Bligh Coal Limited, Idemitsu Australia Resources Pty Ltd and Bowen Investment (Australia) Pty Ltd v Jonathon Malone & Ors on behalf of the Western Kangoulu People & Another - [2021] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Bligh Coal Limited, Idemitsu Australia Resources Pty Ltd and Bowen Investment (Australia) Pty Ltd v Jonathon Malone & Ors on behalf of the Western Kangoulu People & Another [2021] NNTTA 19 (21 May 2021)

Application No:

QF2020/0003

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Jonathon Malone & Ors on behalf of the Western Kangoulu People (QC2013/002)

(native title party)

- and -

Bligh Coal Limited, Idemitsu Australia Resources Pty Ltd & Bowen Investments (Australia) Pty Ltd

(grantee party)

- and -

State of Queensland

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	The Hon J A Dowsett AM, QC
Place:	Brisbane
Date:	21 May 2021

Catchwords:

Native Title – future act determination - determination that the act may be done – grantee party proposes an ‘extension project’ of current underground bord and pillar operation – no aboriginal communities situated on or near the site of the proposed mining lease – previous interference with the area subject to the proposed mining lease – grantee party asserts limited additional surface disturbance – relevance of Aboriginal Cultural Heritage Act (Qld) – cultural heritage management plan - meaning of native title agreement under the Aboriginal Cultural Heritage Act (Qld) –– relevance of existing or proposed cultural heritage management agreements – consideration under s 39 of Native Title Act – loss of access to the surface area subject to the mining lease – interests, proposals, opinions or wishes of the native title applicant, consideration of economic and social benefits of the proposed act.

Legislation:

Aboriginal Cultural Heritage Act 2003 (Qld) ss 86, 87

Environmental Protection Act 1994 (Qld)

Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

Mineral Resources Act 1989 (Qld) ss 181, 224, 226A, 403

Native Title Act 1993 (Cth) ss 29, 31, 35, 38, 39, 61, 190

Representative of the native title party:

David Knobel, p & e Law

Representative of the grantee party:

Holly Stjernqvist, McCullough Robertson

Representatives of the Government party:

Kate Marchesi, Crown Law
Julie Hookey, Department of Resources

REASONS FOR DETERMINATION

THE NATIVE TITLE DETERMINATION APPLICATION

On 9 May 2012, an application for a native title determination (the "application") was filed on behalf of the Western Kangoulu People (the "native title claim group"). The persons presently comprising the applicant (the "native title applicant") are:
·Jonathon Malone;
·Hedley Henningsen;
·Cynthia Broome; and
·Karen Broome.
The application is made pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”). The area claimed lies to the west of Blackwater. It includes and surrounds the town of Emerald. The claim area is roughly 120 kms from north to south, and east to west. It lies in an area which is closely associated with coal mining. The native title claim group is described as follows:
The group of persons claiming to hold the common or group rights comprising the native title is the Western Kangoulu People.
A person is a Western Kangoulu person if and only if the other Western Kangoulu People recognise that he or she is biologically descended from a person who they recognise as a Western Kangoulu ancestor, including the following deceased persons:
·Polly aka Polly Brown aka Polly McAvoy;
·Joh “Jack” Bradley;
·Hanny of Emerald;
·Nannie, mother of Nelly Roberts;
·Annie/Nanny Duggan and Ned Duggan.
In schedule E to the application, the native title applicant claims entitlement to:
(a)access, be present on, move about on and travel over the application area;
(b)camp on the application area and, for that purpose, erect temporary shelters on the application area;
(c)take (including by hunting and gathering) and use traditional natural resources from the application area for personal, domestic and no-commercial communal purpose;
(d)… assemble and conduct religious and spiritual activities and ceremonies on the application area;
(e)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm;
(f)teach on the application area the physical and spiritual attributes of the application area;
(g)light fires on the application area for traditional purposes and in accordance with traditional law and custom;
(h)be buried on the application area in accordance with traditional law and custom;
(i)hunt, fish, travel in or on, and gather from, the water for personal, domestic and non-commercial communal purposes; and
(j)take and use the water for personal, domestic and non-commercial communal purposes.
On 13 June 2013, pursuant to s 190 of the Native Title Act, the native title claim was registered on the Register of Native Title Claims.

THE PROPOSED FUTURE ACT

Pursuant to a joint venture agreement, Bligh Coal Ltd (“Bligh”), Idemitsu Australia Resources Pty Ltd (“Idemitsu”) and Bowen Investments Pty Ltd (“Bowen”) (collectively the “joint venturers”) own a mine described as the Ensham mine. The mine lies within the claim area. Idemitsu holds a majority interest in the joint venture. Ensham Resources Pty Ltd (“Ensham Resources”), a company owned by Indemitsu, operates the Ensham mine. The mine is located on Mining Leases 70326, 7460, 70049, 7459, 70366, 70367 and 70365. These leases accommodate open cut operations, underground bord and pillar operations and mining infrastructure areas, including underground mining equipment, a coal clearance system, a “run of mine” storage area and a coal handling plant. Idemitsu provides a variety of support services to Ensham Resources.
The joint venturers hold mineral development licence 217 (“MDL 217”). An MDL may be granted pursuant to pt 1of ch 5 of the Mineral Resources Act 1989 (Qld) (the “MR Act”). An MDL may permit a wide range of mineral exploration and associated activities. Pursuant to s 181(4)(c) of the MR Act an MDL may provide that the holder have priority in the consideration of applications for the grant of mining leases over any areas to which the MDL applies. The joint venturers propose to extend the underground operation at the Ensham mine (the “proposed extension”). They have applied for an additional mining lease, which application is presently known as ‘MLA 700061’. The relevant area lies entirely within MDL 217. Pursuant to s 29 of the Native Title Act, on 7 May 2020, the State of Queensland (the “State”) gave notice of its intention to grant MLA 700061 (the “proposed grant”). The notification date was 10 June 2020.
The nature of the proposed extension is set out in an affidavit filed by Daniel Robert Yates, dated 9 February 2021. He is the Group Manager, Health Safety Environment and Training for the joint venture and is responsible for management and oversight of all external regulatory approvals for the joint venturers’ mines, including the Ensham mine. He is also responsible for the joint venturers’ application and for obtaining the associated environmental, native title and cultural heritage approvals required in connection with it.

THE PROPOSED EXTENSION

Mr Yates provides considerable detail concerning the proposed extension. It involves the area covered by MLA 700061 within MDL 217 and other areas within existing mining leases. The area involved in the proposed extension is divided into three zones. Zone 1 is the area included in MLA 700061 within MDL 217. Zones 2 and 3 are located within existing leases and so are not the subject of the s 29 notice. In addition to the operation of the Native Title Act and the MR Act, the proposed extension will be affected by other Federal and State laws concerning environmental matters and Aboriginal cultural heritage.
Under the Environmental Protection Act 1994 (Qld) (the “EP Act”), the joint venturers hold an environmental authority, dated 3 September 2020, authorizing the mining of 12 million tonnes of coal per annum at the Ensham mine. They will have to secure amendment of such authority to incorporate MLA 700061 into it. However there will be no increase in annual production. Rather, the life of the operation will be extended.
On 6 May 2020 the joint venturers applied to the State for permission to prepare a voluntary environmental impact statement (the “EIS”) in connection with the proposed extension. On 9 June 2020, that application was granted. In preparing the EIS the joint venturers prepared a document entitled, “Ensham, Life of Mine Extension – Project Overview”. It demonstrates that the proposed extension will extend the life of the Ensham Mine by up to nine years, with coal reserves likely to last until approximately 2037.
At paras 22-48 of his affidavit, Mr Yates outlines the nature of the proposed extension. The underground bord and pillar coal mining activity will be located approximately 120 to 210 metres below the surface. On the surface, activities will include drilling, seismic operations and the creation of tracks and drilling pads. As I understand it, those activities are similar to activities presently undertaken pursuant to MDL 217. No permanent surface infrastructure will be constructed on MLA 700061. Existing underground and surface facilities, systems and equipment will be used to support the proposed extension. Any surface disturbance will be rehabilitated upon completion of the relevant mining activity. A subsidence report has been prepared. It concludes that any subsidence as a result of the proposed extension will, typically, be less than 40 millimetres in the area of MLA 700061, which level of subsidence is consistent with, “natural ground swell variation of up to 50 millimetres”, identified by the Commonwealth Department of Agriculture, Water and Environment.
Presently, Aboriginal cultural heritage matters in connection with MDL 217 are managed pursuant to a cultural heritage management agreement made in 2014, but now dated 2 October 2018 (the “2018 agreement”) between Ensham Resources and the native title applicant. The joint venturers accept that with respect to MLA 700061, it must negotiate with the applicant pursuant to s 31 of the Native Title Act. To date, the joint venturers have suggested that the parties enter into an “ancillary agreement” (the “ancillary agreement”) in a form which is in evidence. It would contain a “cultural heritage management strategy” (the “draft strategy”), being an adaptation of the 2018 agreement. The native title applicant has proposed adoption of a form of agreement which it has developed and used in connection with other proposed future acts. The joint venturers and the native title applicant have not agreed upon either proposal.
MLA 700061 includes part of the Nogoa River (that part being described herein as the “waterway”), and five parcels of land, consisting of freehold, reserve and leasehold interests. That land and the waterway are within the boundary of MDL 218. Mr Yates understands that native title has not been extinguished over the waterway, but has been extinguished over all of the land, save for:
·lot 6, which comprises a reserve of which Central Highlands Regional Council is trustee, and of which a private land holder is the registered lessee; and
·lot 7, also a reserve, of which the Central Highlands Regional Council is trustee, and over which a private company is the registered lessee.
Those parts of the land and the waterway have been for many years, and are currently being used for cropping, cattle grazing, as a waterway and for exploration pursuant to MDL 217. The land and waterway have been heavily disturbed by previous and existing pastoral activities. Mr Yates is not aware of any Aboriginal community located on, or in the vicinity of MLA 700061. For the purposes of undertaking exploration activities pursuant to MDL 217, the joint venturers have land access agreements with all relevant land holders. In connection with MLA 700061, they are presently negotiating compensation agreements with all such land holders.
At para 42 of his affidavit Mr Yates says:
As surface disturbance activities on the Land under the MLA will be limited to exploration activities (consistent with the activities already authorized under MDL 217), the existing third party uses of the land will continue as usual during the [proposed extension].
At paras 44-47 the economic benefits of the proposed extension are discussed. I see no reason to doubt that there is demonstrated economic benefit in terms of employment, continued economic activity and associated matters.
There is a substantial amount of other information contained in the various documents provided by the parties, particularly concerning environmental and Aboriginal cultural heritage. It is not necessary, at this stage, that I summarize such information. Rather, I shall deal with it, where necessary, in the context of the parties’ contentions.

JOINT VENTURERS’ CONTENTIONS

The joint venturers make this application for a determination pursuant to s 35 of the Native Title Act. They assert that searches of the Aboriginal Cultural Heritage Database and Register demonstrate that there are no Aboriginal cultural heritage sites within the area of MLA 700061. However the contents of the Database and Register are not necessarily conclusive of that matter. The Aboriginal Cultural Heritage Act 2003 (Qld) (the “ACH Act”) protects all Aboriginal cultural heritage, whether so recorded or not. At para 16 of its contentions, the joint venturers submit that the 2018 agreement, “applies to activities carried out under MDL 217 on the Land”, the “Land” being the area covered by MLA 700061. This proposition should be understood as meaning only that to date, such activities have been so conducted. The joint venturers contend that with regard to MLA 700061, the ancillary agreement and draft strategy should be adopted, the draft strategy being derived from the 2018 agreement. Alternatively, they submit that the terms of the 2018 agreement, itself, should be applied, in some adapted form, to MLA 700061. Implicit in this contention is the proposition that activities conducted on a lease granted pursuant to MDL 217 continue to be conducted in accordance with the cultural heritage arrangements applicable to MDL 217. However s 226A of the MR Act provides:
(1)This section applies if a mining lease is granted because of an application made by —
(a)the holder of a mineral development licence granted for the same area for the same mineral, whether or not at the Minister’s direction; or
(b)an eligible person with the holder’s consent.
(2)The area of the licence must be reduced by omitting the area of the mining lease.
(3)The terms of the licence may be varied as the Minister directs.
Hence it seems that should MLA 700061 be granted, all further activity on the relevant area would be conducted pursuant to the lease, and not pursuant to MDL 217.
Alternatively, the joint venturers contend that because some of the activities to be conducted on MLA 700061 are presently authorized by MDL 217, it is appropriate that the terms of the 2018 agreement at least inform any new agreement concerning MLA 700061. However the joint venturers have advanced no justification for that proposition.
Section 39 of the Native Title Act prescribes considerations which are relevant for present purposes. Concerning s 39(1), at para 19 of its contentions, the joint venturers submit that they are, “not aware of any information indicating that the grant of the MLA is likely to affect the enjoyment by the [native title party claim group] of [its] registered native title rights and interests, or the way of life of the (native title party claim group) and the development of [its] social, cultural or economic structures”. The joint venturers contend that such an effect is unlikely because of matters identified in sub-paras 20(a) to (h) of its submissions. Those matters are as follows:
(a) the nature of the activities to be undertaken on the MLA, being:
(i)activities on the surface of the Land equivalent to those activities done under MDL 217 and which are not expected to cause any additional disturbance; and
(ii)activities at a depth of 120 to 210 meters below the surface of the Land,
(b)that subsidence impacts of the [proposed extension] are expected to be consistent with natural ground swell variation …;
(c)there are appropriate cultural heritage arrangements for the Land which can be applied to the MLA to minimise any risk of harm to Aboriginal cultural heritage …;
(d)there are no Aboriginal communities situated on the MLA or in close proximity to the MLA;
(e)the limited area of the MLA for which native title may continue to exist;
(f)the limited area of the MLA in comparison to the area contained within the external boundary of the [native title applicant’s] claim;
(g)the underlying tenure of the MLA is subject to interests held by third parties, including freehold, leasehold and reserve interests, which have or may have affected the existence or enjoyment of the … registered native title rights and interests; and
(h)the area subject to the MLA has been subject to prior significant ground disturbances from the activities of third parties including cropping and grazing, which may have already affected the [native title claim group’s] enjoyment of [their] registered native title rights and interests.
The reference to “Land” is, again, to the area covered by MLA 700061.
The joint venturers also contend that the native title applicant does not assert that the land and waters, the subject of the proposed MLA, are of particular significance to the native title claim group in accordance with its traditions. Hence the joint venturers submit that the grant of MLA 700061 will not affect the enjoyment by the native title claim group of its rights and interests in connection with the area covered by MLA 700061.
As to access, the joint venturers submit that existing third party use of the land for cropping and grazing will continue during the operation of the proposed extension, on the basis that the activities to be carried out pursuant to MLA 700061 involve underground mining. On the surface, the only additional activities will be similar to those already occurring pursuant to MDL 217. The joint venturers’ present access to the land is regulated by conduct and compensation agreements with relevant land holders. They are presently negotiating further agreements in connection with MLA 700061. Hence they submit that the native title claim group’s access to the land will not be further impeded as a result of the proposed grant. At a later stage I shall return to this assertion.
It is further contended that the proposed grant will provide significant economic benefits to the regional, state and national economies, and that the grant is otherwise in the public interest. As I have said, there is no reason to doubt this assertion.
As to the criteria specified in s 39(2) of the Native Title Act, the joint venturers identify existing non-native title rights and interests and existing non-native title use in relation to relevant land and the waterway. They are presently negotiating compensation agreements with relevant land holders. As to the criteria specified in s 39(3) the joint venturers acknowledge that in Queensland, the ACH Act protects all Aboriginal cultural heritage. Concerning s 39(4) of the Native Title Act, the joint venturers assert that the parties have not yet agreed on any relevant matters.

The joint venturers then respond to certain of the applicant’s submissions. I shall deal with such responses at a later stage.

THE STATE’S CONTENTIONS

The State has provided a substantial amount of tenure information. It contends that some native title rights and interests may continue to exist in relation to parts of the land and waters covered by MLA 700061. There are numerous historical and current mining tenements within, or in the vicinity of that area. The State is not aware of any Aboriginal community located on, or within the vicinity of such area. The State’s records do not identify Aboriginal cultural heritage sites within that area. However it is not possible, definitively to state, that there are no such sites.
At paras 5.2 to 5.6 of its contentions, the State identifies various conditions which will, or may be imposed in respect of the proposed grant. Under the EP Act the joint venturers will be required to hold an environmental authority in relation to the proposed extension. I have previously mentioned the requirement that the existing authority be amended. A breach of the conditions contained in such authority would render the joint venturers liable to enforcement action. The State also notes that the ACH Act imposes a duty of care upon all persons in relation to the effective recognition, protection, and conservation of Aboriginal cultural heritage.
Concerning the criteria for decision-making contained in s 39(1) of the Native Title Act, the State contends that the proposed grant will not extinguish any existing native title. It contends that I should have regard to the following matters:
·the statutory restrictions under the MR Act and any regulations which will apply to ML700061 (if granted);
·that statutory restrictions pursuant to the EP Act which will apply to ML700061 (if granted) and the activities to be undertaken pursuant to it;
·the operation of the ACH Act;
·that there are no known Aboriginal communities situated in the relevant area;
·the limited area of ML700061, compared to the overall area claimed by the native title applicant;
·that the area covered by MLA700061 has been, or is subject to, extensive exploration and resource activities which may have already affected the native title claim group’s enjoyment of its registered native title rights and interests; and
·that the underlying tenure is subject to interests held by third parties, particularly leasehold interests which would have affected either the existence, or the enjoyment of the registered native title rights and interests over the majority of the area contained in MLA700061.
The State further contends that:
·it is not aware of any evidence which suggests that the proposed grant will adversely affect the native title claim group’s freedom of access to the relevant area or freedom to carry out rites, ceremonies or other activities thereon;
·there are no identified Aboriginal cultural heritage sites within MLA700061, nor are there any identified areas or sites of particular significance to the native title claim group;
·the proposed grant is unlikely to interfere with areas or sites of particular significance to the native title claim group, given the various statutory and regulatory obligations imposed upon the joint venturers and the proposed grant; and
·the proposed grant will confer economic benefit upon the State, local communities and Aboriginal populations.
The State submits that s 39(2) of the Native Title Act requires that I take account of existing non-native rights and interests in the relevant area, and existing usage other than by “native title parties”. The State contends that the area covered by MLA 700061 is presently subject to interests which have, wholly or partially, extinguished native title. It also points out that there are presently 45 historical, current or pending mining tenements in the vicinity of MLA 700061.
Section 39(3) of the Native Title Act provides that taking into account the effect of the Native Title Act upon areas or sites of particular significance to the native title claim group, according to its traditions, does not affect the operation of any law of the Commonwealth, a State or Territory upon the preservation or protection of those areas. The State makes no submissions concerning this provision, save to observe that the ACH Act protects all Aboriginal cultural heritage, whether or not it has been recorded in a relevant State database or register. It is not aware of any agreement to which s 39(4) might relate.

NATIVE TITLE APPLICANT’S CONTENTIONS

The native title applicant’s primary contentions are quite limited. First, it contends that the proposed grant, “will necessarily and negatively affect the [native title claim group’s] enjoyment of its registered native title rights and interests by restricting access to the lands covered by [MLA 700061] for the duration of [that lease], and by altering the sub-surface (and possibly the surface) of the land forever as a result of mining operations”. However there is virtually no attempt to support such assertions by reference to the evidence.
The native title applicant notes that, in order to give effect to the proposed extension, the joint venturers will have to comply with both Commonwealth and State environmental standards. It accepts that any determination, pursuant to s 36 of the Native Title Act, is not necessarily conditional upon such compliance. However it asserts that, nonetheless, matters related to “environmental standards” “require attention”. It seems that the Commonwealth and the State have agreed jointly to assess the proposed extension for the purposes of the EP Act and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the “EPBC Act”). The native title applicant deals with aspects of the terms of reference for the proposed EIS which will, it seems, constitute the relevant assessment. At para 7 of its contentions, the native title applicant sets out a passage from the terms of reference, largely dealing with the way in which the EIS is to be conducted, and its relationship to the ACH Act. As appears from the following paragraphs of its contentions, the native title applicant’s concern is the joint venturers’ view that the 2018 agreement offers a suitable basis for any cultural heritage management agreement relating to the grant of MLA 700061.
At paras 8 and 9 the native title applicant asserts that the 2018 agreement relates to exploration activities within MDL 217, and that it will not satisfy the requirements of the proposed EIS, primarily because it relates only to exploration activities, and not to mining activities. It further submits that it will be necessary that there be an approved cultural heritage management plan as required by part 7 of the ACH Act, and that an amended version of the 2018 agreement will not meet that requirement. For reasons set out below, this latter contention is misconceived.
The native title applicant asserts that sections 86 and 87 of the ACH Act require that there be an approved cultural heritage plan as prescribed in that legislation. Those sections provide:
86 Application of div 2
This division does not apply to a project to the extent that the project is the subject of -
(a)an existing agreement; or
(b)a native title agreement, whenever entered into, unless Aboriginal cultural heritage is expressly excluded from being subject to the agreement.
87 Cultural heritage management plan needed if EIS needed:
(1)    This section applies to a project if –
(a)under an Act other than this Act, a lease, licence, permit, approval or other authority is required for the project; and
(b)under the operation of the Act under which the Authority is required, or under the operation of another Act, an EIS is required for the project.
(2)    The entity authorised to give the authority must not give it unless –
(a)a cultural heritage management plan for the project has been developed and approved under this Act; or
(b)the authority is given subject to conditions to ensure that no excavation, construction or other activity that may cause harm to Aboriginal cultural heritage takes place for the project without the development and approval of a cultural heritage management plan for the project.
(3)    The entity authorised to give the authority has power to impose        conditions mentioned in subsection (2)(b).
(4)    The plan area for a cultural heritage management plan developed and approved for subsection (2) may be limited to the part of the project area that is the subject of the EIS.
The applicant submits that the terms of reference of the EIS require that in the absence of an agreement of the kind contemplated in s 86 of the ACH Act, there must be an approved cultural heritage management plan pursuant to Part 7 of that Act and that, for the purposes of s 86, there can be no agreement because negotiations between it and the joint venturers have failed. This proposition is based upon the assumption that s 86 requires that there be an agreement between the native title applicant and the joint venturers. However the term “native title agreement” is defined in schedule 2 to the ACH Act as follows:
native title agreement means ---
(a)an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or
(b)any of the following under part 2, division 3, subdivision 3 of the Commonwealth Native Title Act –
(i)an agreement mentioned in section 31(1)(b);
(ii)a determination of the relevant Minister under section 36A;
(iii)a determination of the arbitral body under section 38.
The joint venturers assert that if I determine, pursuant to s 38, that the proposed grant may be made, there will be a determination of the kind contemplated in s 86(b). The native title applicant, in its statement in reply, does not contradict this assertion. In my view, it is correct. Should I make a determination under s 38 of the Native Title Act, that determination will be a native title agreement for the purposes of ss 86 and 87 of the ACH Act. There will then be no requirement for a cultural heritage management plan for the purposes of part 7 of the ACH Act.
The native title applicant asserts that the joint venturers, “cannot reliably assert that there will be no subsidence from underground mining”, and that, “in no mining operation can it ever be guaranteed that there will be no subsidence as a result of substantial underground mining”. Nonetheless the native title applicant, “would have no issue with a statement that [the joint venturers] will take all reasonable steps to endeavour to minimise subsidence impacts or other surface impacts”. It may not be possible to give an absolute guarantee that there will be no subsidence as the result of underground mining in MLA 700061. However the joint venturers’ evidence indicates that any subsidence is likely to be within accepted tolerance.I see no basis for the native title applicant’s concern in this regard.
The native title applicant submits that in the absence of a cultural management heritage plan pursuant to Part 7 of the ACH Act, the native title claim group’s access to the area covered by MLA 700061 will be inhibited and, as a result, its capacity to carry out rites, ceremonies or other activities of cultural significance will also be inhibited. The native title applicant also contends that in the absence of such an agreement, it is not open to the joint venturers, “to assert with any degree of reliability”, that the proposed grant will not have any adverse or significant effect on the land or waters covered, “of the particular significance to the [native title claim group] in accordance with [its] traditions”.
I deal with these matters below.

JOINT VENTURERS’ RESPONSE

The joint venturers contend that there is no evidence to support the assertion that the native title claim group’s access to the area will be restricted or changed by the proposed grant. They assert that any surface disturbance will be minor and dealt with by way of rehabilitation. In particular, the risk and extent of subsidence is minimal. The proposed grantee will take all reasonable steps to manage such impact. The joint venturers also point to the probable extinguishment of native title over much of the area of MLA 700061, and the absence of any Aboriginal communities in that area. These considerations, and the absence of any identified Aboriginal sites in the area suggest that the criteria outlined in s 39(1)(a) will not weigh heavily in my consideration.
The joint venturers contend that in the absence of agreement between them and the native title applicant, I should “give effect to the status quo” by imposing a condition on any determination that the parties comply with the existing cultural heritage arrangements. Such “existing” arrangements seem to be the 2018 agreement and/or the ancillary agreement and draft strategy. It is difficult to see how either arrangement can be described as constituting the “status quo”. There has been no agreement as to the ancillary agreement and draft strategy. The 2018 agreement relates to MDL 217, and not to any mining activity, as opposed to exploration activity. The two categories of activity may not, in all respects, be mutually exclusive, but the MR Act clearly distinguishes between the conduct authorized by an MDL and that which may be authorized pursuant to MLA 700061. I shall discuss these provisions at a later stage.
The joint venturers submit that the draft strategy will be adequate for the relevant purpose because it is an adapted version of the 2018 agreement, drafted so as to apply to MLA 700061. Further, the ancillary agreement, of which the draft strategy is part, will confer benefits on the native title claim group. Such an approach is said to be “appropriate for the MLA” because it replicates the measures currently applying to MDL 217 under the 2018 agreement. The surface activities to be undertaken under MLA 700061 will be “consistent with” the activities undertaken under MDL 217.
These assertions are matters of opinion, which opinions are those of the joint venturers. They seem not to find favour with the native title applicant. I see little justification for imposing such opinions on the native title applicant. The joint venturers offer no real basis for doing so.
The joint venturers contend that, “the (ancillary agreement and draft strategy contain) everything reasonably required to ensure avoidance and minimization of harm to Aboriginal cultural heritage”. Again, that is a matter of opinion, unsupported by appropriate argument. The joint venturers also contend that the proposed strategy contains an undertaking to consult with the native title applicant in order to agree on:
“an appropriate variation to the [draft strategy] should any activities be proposed on (MLA 700061) other than underground coal mining and exploration (including activities of a similar surface disturbance impact) which reasonably have the potential to harm Aboriginal Cultural Heritage (which is not anticipated)”.
It is difficult to discern the underlying purpose of this proposed undertaking. Presumably, the only activities to be conducted on the relevant area are those permitted by the MR Act. I see little point in speculating about other activities. Whilst consultation will generally be helpful, agreements to agree are always problematic.
The joint venturers contend that the native title applicant has not advanced any basis for asserting that the draft strategy is inadequate, save for the contention that the 2018 agreement applies only to activities pursuant to MDL 217 and MDL 218. The joint venturers assert that this approach, “ignores the nature of the [proposed extension] and the fact that the activities to be undertaken on the surface are relevantly the same”, presumably the same as those undertaken pursuant to MDL 217. Further, the joint venturers contend that the native title applicant does not submit that underground work will, “encounter" items of Aboriginal cultural heritage, and that such occurrence would be unlikely, given the depth of the underground work. Those contentions amount to little more than assertions that, given the absence of agreement, the joint venturers’ proposal should be adopted.
The joint venturers seek a determination that the proposed grant be made, subject to conditions which address Aboriginal cultural heritage. The Tribunal invited the joint venturers to identify such proposed conditions. They responded by contending that the conditions should reflect the ancillary agreement and the draft strategy.

NATIVE TITLE APPLICANT’S STATEMENT IN REPLY

In its statement in reply, the native title applicant indicates that it neither supports nor objects to the proposed grant. However it opposes the joint venturers’ contention that the proposed grant be subject to the conditions to which I have referred. It submits that such proposal is beyond the Tribunal’s jurisdiction and should not, in any event, be adopted, “when considered in the context of the other statutory requirements to be satisfied by the [joint venturers] and the [State] before the grant of ML 700061”. The native title applicant submits that any determination be in the following form:
The determination of the Tribunal is that the act, namely the grant of Mining Lease 70006, may be done.
I do not fully understand the submission concerning the Tribunal’s jurisdiction. It is at least theoretically possible that any determination might be conditional upon compliance with the terms of a draft agreement, even if such terms had not been agreed. I could only adopt that course if I were satisfied that each provision of the ancillary agreement and draft strategy was individually justified, having regard to the Native Title Act. The native title applicant’s reference to other statutory requirements to be satisfied by the joint venturers and the State has no clear meaning. It has advanced no coherent submission concerning the relevance of such “other statutory requirements”, save for its misconceived submission concerning ss 86 and 87 of the ACH Act. In any event, I see no justification for imposing upon the native title applicant an obligation to comply, in connection with MLA 700061, with the ancillary agreement, the draft strategy or the 2018 agreement.
The native title applicant contends that I must take into account any site of particular significance to the native title claim group in accordance with its traditions. However I do not understand the applicant to have identified any such sites. Any presently unidentified sites will be protected by the ACH Act. At paras 14-18, the native title applicant contends that I should apply the relevant provisions of the Native Title Act in combination with other Commonwealth and State legislation. However that submission seems to lead nowhere. I do not understand there to be any question of inconsistency between the Native Title Act and other relevant Commonwealth or Queensland legislation. In the end, the native title applicant simply contends that the Tribunal has no “authority” unilaterally to require compliance with the ancillary agreement and the draft strategy, or the 2018 agreement. I do not propose to take that course.
I see no reason further to consider any legislation other than the Native Title Act. Any determination that the proposed grant may be made will not compel the State to do so. Should I make such a determination, it will be for the State to determine whether, having regard to other relevant legislation, it should make the grant.

OTHER MATTERS

In summary, I have already rejected:
·the native title applicant’s submission that the joint venturers should be required to develop a cultural heritage plan in accordance with Part 7 of the ACH Act; and
·the joint venturers’ contention that any determination that the proposed grant be made include a condition that they and the native title applicant comply with the ancillary agreement and the draft strategy, or the 2018 agreement.

Two other factual matters must be addressed. First, the native title applicant contends that in the absence of a cultural management plan pursuant to Part 7 of the ACH Act, the native title claim group will be deprived of access to the area of MLA 700061, including access for the purpose of conducting rites, ceremonies and other activities of cultural significance in that area. I have previously held that div 2 of Part 7 of the ACH Act does not presently apply. In any event, the native title applicant does not identify any basis for its assertion that such access will be impaired. The Tribunal invited it to make further submissions in that regard. It has not done so. I note that s 403 of the MR Act prohibits unauthorized entry to the surface of a mining lease. I have received no submissions concerning that provision. It may well impair access. However there has been no suggestion that the native title claim group has occupied or regularly accessed the surface area of MLA 70061. In particular, there is no suggestion that the native title claim group has had recourse to the area at any time since the commencement of MDL 217.
Second, the native title applicant seems to suggest that the absence of a cultural heritage management agreement will lead to adverse or significant effects upon the area covered by MLA 700061. There is no evidence which suggests any particular significance attaching to that area, or any basis for inferring that the joint venturers will not comply with their statutory obligations under the ACH Act.
I return to the question of adaptation of the 2018 agreement and the ancillary agreement and draft strategy derived from it, in connection with MLA 700061. In connection with MDL 217, the 2018 agreement facilitates the performance by the proposed grantee of “project activities”, which term is defined as follows:
Project Activities means the exploration activities carried out by the (proposed grantee):
(a)within the [2018 agreement] Area; and
(b)in accordance with the [proposed grantee’s] Tenure Rights
including for example:
(c)the removal of vegetation required for the development of:
·new access tracks
·drill pad sites, including mud pits;
·seismic lines;
·camp areas; and
(d)drilling activities.
The term “Tenure Rights” is defined as “the tenements set out at Schedule 2”, namely MDL 217 and MDL 218. MDL 217 says little or nothing about such activities. However s 181(1) of the MR Act provides:
During the currency of a mineral development licence, the holder shall carry out or cause to be carried out such activities as are specified in the licence by the Minister.
Section 181(3) of the MR Act provides:
Without in any way limiting the activities that the Minister may specify in a mineral development licence, activities leading to evaluation and economic development of an ore body by or on behalf of the holder may include:
(a)geological, geophysical and geochemical programs and other works as are reasonably necessary to evaluate the potential for development of any mineral occurrence of possible economic potential occurring in or in the area of the mineral development licence; and
(b)mining feasibility studies; and
(c)metallurgical testing; and
(d)environmental studies; and
(e)marketing studies; and
(f)engineering and design studies; and
(g)such other activities as the Minister considers appropriate.
I have previously referred to s 181(4) which provides:
During the currency of a mineral development licence ---
(a)…
(b)….
(c)the holder of the mineral development licence, subject to compliance with this Act, may have considered for grant, in priority to all other persons, any number of mineral development licences and mining leases relating to any minerals specified in the mineral development licence in respect of any area of land in the area of the mineral development licence and may enter that land for the purpose of doing all acts necessary to comply with this Act relating to an application therefor.
Clearly, an MDL authorizes exploration rather than mining. However, as previously observed, the holder of an MDL may be given priority in the grant of mining leases within the area covered by the MDL. Pursuant to s 224, a mining lease authorizes mining for minerals and other purposes, if specified in the lease. The joint venturers assert that the activities conducted pursuant to MDL 217 are analogous to those conducted pursuant to a mining lease. However they have offered no justification for such an analogy. In those circumstances, it seems most unlikely that the 2018 agreement could readily be adapted for application to mining activities. No detailed submission has been made in this regard. For similar reasons, the ancillary agreement and the draft strategy cannot be accepted, given that they are derived from the 2018 agreement. In effect I accept paras 8-11 of the native title applicant’s statement in reply.
I should say something about underground mining. The State apparently considers that when an activity involves no surface disturbance, it is generally unlikely that the activity will harm Aboriginal cultural heritage. See “Duty of Care Guidelines” dated 16 April 2004 at Part 2, para 4.1. These guidelines are prescribed pursuant to s 28(1) of the ACH Act. The term “Surface Disturbance” is defined as:
any disturbance of an area which causes a lasting impact to the land or waters during the activity or after the activity has ceased.
Paras 4.4, 4.5 and 4.6 provide:
4.4
Where an activity causes No Additional Surface Disturbance of an area it is generally unlikely that the activity will harm Aboriginal cultural heritage or could cause additional harm to Aboriginal cultural heritage to that which has already occurred, and the activity will comply with these guidelines.
4.5
In these circumstance, subject to the measures set out in paragraphs 4.7-4.11, it is reasonable and practicable for the activity to proceed without further cultural heritage assessment.
4.6
The following are examples of activities that may generally proceed under category 2:
·Cultivation of an area which is currently subject to cultivation
·Grazing cattle on an area where cattle are currently grazed
·Use and maintenance of existing roads, tracks and power lines within the existence infrastructure alignment, or other infrastructure footprint
·Use, maintenance and protection of services and utilities (such as electricity infrastructure; water or sewerage disposal) on an area immediately adjacent to where such services and utilities are currently being provided providing the activity does not involve additional surface disturbance
·Tourism and visitation activities on an area where such activities are already taking place.
Whilst the definition of the term “Surface Disturbance” and “Additional Surface Disturbance” do not refer to the surface of an area as opposed to the sub-soil, it is fairly clear that the disturbance in question is disturbance of the surface.
At paras 7.1 and 7.2 of the 2018 agreement, the native title applicant and the joint venturers appear to have adopted these guidelines.

SECTION 39 OF THE NATIVE TITLE ACT

In summary, concerning s 39(1)(a) I take into account the following considerations:
·the fact that there may be some loss of access to the surface of MLA 700061, although there is no suggestion that the native title claim group attaches any particular significance to that area, it being part of a much larger area, or that they frequently resort to it, if at all;
·within the area covered by MLA 700061, there is no suggestion of Aboriginal occupation or sites within the area covered by MLA 700061; and
·the area has been subject to extensive extinguishment of native title, together with other mining and grazing activity.
Pursuant to s 39(1)(b) I must take into account the interests, proposals, opinions or wishes expressed by the native title applicant. The native title applicant neither consents to, nor opposes the proposed grant and has indicated that if I determine that MLA 700061 may be granted, the grant should be unconditional.
Concerning s 39(1)(c), the State and the joint venturers assert that significant economic and social benefits will flow from such grant. There is no reason to doubt these propositions. Section 39 (1)(e) requires that I take into account any public interest in the proposed grant. Prima facie, the State is an appropriate arbiter of the public interest concerning mining within its borders. Obviously, it supports the proposed grant. I see no basis for rejecting that view.
As to section 39(2), the only non-native title rights and interests have been identified. The joint venturers are negotiating with them, or intend to do so. There is no reason to expect that they will be adversely affected by the proposed grant. I have also taken into account existing uses of land and water by persons other than the native title claim group. I do not understand there to be any issue arising under s 39(3).

A LATE SUBMISSION

On 10 May 2021, I circulated a copy of my reasons for determination, seeking to ascertain whether the parties had reached agreed upon any matters pursuant s 39(4) of the Native Title Act. No agreement was identified. However the native title applicant asked that I take a particular course. I declined to do so. I attach the native title applicant’s request dated 18 May 2021 (“Attachment 1”) and my response dated 20 May 2021 (“Attachment 2”).

DETERMINATION

Pursuant to s 38(1)(b) I determine that the State may grant MLA 700061.

The Hon J A Dowsett AM, QC

President
21 May 2021

Attachment 1

Attachment 2