear requirements and statutory expectations about the manner in which the Tribunal will conduct its proceedings when making a determination.

[10] Section 36(1) enjoins the Tribunal to make a determination “as soon as practicable.” Subsection (4) then directs that a report is to be sent to the Commonwealth Minister if a determination is not made within six months of the date that an application is made for a determination.  Further provision is made for possible Ministerial intervention commencing four months after the date a request for a determination is made.  These provisions obviously do not compel the Tribunal to reach a determination within six months, but they highlight the Federal Parliament’s desire that this should be achieved unless there are good reasons to the contrary.   As has been pointed out previously, these provisions are not mere formalities but a serious step in the legislative scheme – per Hon. C.J. Sumner, Taylor (Njamal)/Western Australia/Mullan WF96/4, 30 April, 1996. The Tribunal is not imposing any internally created case management timelines, but working within what is fundamentally one of the oft repeated key elements of the future act legislative regime, namely balancing the needs of economic development proposals and the protection of native title within clearly defined and short time periods.  The Tribunal has worked within the timeframes that the Parliament has required, but has attempted, so far as is practicable, to ensure that no party has been disadvantaged.

[11] The grantee party and the government party have both contended that the proposed tenement should be granted without conditions.  The native title party has contended that the future act should not proceed.  Initially the native title party contended that if the future act did proceed that the Tribunal impose a condition for the payment by the grantee party of an amount of $5 million in trust pending the outcome of the native title application.  However by letter dated 9 August, 2001 the lawyers acting for the native title party, Messrs Trevor Dunn Solicitors, informed the Tribunal that:

“The Native Title Party do not at this stage press for payment of any moneys in respect of a future claim for compensation.  The Native Title Party reserve their right at an appropriate time in an appropriate forum to bring such a claim as they may be advised for compensation and/or for royalties on the basis that they have title to minerals.”

I will deal with both the issue of compensation applications and mineral rights later in this determination. Suffice it to say, the Tribunal does not have before it a request for a condition that moneys be paid into trust under section 41 and dealt with under section 52.

The proposed future act

[12] The proposed future act before the Tribunal concerns the extension of a substantial mineral sand mining operation which is conducted mostly on mobile sand dunes located in an area known as Stockton Bight.  It is an area located near Williamtown Airport and north of the mouth of the Hunter River. The proposed tenement is approximately 8 km north east of Newcastle.  Most of the area of the proposed future act consists of unvegetated sand dunes.

[13] The material before the Tribunal indicates that the grantee party obtained consent in 1978 from the Port Stephens Council to mine heavy minerals in an area of land north of Coxs Lane easement (the Stockton mine). The grantee party commenced rutile and zircon mining in this area in approximately September 1985. Mining at this site ceased in August 1996.

[14] At approximately the same time as the Stockton mine operations ceased, the grantee party was granted development consent (D1736/95) by the Port Stephens Council for rutile and zircon mining at the “Fullerton” site. This was an area of approximately 137 ha and was 2.5 km in length. It contained areas of mobile sand dunes, vegetated areas (16 ha) and sections of what is termed “the deflation basin”. Following approval by the Council the government party issued a section 29 notice to the effect that it intended to grant a mining lease (ML 1414) over the area of the Fullerton site. The notification did not trigger a native title response.

[15] Mining commenced at the Fullerton site in May 1997.  The Fullerton site is adjacent to the land subject to the proposed tenement. It would appear that the grantee party has mined the Fullerton site in a northeasterly direction along the coastal edge of the mining area.  Mining has been undertaken continuously in a series of mine paths approximately parallel to the coast, with each new mine path positioned on the landward edge of the previous mine path.  Mining of the Fullerton site is almost completed. Since the commencement of mine operations some 64,650 tonnes of heavy mineral concentrate has been extracted, which amounts to 0.3% of the sand mass processed.

[16] The proposed tenement can be divided into three sections.  The southern extension area is immediately to the south west of the Fullerton mining area.  It comprises unvegetated sand dunes and has an area of 38 ha.  The central extension area consists of 162 ha of unvegetated sand dunes and extends 5.8 km north east of ML 1414.  The northern extension area extends from the northern boundary of the central extension area to approximately 10 km north east of ML 1414.  The northern extension area adjoins the former Stockton mine.  The northern extension area is approximately 395 ha (“Extension of Rutile and Zircon Mining ‘Fullerton Project’,” Environmental Impact Statement, April 2000 (“the EIS”) – at 1.1)

[17] The grantee party has been required to comply with various planning and statutory requirements. As the proposed mining operation is a “Designated Development” under Schedule 3 of the Environmental Planning and Assessment Regulation 1994 (made pursuant to the Environmental Planning and Assessment Act 1979), an Environmental Impact Statement is required to be prepared in consultation with the Director General of the Department of Urban Affairs and Planning and relevant government agencies. In this instance a very comprehensive EIS was prepared for the grantee party by Umwelt (Australia) Pty Limited.  The native title party has raised a number of issues about the EIS which will be dealt with later in this Determination.

[18] The proposed mining development is also an “Integrated Development” under section 91 of the Environmental Planning and Assessment Act 1979 as it requires a number of relevant approvals.  The relevant approvals are set out below (these are extracted from the EIS at 4.1):

Act	Provision	Approval	Approval Body
National Parks and Wildlife Act 1974	s 90	Consent to knowingly destroy, deface or damage or knowingly cause or permit the destruction or defacement of or damage to, a relic or Aboriginal place.	National Parks and Wildlife Service
Protection of the Environment (Operations) Act	s 42	Environment Protection Licence (scheduled under clause 654 of Schedule 1 of the Protection of the Environment (Operations) Regulations 1998)	Environment Protection Authority
Water Act 1912	s 116	Licence to commence sinking a bore or to enlarge, deepen or alter a bore.	Department of Land and Water     Conservation

[19] The grantee party is also required to comply with a number of planning instruments, which are as follows:

1.Hunter Regional Environmental Plan 1989;

2.Port Stephens Local Environment Plan 1987;

3.Stockton Bight Management Plan and Crown Land Assessment;

4.Tomago/Tomaree/Stockton Groundwater Management Plan;

5.Tourism Master Plan; and

6.New South Wales Coastal Policy 1997.

The effect of each of these planning instruments is set out at paragraphs 4.2.1 – 4.6 of the EIS.

[20] The grantee party is also required to comply with certain State Environmental Planning Policies which also apply to this project.  The relevant Policies are set out below:

1.State Environmental Planning Policy No 44 – Koala Habitat Protection and Draft Port Stephens Koala Habitat Management Plan;

2.State Environmental Planning Policy No 11 – Traffic Generating Developments;

3.State Environmental Planning Policy No 33 – Hazardous and Offensive Development;

4.State Environmental Planning Policy No 45 – Permissibility of Mining;

5.State Environmental Planning Policy No 55 – Remediation of Land.

Some of these Policies will only have a marginal significance to the proposed mining operations.

[21] Apart from the three statutes set out in [18], there are also a number of other legislative provisions of relevance to the grant of the proposed tenement. Of importance is the Mining Act 1992. This statute contains provisions regulating mining activities, including rehabilitation of mine sites and general environmental activities. Nevertheless it only is concerned with the regulation of activities involving minerals. For the purposes of the Mining Act 1992, minerals are those substances set out in Schedule 1 of the Mining (General) Regulation 1997. Included in the substances set out in Schedule 1 are the following mineral sands: ilmenite, leucoxene, rutile and zircon.

[22] Of particular relevance are the provisions of sections 65 and 74 of the Mining Act 1992:

“65 Development consents under the Environmental Planning and Assessment Act 1979

(1)This section applies:

(a)in relation to a mining lease for a mineral or minerals, to land for which development consent is required before the land may be used for the purpose of obtaining minerals, and

(b)in relation to a mining lease for a mining purpose or mining purposes only, to land for which development consent is required before the land may be used for that purpose or those purposes.

(2)The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land.

(3)If a mining lease is granted over land for which an appropriate development consent has been given:

(a)any condition (being a special purpose condition within the meaning of Division 2 of Part 2 of Schedule 1) imposed on the development consent by a consent authority, or by a body hearing an appeal from a consent authority, is void, and

(b)the development consent (to the extent only to which it relates to the use of the land concerned for the purpose of obtaining minerals) is taken to have been given free of the condition.”

74 Mining unaffected by Environmental Planning and Assessment Act 1979

(1)     While a mining lease has effect:

(a)nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an

environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area; and

(b)to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease.

(2)Subsection (1) ceases to apply to a mining lease over land for which development consent to the use of land for the purpose of obtaining minerals is required if mining operations under the lease have not begun within 5 years after the date on which the development consent is given.

(3)This section does not exempt the holder of a mining lease from obtaining any consent under the Environmental Planning and Assessment Act 1979 that the person is required to obtain in connection with the erection of buildings, the opening of roads or the subdivision of land.

In short, where a development consent is required, such consent must be in force before the Minister can grant a mining lease. In addition there must an “appropriate” consent.  This was explained by Stein JA in Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17 as follows (at [264]):

“It must be kept firmly in mind that s65 acknowledges that a planning consent authority may refuse consent to a mining operation the subject of a proposed mining lease in order that to a mining operation the subject of a proposed mining lease. In my opinion, there must be some reasonable congruence or consonance between the subject matter of the development consent and what is proposed for the mining lease in order that the former may be an appropriate development consent under s65.”

As His Honour pointed out, the object of section 65 is to ensure that the objectives of planning law are achieved, including the right of the public to object. His Honour also made it clear that while section 74 renders a mining lease immune from planning law in the sense that mining operations cannot be prevented, it does not prevent the regulation of the manner in which mining operations are carried out, except where the effect is to prevent mining altogether – at [269].

I understand these provisions as not undermining the development consent process at all. In fact an appropriate development consent is a condition precedent for the grant of a mining lease – s.65(2). A developer who commences mining operations without first obtaining development consent can be injuncted from carrying out mining operations until such time as that consent is obtained – Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310.

Moreover once a mining lease is granted, although that remains the primary instrument pursuant to which mining operations are governed, a mining lessee does not have carte blanche to ignore the environmental and planning regime in place. Rather, as I understand it, the relevant legislation has been drafted to ensure that a sequential process is in place to allow for public and professional scrutiny of a project at the outset and for that project then to move on to the next stage of the review process and not then be subject to conflicting requirements. Conditions imposed at an earlier stage remain in force, subject only to the fact that a mining operation can only be prevented or terminated by action taken under the Mining Act 1992 s.74(1).

[23] The Mining Act contains a comprehensive regime aimed at facilitating an adequate consultation process. The consultation process is a public one, requiring the Minister to notify (pursuant to the requirements of Schedule 1 to the Mining Act 1992) government agencies (Cl 5 – also ss4 and 387 which set out what constitutes a government agency), the Director of Planning (Cl 6), specified government agencies in certain circumstances (Cl 7 and 8 – these are not relevant to this determination), relevant local authorities (Cl 17) and members of the public (Cl 24) and afford each of the notified persons or bodies an opportunity to have an input before the lease is granted. In particular a local authority can either object to the granting of a mining lease or propose that specified conditions be included in the lease (Cl 18(1)). The type of conditions which can be requested include matters such as the preparation of the land for mining, mining methods, rehabilitation of the land, safety measures and security to be given with respect to these matters (Cl 15).

Notification must be inserted in a newspaper circulating throughout New South Wales as well as a local newspaper (Cl 24). The notification must include a description of the land sought and at least 28 days must be given from the date of publication for the public to object.  Nevertheless to prevent persons objecting under both the Mining Act and the Environmental Planning and Assessment Act, persons who may make submissions on the granting of a development consent under the latter Act cannot also object under the former Act – (Cl 28).

However, as pointed out above, once a mining lease is granted, nothing under the Environmental Planning and Assessment Act 1979 operates to prevent a mining lessee carrying on mining operations – s.74.

[24] Apart from the standard statutory condition that the holder of a mining lease will not suspend operations without Ministerial consent, the Minister may also impose other conditions when making the grant – section 70.

[25] The government party submitted to the Tribunal a copy of the draft conditions to which ML 152 will be subject.  The government party outlined in paragraph 24 of its Statement of Contentions of 1 June 2001 that the draft conditions include the following requirements:

(a)A requirement that there be a Mining Operations Plan,[1]

[1] Draft Conditions for Mining Lease MLA 152, Clause 2

(b)A requirement that there be an Annual Environment Management Report,[2]

(c)A requirement that the grantee party comply with any directions of Environmental Officers to cease operations where there has not been compliance with legislation or conditions,[3]

(d)Requirements as to safety [4]

(e)Requirements as to rehabilitation of land disturbed,[5]

(f)A requirement that the operations be conducted to avoid soil erosion, air pollution, water pollution or soil contamination,[6]

(g)A requirement that access tracks be kept to a minimum and be positioned so as to avoid unnecessary damage to the land,[7] and

(h)A requirement that limits the felling, stripping or destruction of timber and clearing of land.[8]

[2] Draft Conditions for Mining Lease MLA 152, Clause 3

[3] Draft Conditions for Mining Lease MLA 152, Clause 5

[4] Draft Conditions for Mining Lease MLA 152, Clause 11

[5] Draft Conditions for Mining Lease MLA 152, Clause 12

[6] Draft Conditions for Mining Lease MLA 152, Clause 14

[7] Draft Conditions for Mining Lease MLA 152, Clause 18

[8] Draft Conditions for Mining Lease MLA 152, Clause 19

[26] Other New South Wales legislation also impacting on the proposed mining operations include: Protection of the Environment (Operations) Act 1998, Heritage Act 1977, Environmentally Hazardous Chemicals Act 1985 and the Dangerous Goods Act 1975.

[27] As indicated at [22], before a mining lease can be granted development consent must first have been given.  In this matter the grantee party lodged development applications with both the Port Stephens Council as well as with the Department of Urban Affairs and Planning.

[28] The Sustainable Development Committee of the Council considered on 1 August 2000 the development application, as well as draft conditions that would be imposed.  The conditions considered were later the subject of correspondence between Pamela Westing of the Council and the grantee party, wherein the grantee party was informed that the Council had determined to grant development consent (the Determination date was 26 February, 2001) subject to conditions (Development Consent 16-2000-749-1).   Those conditions deal with a number of matters which are set out in paragraph 26 of the government party’s contentions of 1 June 2001.  Amongst them were matters pertaining to disturbance of sedentary and migratory wading birds, mine remediation, compliance with conditions outlined by the Department of Land and Water Conservation, National Parks and Wildlife Service and the Environmental Protection Agency.  Of particular importance, however, for this Inquiry were the conditions relating to Aboriginal heritage.  The following conditions appear in Schedule 1 of Ms Westing’s correspondence to the grantee party:

“1.4 The applicant shall prepare an Aboriginal Heritage Management Plan for the MLA prior to commencement of mining on the subject site.

The Management Plan should:

a)          address both the known Aboriginal relic sites and the areas identified as having the potential

to contain Aboriginal relics,

b)          be prepared in consultation with the Aboriginal Community and the NPWS, and

c)          be made available to the Director General of the NPWS and Port Stephens Council, and

endorsed by the Aboriginal community.

The Management Plan should include but not be limited to

d)          documentation of consultation with the relevant Aboriginal community group/s to identify any

outstanding issues,

e)          a clear statement on how any such issues will be addressed,

f)           identification of conservation objectives for the known Aboriginal relic sites located on either

side of the dredge path,

g) a program of monitoring of the MLA as a whole which would preferably be seasonally based to identify Aboriginal relics as they are uncovered by wind erosion,

h)a program of monitoring the area of dredge activity on a regular basis which may include a sampling of the tailings remaining on the screens and an examination of the stratigraphy of the sand walls for Aboriginal relics,

i)         protocols to be adopted when Aboriginal relics are located during the monitoring programs,

j)          further archaeological investigation of Aboriginal relic sites as identified in the EIS as being in a state of increasing fragility from natural and cultural forces for scientific and cultural education purposes and possible salvage,

k)active management strategies for Aboriginal relic sites currently known to be within close proximity to the dredge path,

l)          long term management strategies for when mining activity ceases, and

m)provision of educational and media targeted programs for public awareness of the cultural heritage values of the area.

1.5 The dredge path boundaries shall be adjusted to avoid and protect Aboriginal Relic Sites numbered 34 and 35 as noted in EIS”.

[29] An Aboriginal Heritage Management Plan has since been prepared by Umwelt (Australia) Pty Limited for the grantee party.  The Plan which is dated April 2001 purports to address the above conditions in Sections 2 to 5 of the Plan.  The native title party has raised issues about the Plan (see paragraph 29 of the native title party’s Statement of Contentions dated 24 July 2001) which will be referred to later in this determination.

In July 2000 the Department of Urban Affairs and Planning proposed conditions in addition to those originally proposed by the Council. These additional matters are set out in paragraph 27 of the government party’s Statement of Contentions of 1 June 2001.  The government party contended in that paragraph that the draft conditions were now addressed by the conditions imposed by the Council.  This contention was not challenged by any other party.

[30] The native title party and the government party expressed divergent views on the cumulative effect and effectiveness of the above provisions and conditions.

Native Title Rights and Interests

[31] The area of the proposed tenement falls within an area of land the subject of the Application of the Maaiangal Clan.  This Application was filed in the Federal Court on 3 August 2000 and entered on the Register of Native Title Claims on 1 September 2000. As a consequence the native title claimants are negotiation parties for the purpose of the right to negotiate procedures set out in section 31.  The Applicants for the Maaiangal Clan are Carol Dawn Bissett, Vernon James Ridgeway and Viola Louisa Brown.

[32] The rights and interests, so far as is relevant, entered on the Register are as follows:

1.Subject to paragraphs 3, 4, 5 and 6 below, a right of possession, occupation, use and enjoyment of the area covered by the application against the whole world.

2.Further and in the alternative to paragraph 1 and subject to paragraphs 3, 4, 5 and 6 below in relation to the area covered by the application:

(a)    (right claimed not registered);

(b)    the right to possess the area;

(c)     the right to occupy the area;

(d)    the right to be present on the area;

(e)     the right to use and enjoy the area;

(f)   the right to travel through the area;

(g)    the right to live on the area;

(h)    the right to camp on the area;

(i)   the right to speak for the area;

(j)   the right to hunt for animals on the area;

(k)     the right to gather and use or dispose of plants and minerals on the area;

(l)   the right to manage the animals, plants and minerals on the area;

(m)   the right to make decisions about the way the area may be used by non native title holders;

(n)    the right to carry out traditional ceremonies and activities on the area;

(o)    the right to free access to the area for the purpose of satisfying the rights identified in the proceeding sub-paragraphs.

3.   The rights and interests claimed in paragraphs 1 and 2 above (“the native title rights and interests”) are:

(a)Subject to the rights and interests of those lawfully exercising rights and interests which have been validly created or vested in them by the State of New South Wales.

(b)Subject to the rights and interests of those lawfully exercising rights and interests which have been validly created or vested in them by the Commonwealth of Australia….

6. Native title rights and interests are not claimed in respect of….

(b)  Any minerals, petroleum or gas which are wholly owned by the Crown.”

[33] The government party stated at paragraph 31 of its Statement of Contentions of 1 June 2001 that it had: “been unable to examine the Register in relation to the present claim.  Documents provided by the tribunal in relation to the application of section 190B(6) suggested that the registered native title rights and interests might be described under the following headings”.  The government party then outlines the rights and interests set out in clause 2 at [32].

[34] At no stage did the government party indicate at any of the conferences or hearings convened by the Tribunal that it did not have a proper extract from the Register of the Maaiangal Clan application.  It is worth therefore pointing out that section 185(3) makes it clear that the Register of Native Title Claims may be kept by use of a computer. Moreover although the Register must be available for inspection by the public during normal business hours (s.187(1)), where the Register is kept by use of a computer, the requirements of s187(1) are complied with by giving the public access to a computer terminal that they can use to inspect the Register, either by viewing a screen display or by obtaining a computer print-out – s187(3).  There is no suggestion that the “documents” provided by the Tribunal to the government party did not amount to an accurate print out of the relevant Register record of the Maaiangal Clan application.  I therefore have proceeded on the basis that the government party, despite the comments quoted above, had at all relevant times, an accurate record of the registered native title rights and interests of the native title party.

Land claims pursuant to the Aboriginal Land Rights Act 1983

[35] In 1996 the Worimi Local Aboriginal Land Council claimed pursuant to sections 36 and 37 of the Aboriginal Land Rights Act 1983 (NSW) various parcels of land at Stockton Bight.

[36] On 3 May 2001 the Minister for Land and Water Conservation informed the Land Council that he had granted part of Aboriginal Land Claim 5749, and that the land would be transferred subject to any native title rights and interests existing in relation to the land immediately before the transfer. The land proposed to be transferred includes a substantial portion of the northern section of the proposed tenement.  The Minister also advised that other land claimed would be transferred provided that the Land Council agrees to lease the land to the Minister for the Environment for reservation or dedication under the National Parks and Wildlife Act 1974. Again any land so transferred would be subject to existing native title rights and interests.  The land which is the subject of this proposal constitutes most of the remaining area of the proposed tenement in the northern and central sections.

[37] The government party has advised the Tribunal that no land has yet been transferred to the Worimi Local Aboriginal Land Council.

Key statutory provisions

[38] The key statutory provisions that guide Tribunal future act determinations are sections 38 and 39. Section 38 requires that the Tribunal must (unless section 37 applies) make a determination either that:

(a)the act must not be done; or

(b)the act may be done; or

(c)the act may be done subject to conditions to be complied with by any of the parties.

Of particular importance is that the Tribunal cannot make a determination subject to a condition that native title parties are entitled to payments worked out by reference to profits made, or income derived or things produced by a grantee party as a result of doing anything in relation to the land or waters concerned after the act is done – s.38(2).

[39] Section 39(1) provides that in making a determination the Tribunal must take into account the following criteria:

(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;

(d)

(e)any public interest in the doing of the act;

(f)    any other matter that the arbitral body considers relevant.

General principles governing the inquiry

[40] As the High Court has pointed out it is “erroneous to regard the registered native title claimant’s right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application.”  Equally “it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and other rights.” As their Honours explained the Act “simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to.” per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 616.

[41] This process can therefore be understood as an endeavour by the native title party to preserve the status quo pending the ultimate outcome of its native title determination application in the Federal Court. The role of the Tribunal in these circumstances is to analyse the material put before it to see if it is consistent with and explains the registered native title rights and interests claimed and then analyse what effect the proposed future act will have on those rights and interests.

[42] In approaching its task the Tribunal is required to read the Act “with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title” –per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in North Ganalanja at 614-615. Moreover, it would be wrong to construe the Act narrowly – per Kirby J in North Ganalanja at 653. The Tribunal has previously determined that it should give a beneficial construction to the provisions in the Act, so as to give the fullest relief which the fair meaning of the Act will allow – Re Koara People (1996) 132 FLR 73 at 81 per Deputy President Seaman QC, Members Smith and McDaniel. On appeal this aspect of the Tribunal’s determination was not contested – Evans v Western Australia (1997) 77 FCR 193 at 202.

[43] As the High Court pointed out in North Ganalanja the right to negotiate provisions do not “strip away” powers otherwise possessed by Governments.  The High Court was careful to point out that an application for determination of native title does not by its mere lodgement otherwise affect rights, powers or interests. Accordingly the Tribunal has previously indicated that it is proper for it to approach its task under section 38 by interpreting the future act provisions so that, as far as is practicable and appropriate, they operate in harmony with existing State and Territory laws governing land management, planning, environmental protection and mineral development – see Re Koara (1996) 132 FLR 73 at 80. The right to negotiate is exactly what that term indicates; a right to negotiate. It is not a right to veto future acts per se.

[44] Moreover, although as will be indicated later, environmental, town planning and related matters can be properly taken into account in reaching a determination, this is not a Tribunal charged with generally reviewing the merits of decisions made by the requisite authorities in the States and Territories on environmental and town planning matters. The charter of this Tribunal is limited to determining whether a future act should proceed absolutely or conditionally or not at all having regard to the specific criteria outlined in section 39.

[45] So far as the Tribunal’s inquiry function, the proper approach was summed up in Western Australia v Thomas (1996) 133 FLR 124 (Members Sumner, O’Neil and Neate) as follows (at 162):

(1)     “The Tribunal’s determination must be based on logically probative evidence and by application of the law.

(2)   The Act recognises the interests of the negotiation parties in the outcomes of the inquiry and gives them various procedural rights, including a reasonable opportunity to present their case.

(3)   There is no onus of proof as such but there is a commonsense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge.  Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions.

(4)   Although the Tribunal may conduct its own inquiries and obtain evidence itself, it is not generally required to do so and, as a matter of general practice where parties are represented before the Tribunal, would not do so.  In other words, the Tribunal is not required as a matter of general practice to make out a party’s case for it where that party chooses not to produce relevant evidence.

(5)   The Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.

(6)   There may be circumstances in which the Tribunal is obliged to obtain relevant evidence of which it becomes aware, particularly where it is readily available and centrally relevant to the case.

(7)   Where the Tribunal makes its own inquiries in the absence of the parties, and intends to rely on evidence so obtained, it should advise the parties of this and give them an opportunity to make submissions on it.  This should occur whether the hearing has concluded or not.

(8)   While these principles are ordinarily applicable, there may be circumstances where the Tribunal would consider it appropriate to be more active than normal and decide to conduct its own inquiries and appoint counsel to assist it.  This could occur because of the requirements of justice or the complexity of the case.

(9)   In determining what to do in any particular case the Tribunal must follow the provisions of s 109 as to its way of operating.”

[46] This inquiry was conducted in accordance with the above propositions.

[47] In considering the various criteria outlined in section 39, there is no statutory obligation to give greater weight to one over another. Rather, the weight to be given to any of the criteria will be dependent on the evidence before the Tribunal – Western Australia v Thomas (1996) 133 FLR 124 at 166. In addition the Tribunal is not restricted to the specified criteria. Section 39(1)(f) requires the Tribunal to take into account any other matter which is of relevance.

Finally, in determining the effect of the future act, the Tribunal is required to take into account the nature and extent of non-native title rights and interests in relation to the area of the proposed tenement as well as the existing use of that area by persons other than the native title party – section 39(2). This subsection was inserted by the 1998 amendments and in the Explanatory Memorandum to the Native Title Bill 1997 as circulated by the Prime Minister it was said that it “is intended to provide a more balanced context for the arbitral body in making its decision” (20.59).

Registered native title rights and interests – section 39(1)(a)(i)

[48] One of the considerations that the Tribunal must take into account is the effect of the future act on the enjoyment of the native title party’s registered native title rights and interests – section 39(1)(a)(i). Prior to the 1998 amendments to the Act paragraph (a)(i) referred to “any native title rights and interests”.  The Explanatory Memorandum circulated by the Prime Minister to the Native Title Bill 1997 explained the changes to paragraph (a)(i) in the following terms (20.55):

“The Bill removes any implication that the arbitral body is required to make a finding in relation to the existence of native title rights and interests in a right to negotiate determination.   The Bill makes it clear that the arbitral body is required to assess the effect of the proposed act on the enjoyment by native title parties of their  determined or claimed native title rights and interests rather than any native title that may exist.”

Consequently in conducting its inquiry the Tribunal is required to focus on the registered native title rights and interests and not engage in a more general inquiry – see also WMC Resources Ltd./Western Australia/Evans, WF99/4, 23 December 1999, Hon C J Sumner at p.9.

[49] The tenor of the legislation requires, nonetheless, that if rights or interests are registered the Tribunal is required to accept the possibility that such rights and interests exist – Western Australia v Thomas (1996) 133 FLR 124 at 167. To operate in any other fashion would be to contradict the ruling of the High Court in North Ganalanja and to disturb the status quo in a fashion that would pre-empt the Federal Court in making a final native title determination over an area.
[50] The government party in its submissions of 9 August 2001 contended that the abbreviated description of the registered native title rights and interests must be given substance through evidence (at paragraph 4).  In support of this proposition the government party cited Deputy President Sumner in Western Australia/West Australia Petroleum/Hayes & Ors, WFOO/07, 1 June 2001.

[51] In fact what Deputy President Sumner said after quoting the registered native title rights and interests was as follows (at [23]):

“These identified interests apply to the claim area generally.  For the purposes of this inquiry, I must assume that these are the rights and interests that could potentially be affected.  However, it is ordinarily the responsibility of the native title party to produce evidence of how these registered rights and interests are enjoyed and exercised so that the Tribunal can consider the likely impact of the future act.”

As the Tribunal highlighted in Western Australia v Thomas, there is no onus of proof in these proceedings.  The native title party has no obligation to produce evidence as such. However, if no evidence is produced the Tribunal is entitled to give as much or as little weight to the contentions of the relevant party as is appropriate having regard to the nature of the evidence before it. The native title party very properly submitted in its Submissions of 15 August 2001 that the Tribunal should give weight to the effect of the proposed act on the registered rights and interests by reference to the evidence with respect to native title and the proposed act without either assuming there will be an effect because certain rights and interests are claimed or establishing an evidentiary threshold which must be met – paragraph 2.

[52] One other issue raised by the government party was that if a native title party chooses to describe a right or interest at “a broad level of abstraction” this cannot alter the substance of the right – Submissions of government party, 9 August 2001 at paragraph 4.  Of itself this is an unexceptional proposition.  It has long been accepted that if a proposed act has effect on the enjoyment of native title rights and interests, this is a matter of fact to be determined on evidence before the Tribunal. Obviously this would include evidence of the native title rights and interests that are capable of being affected, and whether the enjoyment of those rights and interests will be affected in a minor or significant manner – see Western Australia v Thomas (1996) 133 FLR 124 at 167.

However, the government party then went on and claimed: “for example, a right arising from a traditional use of ochre from a particular site cannot be expanded into a right that relates to ‘minerals’ or to ‘resources’ simply because the shorthand description is in terms that might embrace a wider range of subjects.” With respect to the government party this is a curious submission. It is curious because the registered rights and interests are not so specific, but in fact are more general.  The first part of the government party’s contention warns against descriptions that are too broad, yet the second part focuses on contentions which are specific and which may be interpreted too broadly. Insofar as this contention seems to focus on the issue of minerals, it will be dealt with later.

[53] It may well have been that what the government party was seeking to highlight is that section 39(1)(a)(i) refers to the “enjoyment” by the native title party of its registered rights and interests. The Tribunal has previously found that the introduction of the word “enjoyment” requires that the Tribunal consider how the registered native title rights and interests are currently being exercised and enjoyed.  The Tribunal is not required to assume that simply because rights and interests have been registered that they are all being exercised or enjoyed equally throughout the claim area.

[54] The native title party in its Statement of Contentions claimed that the area of the proposed tenement was of national significance, it being one of the very few areas with coastal sedimentary sequences going back to the last glacial period.  It was also claimed that it is of even greater regional significance.  The proposed future act will change this area, it was claimed, forever and in a fundamental and irreversible manner.  It was further contended that the area of the proposed tenement is an essential and integral part of the traditional area of the native title party, which has only ever been inhabited by the ancestors of the native title party.

[55] The area of the proposed tenement is basically comprised of mobile sand dunes. It was contended that the very nature of the land ensured that the registered rights and interests of the native title party had not been disrupted or curtailed by European presence on the land.  In contradistinction, it was suggested that the future act would constitute a complete disruption of those rights and interests, resulting in the destruction and desecration of Aboriginal archaeological sites.  It was also claimed that the doing of the future act would deny the native title party its registered native title rights and interests, in particular those set out at subparagraphs 2 (b),(d),(e),(f),(i),(k),(l) and (n) in [32] - Native title party, Statement of Contentions, paragraphs 31 and 32.

[56] The native title party relied upon two series of Affidavits of Carol Dawn Bissett, Viola Louisa Brown and Vernon James Ridgeway: the first series dated August 2000 and the second July 2001.  Ms Bissett in her Affidavit of 24 July 2001 deposed as follows (at paragraph 11):

“The mining of the Claim Area will alter the land in every fundamental respect affecting the enjoyment by the Native Title Party of its registered native title rights and interests.  Because the land will have been destroyed spiritually the right to possess, to occupy, to be present on, to use and enjoy, to travel through, to live on, to camp on, to carry out traditional ceremonies and activities on the land will have been destroyed.  I do not take and could never take anyone onto the mined area in the Claim Area to conduct a ceremony because a traditional ceremony is of its very nature connected to this spirituality of the land.”

With the exception of the last sentence both Ms Brown and Mr Ridgeway also made identical statements in their Affidavits.  All three Applicants also depose that mining will impact on the registered rights and interests with respect to speaking for the area (Affidavit of Carol Dawn Bissett 24 July 2001 at paragraph 12), gathering, using, disposing and managing plants (paragraph 13) and minerals (paragraph 14) as well as managing animals (paragraph 15).

[57] The government party contended that there was an unclear nexus between the registered native title rights and the land covered by ML152.  It was said that the native title party in its claimant application differentiates between Maaiangal traditional country and the land claimed. Moreover the land claimed extends to the foredunes and the high water mark, whereas ML 152 does not cover these areas. On the landward side the native title claim extends to vegetated areas, whereas ML 152 does not.  It was also claimed that when the native title party refers broadly to the land claimed or to traditional country it cannot be assumed that this refers to the land covered by ML 152.  Some of the evidence, it was suggested clearly indicates its remoteness to the proposed tenement while in some cases this is implicit.  Other evidence, it was said, is unclear as to its location in relation to ML 152.

[58] Basically the gravamen of the government party’s contention was that the native title party has largely provided general evidence which does not sufficiently differentiate between the area covered by ML 152 and the larger traditional country of the native title party.

In response the native title party said: “The Mining Area is an integral part of the Claim Area which in turn is an integral part of the Traditional Area” – Submissions of the native title party, 15 August 2001 at paragraph 3.

The government party’s contention is well made.

[59] The Affidavits submitted by Ms Bissett, Ms Brown and Mr Ridgeway do make reference to a number of geographical locations not within the area of ML 152 including: Soldiers Point, Salamander Bay, Karuah, Forster, Carrington, Tahlee, Kurrara Mountain, Port Stephens, Middle Island (Boandabar), Cabbage Tree Island, Broughton Island, Fame Cove, Fenninghams Island and Pipe Clay Creek.

For example, in this regard, the government party correctly points out that the evidence given by the native title party on carrying out ceremonies concerns ceremonies conducted outside the area of the proposed tenement.  While Ms Bissett says that she would not be able to take people onto the mined area to conduct ceremonies (a matter which is not addressed in the Affidavits of either Ms Brown or Mr Ridgeway), there is no evidence of any ceremonies that actually occur on the claimed area.  When weighing up the effect of the future act on the enjoyment of rights and interests, it is important to note that in the case of ceremonies there is no material before the Tribunal that the doing of the future act will affect in a practical and significant sense any actual current practices.  This was not seriously disputed by the native title party – Submissions of native title party, 15 August 2001 at paragraph 15.

[60] Moreover some of the activities described in the Affidavits are wholly or partially incompatible with the fact that the area proposed to be mined is comprised wholly of sand dunes (e.g. gathering iron bark, plants, fruits, vegetables, bush food, shelter etc). The EIS contains the following description of the proposed mining area (5.8.2): “The mobile dune area proposed for mining is almost completely devoid of vegetation, with the existing vegetation patches consisting mainly of bitou bush and spinifex.  A small number (approximately 6) of scattered Banksia integrifolia also occur in the transgressive dunes to the west of the wetland containing the shrub wetland community. The constant mobility and evolution of the transgressive dune area generally limits the potential for the establishment of vegetation.”

There is no specific evidence before the Tribunal as to how the native title party actually enjoys its registered rights with respect to gathering, managing etc either plants or minerals on the area of the proposed tenement. The government party made this submission, and the native title party’s response (as it was to similar contentions with respect to camping, hunting, ceremonies and travelling on the proposed tenement) was the same as that outlined in [58].

This is not to say that the native title party does not carry out these activities on the area of the proposed tenement.  In that regard the Tribunal accepts that camping does occur – Affidavit of Viola Louisa Brown of 2 August 2000 at paragraph  - and does not accept the government party’s dismissive contentions on this point.  However, there is no solid material submitted to this Inquiry to demonstrate that the enjoyment of a number of the registered rights and interests will be deleteriously impacted upon by the proposed act due to the fact that it is not clear what the nature of their enjoyment by the native title party actually is.

In comparison there is evidence of how certain registered rights and interest may be enjoyed on the area of the proposed tenement, in particular the right to speak for the land. This is dealt with in the context of section 39(1)(b).

[61] In ascertaining the impact of a future act on an area claimed by a native title party, the native title party should address what native title rights enjoyed specifically on the claimed area will be disturbed.  It does not assist the Tribunal in conducting its inquiry for a native title party to adduce material aimed at demonstrating connection with wider traditional country, which does not address how rights and interests being enjoyed in the area of the proposed tenement will be affected. The task of the Tribunal in weighing up the effects specified in paragraph 39 (1)(a)(i) is rendered that much more difficult when much of the native title party’s evidence, while important from a wider perspective, does not, nonetheless, focus specifically on registered rights enjoyed now and in the specific area of the proposed tenement.  In these circumstances inferences can be drawn that the proposed act will have, even from a worst case scenario, an insignificant impact on the enjoyment of the bulk of the registered native title rights of the Maaiangal Clan.

In reaching this conclusion the Tribunal has not determined that the proposed future act may not have an impact on the registered rights and interests of the native title party. That is not a line of inquiry required by the Act. Rather the focus of section 39(1)(a)(i) is directed towards determining the effect of the future act on the enjoyment of registered rights and interests. The preponderance of material before the Tribunal fails to illustrate how the enjoyment by the native title party of the bulk of its registered rights and interests in the area of the proposed tenement will be effected in an immediate and real manner by the proposed future act.

[62] The government party also contended (at paragraph 8(a) of its Submissions of 9 August 2001) that references by the native title party to fishing and gathering produce from the seashore were not amongst the registered native title rights in respect of any part of the claimed land.  The government party also drew the Tribunal’s attention to the fact that the native title determination application relates to land bounded by the high-water mark, and that it was therefore questionable whether such rights could be viably exercised within the confines of the land claimed.  The grantee party in its Statement of Contentions  (at paragraph 18) claimed that access to the beach and the frontal dune area would not be restricted by dredging.  It also said that access to area of the proposed tenement would not be affected other than for a maximum of 4 hectares at any one period of time.

[63] The native title party has not specifically responded to the government party’s contention. However, I am not persuaded by the contention of the government party. The registered rights include a right to carry on traditional activities, a right to travel through the area, a right to use and enjoy the area and a right to hunt for animals on the area. The native title party is not required to outline with respect to each and every right and interest claimed the manner in which they are exercised. The native title party has quite properly put before the Tribunal material which explains the content of those traditional activities which form part of its registered rights and interests. Whether those activities are sustainable or not are matters to be determined on another occasion and in another forum. For the purposes of this future act determination, however, it should be noted that I have rejected the narrow interpretation suggested by the government party to the registered rights and interests of the native title party. I have also taken into account in weighing the impact of the future act on registered rights and interests under section 39(1)(a)(i) that there are fishing and seafood gathering activities that may be impacted.
I do so by applying a beneficial interpretation, although it needs to be appreciated, having regard to the geographical extent of the proposed tenement, that sea related activities by the native title party are unlikely to be affected in any appreciable manner.

Way of life, culture and traditions – section 39(1)(a)(ii)

[64] No specific submissions were made by the native title party with respect to section 39(1)(a)(ii), apart from references the material provided in the Affidavits already referred to.

Viola Louisa Brown in her Affidavit of 2 August 2000 (paragraph 57) deposes that some members of her family still collect seafood from the claimed area, such as fish and pipis, and that her family also camp, swim and skin dive on the claimed area.  Vernon James Ridgeway in his Affidavit of 2 August 2000 also deposes to still fishing and catching crabs in this area (at paragraphs 44 and 46). Carol Dawn Bissett in her Affidavit of 2 August 2000 deposes that Stockton Bight (presumably including the area of the proposed tenement) is visited often by herself and other members of her ngura (clan).  Fishing, shell collecting, swimming or visiting heritage sites are mentioned as activities that occur (at paragraph 59).

[65] The government party pointed out in its Statement of Contentions (paragraph 36) that mining had previously occurred on part of the land claimed by the applicants (ML 1414), that there was no evidence before the Tribunal that previous mineral sand mining had detrimentally affected the way of life, culture or traditions of the native title party.  It was also contended (at paragraph 37) that the way of life etc of the native title party had accommodated the concurrent use of the land by non-native title parties. The government party’s conclusion was that the prospect of detriment to the way of life etc of the native title party by the future act was, on the material available, not demonstrated to be significant.

In its Submissions of 9 August 2001, the government party contended that the evidence produced did not address the way of life of the native title party. It was said that there was no clear evidence of the extent of contact or the cohesion of the group, or the extent to which traditional practices are followed or recognised in the wider group.  Activities of more recent times failed to demonstrate the frequency of the events or the social context in which the activity falls (paragraph 9).

Finally the government party argued that because the evidence presented to the Tribunal was limited to the three Applicants of N6009/00 that this “leaves room for doubt as to whether the beliefs and aspirations and, thus, the way of life culture and traditions and the social and economic structures are common across the wider group.”  - (at paragraph 10).  In addition the government party sought to suggest that there were differences between the applicants in the material deposed to in their respective Affidavits.  As examples it was said that while Ms Bissett and Ms Brown deposed to feelings of pain and emptiness in mined areas, Mr Ridgeway did not.  Ms Bissett deposed that she could not take anybody into a mined area to conduct a ceremony but neither Ms Brown nor Mr Ridgeway made such a statement.  Finally it was said that while Ms Bissett and Brown describe businesses they could or might conduct in connection with the claimed area, Mr Ridgeway makes no mention of them.

[66] I will deal firstly with the suggestion that because the evidence supplied to the Tribunal was limited to the three Applicants that this could leave room for doubt as to whether the beliefs and aspirations expressed were common to the wider group.

[67] Pursuant to section 62A of the Act, the applicant (which may be one or more persons) may deal with all matters arising under the Act in relation to a native title determination application. As registered native title claimants the native title party is entitled to negotiate with the government party and the grantee party on the proposed future act. In short, the Act contemplates that in an inquiry such as this it is open (and sometimes desirable) for the named applicants to speak on behalf of the claim group and to provide evidence (when they are able to do so). In many instances this may not be possible, particularly where the applicants are of a younger generation and the best evidence can only be supplied by elders or other members of the claim group who hold information pertaining to traditional laws and customs. Nevertheless the Form 1 (Native Title Determination Application) makes it clear that the native title claim group are the descendants of George and Charlotte Ridgeway. The applicants are three of the nine children of George and Charlotte Ridgeway. There has been nothing put before me other than the bald assertion of the government party that the applicants should not be able to speak on behalf of the claim group or that the views and aspirations expressed were unrepresentative of the wider claim group. If that was the case then the government party could have produced some material to assist the Tribunal. In fact no such evidence was adduced.

[68] The other matter raised by the government party was the alleged differences between the Affidavits. In fact the examples given by the government party disclose no such differences.  What the government party has highlighted is that the applicants have supplied Affidavits that are broadly consistent but not identical.  The applicants do not contradict each other nor do they repeat in a formulaic and rote fashion the same evidence in three identical Affidavits.  The Tribunal would have been concerned had that been the case, but it clearly is not.

[69] The fact that there is a lack of uniformity of evidence between members of a native title claim group as to the nature of their rights and interests is not necessarily a matter of concern – see Hayes v Northern Territory (1999) 97 FCR 32 at 45. Nor is it surprising, let alone a matter of concern, that evidence of native title rights is often focused on a small group of senior members of a claimant group with extensive knowledge of the traditions of the Aboriginal people in that area – see Yarmirr v Northern Territory (1998) 82 FCR 533 at 560. Also it is not uncommon for some practices to be known only by male or female members of a claim group, such that there could be differences in the information given according to gender or other circumstances – see Ward v Western Australia (1998) 159 ALR 483 at 525-526. It also has to be recognised that while a native title holder can depose to the current manifestation of traditional laws and customs, the traditional nature of those laws and customs can only be proved by native title holders recounting what others, usually elderly or deceased elders, have told them. In short it is in the nature of hearsay evidence – Wandarang People v Northern Territory (2000) 104 FCR 380 at 385. The Federal Court has recognised that in some cases only one person may know the particular tradition, observance, custom or belief. Such customs, beliefs etc may only be known to a few people – or even a single person – especially in the context of urbanisation. As von Doussa J has pointed out: “the traditions controlling the transmission of traditional information may result in that information not being passed on until the old age of the person possessing it.  In these circumstances it is not difficult to envisage that where information is held only by a small group, that sudden illness or tragedy or other circumstances may reduce the number to one.” – Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 at [275].

[70] The reality is that the Affidavits supplied by the applicants in this matter are consistent.  They are very similar.  They do not duplicate one another, although there are very great similarities between them.  There are no direct inconsistencies.  I have formed the view that rather than weakening the case of the native title party, the fact that the deponents of these Affidavits have sometimes focussed on matters of particular concern to them, is in fact a matter that goes favourably to their credibility.

[71] I have formed the view that there is not sufficient material before the Tribunal to determine whether sand mining on the proposed tenement would have a significant impact on the way of life of the native title party. There is no evidence that there is any recent history of Aboriginal persons living on the claimed area, nor is there evidence that the frequency and length of the visits of members of the native title party to the area of the proposed tenement are such that the future act would pose a significant interruption to the way of life of these persons.

[72] There is evidence that the traditional law and custom of the native title party which would be violated if the land was disturbed as proposed, would in turn impact on the culture and traditions of the native title party. The term used in the Affidavits alluded to earlier, said that mineral sand mining will make the country “sick”, and this would in turn cause the native title party to lose its oneness with the land and thereby its culture and traditions.  The mined area would lose spiritual meaning for the native title party; and it would be a place where two of the deponents said they would feel overwhelmed by pain and emptiness (Affidavit of Viola Louisa Brown, 24 July 2001 at paragraph 10, Affidavit of Vernon James Ridgeway of 24 July, 2001 at paragraph 10). The remaining Applicant said that when she visited areas of Stockton Bight that are presently mined by the grantee party she feels “the wounding of the land as a spiritual emptiness and a physical pain”  - Affidavit of Carol Dawn Bissett, 24 July 2001 at paragraph 10.

One matter that has been raised in this context is the impact that mineral sand mining may have on Aboriginal burial sites.  Ms Bissett deposed:

“The proposed mining of the Claim Area will sift every grain of sand to a very considerable depth and will destroy every burial site and every evidence of the occupation of the Claim Area by our ancestors.  It will desecrate our ancestors’ burial grounds.  The burials are a central part of the Native Title Party’s ritual and customs which include a belief in reincarnation.  The remains uncovered by mining could be mine from a previous life.”

Affidavit of Carol Dawn Bissett, 24 July 2001 at paragraph 9

In addition Viola Louisa Brown deposed that human bones (two adults and one child, with one of these 6,000 years old) had been located along Stockton Bight. She indicated that some burial sites were connected with middens and that all sites located had been “around the ocean shore of Port Stephens harbour” – Affidavit of Viola Louisa Brown, 2 August 2000 at paragraph 54. Similar evidence (but not identical) evidence was also given by Mr Vernon Ridgeway – Affidavit of 2 August 2000 at paragraphs 54 and 55.

However, there is no actual evidence before the Tribunal that there are in fact any burial sites in the area of the proposed tenement.  The native title party claimed that the Aboriginal Heritage Management Plan acknowledged that the area of the proposed tenement was used for human burials - Submissions of the native title party, 15 August 2001, at paragraph 8. Yet a close reading of this document does not disclose any such evidence. In fact when discussing the current mineral sand mining operations, which involves dredging 1,300 tonnes of sand per hour the following comments are made (page 15):

The material that may be collected on the oversize screen of the dredge includes shell, gravel (former swash deposits), timber (buried tree stumps), lumps of concretionary pan from the soil B horizon, and potentially cultural material that could include midden shell, flaked stone, animal bone or human burials…To date no cultural heritage material has been identified in any of the samples collected from the oversize screens.”

Later the additional comments are made (at page 17):

“The presence of bone suspected of being of human origin.  Whilst there is a low probability that bone would survive the leaching conditions in the dune soil profile on the western side of the dredge path, the presence of bone in the cultural context would be highly significant.  If any bone suspected of being of human origin is observed in the advancing face of the dredge pond, or on the oversize screens, dredging will stop immediately, and the Land Council and NPWS notified so that the material can be properly assessed.  In the case of suspected human bone, the NSW Police Service must also be notified.”

Whilst the Tribunal accepts the importance and cultural significance of burial sites, and also accepts that Aboriginal burial sites may be located on Stockton Bight, nevertheless there is no material before the Tribunal of any actual burial sites on the area of the proposed tenement. In fact from the dredging activity connected with mineral sand mining by the grantee party over the past number of years, it would appear that there has been no evidence of burial sites in the immediate area of the proposed mineral sand mining. While evidence of burial sites would be of importance in weighing up how the culture and the traditions of the native title party would be impacted by the proposed future act, there is no direct and real evidence that there are in fact any burial sites that will be disturbed the proposed mineral sand mining.

[73] There is material before me to the effect that the native title party’s culture and traditions may be effected by the future act. This is a factor that I have taken into account in reaching my determination.  I do not accept the blanket rejection of the impact of mineral sand mining on the native title party’s culture as suggested by the government party. Nor, conversely, is there any actual evidence of the existence of burial sites in the area of the proposed tenement. As such mining of this area will not have the particularly deleterious cultural implications for the native title party that may otherwise have been demonstrated if there was evidence of burial sites in the proposed tenement.

Development of social, cultural and economic structures – section 39(1)(a)(iii)

[74] Apart from asserting at paragraph 32 of its Statement of Contentions of 24 July 2001, that the doing of the future act under the conditions of the development consent would deny to the native title party the development of its social, cultural and economic structures, the native title party did not submit evidence specific to this criterion which was not dealt with under section 39(1)(a)(i).

[75] The grantee party suggested that insofar as there was an impact under this criterion it would be favourable “arising either from the Native Title Parties’ participation as members of the Worimi Local Aboriginal Land Council in the compensation agreement with Mineral Deposits, or directly from financial contributions offered to them by Mineral Deposits as part of negotiations” – Statement of Contentions at paragraph 20.

[76] The government party suggested that the prospect of detriment to the social, cultural and economic structures of the native title party would not be, on the material available, significant. Insofar as there was an effect it would be a positive one, with employment opportunities and other economic activity arising from the continuation of mineral sand mining which offers direct and indirect benefits to local communities.  This, it was claimed, carried with it potentially beneficial contributions to the social and economic structures of the native title party – Statement of Contentions at paragraphs 38 and 39.

“I do not think the obligation in s. 111, that is to take into account ‘to the fullest extent possible all matters affecting or likely to affect the environment’ imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower etc. In my opinion there must be imported into the statutory obligation a concept of reasonableness. Clearly enough, the legislature wished to eliminate the possibility of a superficial, subjective or non-informative environmental impact statement and any statement meeting that description would not comply with the provisions of the Act, with the result that the final decision would be a nullity. But, in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision-maker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standard required by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations. In matters of scientific assessment it must be doubtful whether an environmental impact statement, as a matter of practical reality, would ever address every aspect of the problem. There will always be some expert prepared to deny adequacy of treatment to it and point to its shortcomings or deficiencies.”

The native title party referred the Tribunal to the decision of Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (albeit not with respect to the EIS issue). Her Honour (at 31) outlined what is required of an EIS in conformity with the decisions of Cripps J. Her Honour in fact had before her an EIS which was described as “far from perfect”,  which had omitted topics and matters of detail. Nonetheless she did not find that it had not complied with the legislative requirements. It was “sufficient to permit public participation in the process, as in fact occurred.” (at 32).

[146] There is a large body of New South Wales judicial dicta on the EIS process. I have set out the above principles not with the object of making a determination which is outside the jurisdiction of this Tribunal. Rather, this has been done to highlight that whatever the merits of the native title party’s case about the adequacy of  the EIS may be, this is not the forum for it to be raised in the way that it has.  If the EIS was defective, on whatever basis, there were (and may still be) avenues open to the native title party to explore. 

[147] The arguments raised by the native title party, bar one, fall outside what Parliament intended that this administrative tribunal would do. This Tribunal has absolutely no role in second guessing State and Territory Courts properly exercising their functions under State and Territory environmental and planning legislation. This is not a Tribunal charged with traversing the highways and byways of New South Wales environmental and planning law. Our only charter in this aspect of our legislative role is to determine if a future act should proceed, and in that regard weigh the various criteria outlined in the Act. At all times our charter is linked to native title: native title claims do not of themselves provide a platform for this Tribunal to trespass into the jurisdiction of other bodies and courts.
[148] The exception though, is a fundamental one.  At its heart, what I understand the native title party was arguing was that if the EIS is so flawed that the development consent could not be made, and if there was no development consent there could be no decision to grant a mining lease, therefore there is no future act.  In short it appears that the native title party was raising a jurisdictional question.

[149] If a serious jurisdictional issue is raised the Tribunal is obliged to consider it. The party raising the objection has an obligation to provide some evidence to substantiate the jurisdictional objection – Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors WF00/2, Deputy President Sumner, Members Sosso and Stuckey-Clarke, 8 December 2000. In this matter I have no material before me that clearly and manifestly demonstrates either that the EIS is invalid or that the development consent was improperly given.  It must be conceded that the native title party has raised a number of serious objections about the EIS and the consultation process that led to it.  In no way am I depreciating the concerns raised, and for that very reason I have set out the native title party’s contentions on this point in full.  However these contentions stand or fall on two issues: was either or both  the EIS and the development consent invalid?

[150] The Tribunal has carefully considered the available New South Wales judicial pronouncements on the basis for invalidating an EIS including: Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 (Land and Environment Court), Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 (Court of Appeal), Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353 (Court of Appeal), Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (Land and Environment Court) and Helman v Byron Shire Council (1995) 87 LGERA 349 (Court of Appeal). It is certainly not clear to the Tribunal that the EIS is invalid. That is not to say that if challenged in the appropriate forum that a Court would necessarily rule that it is valid, however that is not what this Tribunal has to decide. Unless it is manifestly clear that the EIS is invalid such that the process leading to the granting of the proposed mining tenement is a nullity, there is no basis for this Tribunal assuming that it does not have jurisdiction to make a determination pursuant to section 38. As indicated, there is certainly nothing before this Tribunal that suggests that there is unambiguously an invalid EIS underpinning the relevant development consent.
[151] The other challenge made by the native title party with respect to the alleged invalidity of the development consent was based on the principle of finality.  The native title party referred the Tribunal to Schaffer’s Case, but this was of no assistance in determining this issue.  In fact there have been a series of New South Wales decisions that establish that a development consent has to be final when it was granted, and that local authorities cannot set conditions which in reality postpone substantial matters in order that they can be resolved  in the future by other persons or bodies. In its essence it is a principle that that if a consent defers to another time, and possibly another person or body, a decision which is an important aspect of the development, then the consent does not finally determine the application – Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Malcolm v Newcastle City Council (1991) 73 LGRA 356, Scott v Wollongong City Council (1992) 75 LGRA 112 and Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64. In fact this is a principle adopted in the construction of planning statutes in other Australian jurisdictions: City of Unley v Claude Neon Ltd (1983) 32 SASR 329 and Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1986] 1 Qd R 437. The Courts either ruled that there was no consent because of lack of finality or declared a particular condition void for lack of finality – Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13. The rationale behind this rule was explained in Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17 by Stein JA as follows – at [209] – [210]:

“the principle of finality was designed to protect both the developer and the affected neighbourhood against a consent authority’s reservation of the power to alter the character of the development in some significant aspect, thereby changing the settled expectations of the consent already granted…One underlying rationale for the principle is the diminishing of participation rights of objectors heard at the time of the consent.  The principle also seeks to ensure that the decision taken to grant the consent is not undermined by later changes by the council, a nominated officer or third party, which may result in a development taking place which has not been assessed by the consent authority and which may have some important environmental effects not relevant to be assessed at the time of granting the consent.”

However the Courts have also recognised that there must be flexibility shown in applying this principle and that in each case whether the principle of finality has been breached involves questions of degree – Transport Action Group v Roads and Traffic Authority (1999) 46 NSWLR 598,

[152] The legislation was changed in 1993 and 1994 to give greater latitude to local authorities to allow for deferred commencements and conditions, inter alia, that certain aspects of a development be carried out to the satisfaction of a council or a person specified by the council (s.80A(2)).  In this instance the conditions set by the Council were made pursuant to section 80A.

[153] The native title party itself said that the development consent was arguably invalid.  In fact even based on the law as it stood prior to 1993 in New South Wales – let alone after that date – it could at least be contended in contradistinction that the development consent is arguably valid. There is no need for this Tribunal to go any further.  Certainly there is nothing on its face that would lead the Tribunal to form a view that the development consent is invalid. As the recent New South Wales Court of  Appeal decision of Winn v Director General of National Parks and Wildlife & Ors highlights, the question whether a development consent is invalid because it has breached the principle of finality, involves itself a careful weighing exercise which concedes to planning authorities some flexibility. Once again it is not to the point for a party to come before this body and argue that the development consent is arguably invalid and then assume that this Tribunal is required to second guess how the Land and Environment Court of New South Wales, having before it all relevant material and having a properly argued case presented to it, would so find. It would be an inappropriate exercise for this Tribunal, on the basis of the limited material before it, and when the validity of the development consent has not been seriously argued, to trespass into the substantive jurisdiction of a properly constituted Court of a State of the Commonwealth.

[154] The native title party raised a number of issues about the EIS and subsidiary documents (e.g. the Aboriginal Heritage Management Plan).  Some of the concerns raised, in this Tribunal’s opinion, are valid.  In particular the process of consultation with indigenous persons was less than perfect.  One matter warranting comment in this regard was the failure of the author of the Aboriginal Heritage Management Plan to consult with the native title party even though at the time the Plan was being prepared N6009/00 had been registered by the Tribunal for approximately 6 months.  It would appear that consultation was largely limited to the Worimi Local Aboriginal Land Council.  The native title party has rightly criticised this lack of consultation – Statement of Contentions at paragraphs 29 and 30.  As mentioned, the conclusion the Tribunal has reached about jurisdiction is not an indication that the concerns outlined by the native title party do not have merit, simply that this is not the appropriate forum to determine them.  Clearly there needs to be a greater appreciation in New South Wales about the rights that flow from registration of native title claims, particularly procedural rights.  This is a matter that the Government of New South Wales may wish to consider in terms of alerting and informing local authorities and proponents of future acts.

Compensation

[155] As explained at [11] the native title party initially submitted that if the Tribunal determine that the future act be done, that it make a determination conditional on the payment of $5 million in trust pending the outcome of the native title determination application. Subsequently the native title party resiled from its submission, reserving its right to make a claim at an appropriate time and in an appropriate forum.

[156] It is clear that the Tribunal does have the power pursuant to section 38(1) to determine that a future act be done conditioned on the payment of compensation - Evans v Western Australia (1997) 77 FCR 193 at 204-205. Such a determination is to be distinguished from a payment of compensation pursuant to a compensation application. The determination of compensation pursuant to a future act application by the Tribunal can be made “otherwise than in accordance with the procedure and criteria in Div 5” per R D Nicholson J in Evans v Western Australia at 205. However, as a matter of commonsense, the Tribunal is assisted by those principles, without in any sense being rigidly bound to follow them – see, e.g. Western Australia v Thomas (1996) 133 FLR 124 at 189.

[157] Normally a determination conditioned on the payment of compensation would require that the money be paid into trust under section 41(3) and dealt with under section 52. However, as I read the Act there is no limitation on the Tribunal making a determination conditioned on the payment of money to a native title party other than into trust, provided that it does not infringe section 38(2). Such a scenario is not necessarily limited to a post native title determination time scale.

[158] In many cases there are a number of factors that properly inhibit the Tribunal imposing a condition for the payment of money into trust when there has not been a final determination of native title.  It should be noted in this matter that many of those factors were not present. In this matter the exact nature of the mining operations was clear, the Tribunal was not presented with a scenario where the extent of the future mining operations was obscure, or just how the mining would affect the lands in question.  This is an extension of an existing operation over unique terrain. There are no overlapping native title claims which compound the situation.  The impact on the registered native title rights and interests is capable of being ascertained.  So if the native title party had not resiled from presenting any contentions to this Tribunal it would have been open for the Tribunal to have considered making an order that an amount of money be paid into trust and dealt with in accordance with section 52.

[159] It should be noted that the government party argued that the amount of compensation sought ($5 million) could well exceed the amount of royalties payable and was out of step with the similar compensable interest test set out in section 240. Compensation payable to a freehold landowner subject to a lease under the Mining Act 1992 is not comparable to royalties that might become payable to the State. It should be noted that the government party did not point out in its arguments that the Tribunal has previously determined that it is entitled, but not obliged, when calculating compensation to have regard to the similar compensable interest test - Western Australia v Marjorie May Strickland & Ors WF97/4, Hon C J Sumner, 20 February 1998.  Certain other arguments were also raised, but suffice it to say the contentions of the government party have some weight, and in these circumstances it is not appropriate for the Tribunal to make any determination conditioned on the payment of compensation into trust.

Performance guarantees under the Mining Act 1992

[160] Section 70 of the Mining Act 1992 enables the Minister to impose conditions when granting a mining lease. In particular section 70(2)(a) empowers the Minister to impose a condition requiring the holder of a mining lease to give and maintain security, in such amount and form as the Minister may determine, for the fulfillment of the obligations arising under the Mining Act in respect of the lease.

[161] The native title party contended that the Tribunal should take into account the fact that the grantee party has allegedly “little substance”, it having a paid up capital of only $100. It was contended that this “gives rise to doubt that the Grantee Party could be made accountable for any breach of the conditions of Development Consent or conditions under the mining lease should mining proceed.  There is no provision in the draft lease conditions for any bond to cover the breach of any other lease condition or any condition of the Development Consent especially for the restoration of the Mining Area.” – Statement of Contentions at paragraph 42.

[162] The grantee party submitted a copy of the Security Bond (No CI0037478-03) dated 20 January 1999 provided to the government party with respect to Mining Lease No 1413 and 1414. Under the bond, GIO Insurance Ltd unconditionally undertook to pay on demand any sum or sums from time to time demanded by the Minister to a maximum aggregate sum of $500,000. This bond was accepted by the Minister as the security required for the grantee party to comply with its requirements under section 70(2)(a).

[163] The amount of security required depends on a case by case assessment.   However, the government party filed an article published in the internal publication of the Department of Mineral Resources in 1998 entitled Security Deposits for Mining Titles which gives an explanation of the policy adopted by the Department.  Relevant extracts are set out below:

“The amount held under a security deposit must be based on the cost to the Department to complete full rehabilitation of all disturbance on site…The level of security is subject to periodic review.  Any amendment will be based on the area of the land to be disturbed and the types of disturbance anticipated during the next review period, compared with the amount and type of rehabilitation conducted over the preceding period.  This ensures that the financial burden on the titleholder is commensurate with the amount of work required, and can be increased or decreased progressively as the mine develops and matures…..

When a new mining title is granted the security required to be lodged prior to mining must be sufficient to rehabilitate adequately all disturbance proposed up to the first review period.  Security deposits calculated for mining leases reflect the maximum financial liability for rehabilitation of the approved mining operations at a mine.

The setting of the level of security must be seen to be fair, administratively efficient and transparent.  The derivation of the security needs to be reproducible.  This should be calculable from data included in an operation or management plan for the mine site.  A calculation process has been developed that incorporates current data on actual rehabilitation and earthmoving costs for varying climatic regions and topographies, and relates these to the amount and type of disturbance.

If a company is not sufficiently capitalized to be able to afford a realistic security, then it must be considered that the risk to the environment, coupled with the financial risk to the State, will be unacceptable.  In such cases, the title will not generally be granted.”

[164] Clause 23 of the draft conditions for Mining Lease 152 requires a yet to be determined sum to be applied as security for ensuring the fulfillment by the grantee party of its obligations under the lease.

[165] The government party has indicated that the amount of security has not yet been assessed, but it nonetheless submits that it would be reasonable for the Tribunal to expect that the amount to be required will be a sum that will give effect to the purpose of section 70(2)(a). It would have been preferable if the government party had indicated to the Tribunal exactly what sum was being considered, rather than argue that the Tribunal should accept that previous practices will again be duplicated and that invariably an appropriate security sum will be set.

[166] While this is not the most satisfactory way to proceed (and it is hoped that if there are further determinations of mining lease future acts in this State the government party provides more detailed evidence), nevertheless it is clear that based on past practice, both generally, and specifically with respect to the current operations of the grantee party at Stockton Bight, the government party has in place a regime for ensuring that appropriate security is provided.  There is no reason to believe based on the quite detailed procedures in place for calculating security deposits and the fact that the government party has assured the Tribunal (based on the draft mining lease conditions) that an appropriate security will be put in place in this instance, that not only will a security deposit be obtained, but also that the nature of the security and the quantum will be of a nature to ensure that the policies of the Department of Mineral Resources outlined above can be effectuated.

Ownership of minerals

[167] The native title party in its Statement of Contentions re-iterated that it did not claim ownership of minerals in the claim area that are owned by the Crown, but nevertheless disputed that the minerals in the area were owned by the Crown. The Tribunal was referred to correspondence forwarded to the grantee party on 19 January 2001 by Mr John Whitehouse of Minter Ellison and a letter dated 27 March 2001 from Trevor Dunn Solicitors to the grantee party.  Both letters deal in a comprehensive manner with the issue on the state of the law in New South Wales on the ownership of minerals.

[168] The government party argued that the native title rights and interests claimed do not include a right to ownership of minerals – Submissions of the Government Party at paragraph 44.  In fact this is not strictly accurate. While ownership per se has not been claimed, the rights registered include a right to gather and use minerals on the area (2(k)) and a right to manage minerals on the area (2(l)). Native title rights and interests are not claimed in respect of minerals wholly owned by the Crown (6(b)). This of course then gets back to the issue of what exactly the Crown does own in New South Wales.

[169] Nevertheless after the native title party lodged its Statement of Contentions it determined not to proceed with its submission with respect to compensation.  The issue of the ownership of minerals would have potentially been an important issue were compensation a live matter before the Tribunal. As the native title party is not seeking a compensation order, there is no need for the Tribunal to make a determination on this issue.

Conclusion

[170] In making a determination pursuant to section 38 the Tribunal is required to carefully consider and weigh up the criteria set out in section 39. This is not an easy task. It has been noted that the Tribunal must “take into account quite diverse and what may sometimes be conflicting interests” – Western Australia v Thomas at 167. It is clear in this matter there are divergent views and aspirations between the parties that cannot be bridged.  Moreover the differences of opinion transcend purely economic concerns (although they are present).  As with native title issues generally, there is at the core of this difference, divergence on how the land in question is seen.  To the government and grantee parties it amounts to an economic resource that should be mined subject to environmental and other concerns being addressed.  To the native title party the land is revered as mother, and the native title party does not argue that the land belongs to it, rather that it belongs to the land.

[171] The evidence before the Tribunal is the proposed tenement comprises land which has been described as being of national significance.  From the view that was undertaken it is clear that it is an area of breathtaking beauty which needs to be carefully managed. It is also clear that the native title party has deeply held views about how the land should be managed which are incompatible with the area being mined for mineral sands, whatever conditions the State of New South Wales and relevant local government and planning authorities may impose.

[172] I have not dealt in this determination with all of the evidence submitted to the Tribunal, but I have taken into account all material before the Tribunal.

[173] There was evidence of the exercise of the registered native title rights and interests in the area of the proposed tenement, but much of the material presented related to areas outside not only the proposed tenement but also the claimed area.  I am not satisfied that the physical manifestations of native title rights and interests will be impacted or impeded in any significant fashion by the operations of the grantee party.

[174] I am not satisfied however, that mineral sand mining of the area of the proposed tenement will not have a deleterious impact on the culture of the native title party.

[175] There was also evidence before the Tribunal that the proposed extension of mineral sand mining has been subjected to a rigorous review process at both local and State government level and by a range of persons and authorities. I do not accept that the EIS prepared is other than a professional document that adequately and carefully analyses the impact of the proposed development. It is not the role of this Tribunal to engage in a merit based review of environmental and planning decisions, and insofar as it is necessary to decide, the Tribunal has formed the view that there are no manifest inadequacies in the EIS such that it could be relied upon when weighing up various criteria in section 39.

[176] The Tribunal has before it evidence of the positive economic and social impact of the existing mineral sands operations being continued.  They are not insignificant.  Also there is evidence that the indigenous community, through the Worimi Local Aboriginal Land Council will benefit from the grant of the proposed tenement.  This was not an inquiry where there was a unanimous indigenous point of view on the granting of the tenement.  It would appear that there is a division of opinion in the indigenous community, and this manifested itself in the contradictory evidence of the native title party and the oral testimony of Mr Ridgeway. I have not seen the need to expand on this in this Determination as it has not proved necessary, but it is a matter that needs to be noted.

[177] The Tribunal is satisfied that the conditions imposed on the proposed development at a local and State level will ensure, as far as is possible, that there will be minimal impact on the registered native title rights and interests of the native title party.

[178] The Tribunal does not have an unfettered charter to evaluate whether the proposed tenement should or should not proceed. It is basically confined to considering the criteria and matters outlined in section 39. There is no doubt that much of the material produced by the native title party highlights serious issues about the development. But these are issues that presumably would have been before the proper authorities, and this is not the venue to re-ventilate them.

[179] After taking into account the various criteria and matters in section 39, the Tribunal is of the view that the proposed tenement should be granted as the impact that it will have on the regional and State economy, the local community and the local indigenous community is of such a magnitude that any impairment of the registered native title rights of the native title party is of a lesser dimension. The Tribunal would have been prepared to impose a condition requiring the payment of money into trust had material been put before it and had the native title party not resiled from seeking such a condition. Apart from a condition for the payment of moneys into trust, no other conditions are appropriate in this matter.

Determination

The determination of the Tribunal is that mining lease MLA 152 may be granted to Mineral Deposits (Operations) Pty Limited.

John Sosso
Member
24 September 2001