Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland
[2006] NNTTA 3
•30 January 2006
NATIONAL NATIVE TITLE TRIBUNAL
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), [2006] NNTTA 3 (30 January 2006).
Application No: QF05/3
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into a Future Act Determination Application
Robert Bond Cameron (grantee party)
- and -
Ernest Hoolihan, Hazel Illin, Elsie Thompson on behalf of the Gugu Badhun People (native title party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 30 January 2006
Hearing dates: 2 September; 27 October; 19 December 2005.
Representatives:-
Grantee Party: Zoe Farmer, Lawyer
Government Party: Eve Fraser, Crown Law, Queensland
Catchwords: Native title – future act determination application – proposed mining lease – no contentions or evidence submitted by the native title party – determination that the act may be done
Legislation:Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 28, 34, 35, 53
Environmental Protection Act 1994 (Qld) ss 17, 151, 207, 208, 211, 216, 219, 233, 234, 430, 431
Mineral Resources Act 1989 (Qld) ss 234, 235, 236, 269, 276, 298
Mineral Resources Regulation 2003 (Qld) s 18
Native Title Act 1993 (Cth) ss 24MD, 24OA, 26, 28, 29, 31, 35, 36, 38, 39, 44H, 75, 109, 139, 203BB
Cases: Armstrong v Brown [2004] 2 Qd R 345
Cameron/Hoolihan/Queensland [2005] NNTTA 2005 (16 November 2005)
Cheinmora v Striker Resources NL (1996) 142 ALR 21
De Rose v South Australia (No 2) (2005) 145 FCR 290
Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 (13 February 2003)
Evans v Western Australia (2003) 77 FCR 193
Little v Western Australia [2001] FCA 1706
Re Robert Bond Cameron [2004] QLRT 2
Silver v Northern Territory (2002) 169 FLR 1
Summons v Victoria (2003) 176 FLR 1
Walley v Western Australia (1999) 87 FCR 565
Western Australia/Hughes/Crowe/Rough Range Oil Pty Ltd [2004] NNTTA 108 (1 December 2004)
Western Australia v Thomas (1996) 133 FLR 124
Western Australia v Ward (1996) 70 FCR 265
REASONS FOR DECISION
On 27 August 2004, the State of Queensland (the government party) gave notice under section 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant Mining Lease ML 10290 (the proposed tenement) to Robert Bond Cameron (the grantee party). There were no registered native title determination applications covering any part of the area of the proposed tenement at that time.
The proposed mining lease is a future act covered by section 26(1)(c)(i), namely the creation of a right to mine by the grant of a mining lease. The grant of ML 10290 cannot be validly done unless the right to negotiate requirements of Subdivision P of Division 3 of Part 2 of the Act are complied with. Failure to comply with the right to negotiate requirements of Subdivision P would render the act invalid to the extent that it affects native title – sections 24OA and 28.
The section 29 notice stated that the mining lease would authorise the grantee to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term of twenty-one (21) years with the possibility of renewals for a term not exceeding twenty-one (21) years.
The proposed tenement, comprising 37.116 hectares, is located approximately 45 km south west of Greenvale (which is approximately 200 km from Townsville) and lies completely within the boundaries of the Gugu Badhun native title determination application (QUD244/04). The Gugu Badhun native title determination application was filed with the Federal Court on 29 November 2004 and was entered on the Register of Native Title Claims on 23 December 2004. The persons collectively comprising the applicant are Mr Ernest Hoolihan, Ms Hazel Illin and Ms Elsie Thompson.
On 15 August 2005, the grantee party applied to the National Native Title Tribunal (the Tribunal), pursuant to section 35, for a determination under section 38. As at least six months had passed since the notification day, the grantee party was entitled to make this application – section 35(1)(a).
On 2 September 2005 the Tribunal convened a preliminary conference to address the issues relevant to the inquiry and matters which may have assisted the negotiation parties to settle the matter. The two issues of central importance at a preliminary conference are to ascertain if any of the negotiation parties wishes to make a jurisdictional challenge to the Tribunal’s making a section 38 determination on the basis that the negotiations have not been conducted in good faith, and to hear the parties before Directions are made. The Directions normally deal with the following matters:
the lodgment of contentions relating to the criteria in section 39 and any conditions sought to be imposed on the doing of the future act;
the lodgment and inspection of documentary evidence to be relied upon by any party;
listing hearing dates;
dates for the hearing of evidence;
requirements for the outline of evidence of witnesses and the provision of that material to the other parties and the Tribunal;
a summary of agreed facts (if appropriate) to be prepared by the parties and lodged with the Tribunal; and
the implications of any section 150 conferences directed by the President to help in resolving matters relevant to the inquiry.
The Tribunal cannot make a section 38 determination if any negotiation party satisfies the presiding Member that either the government or grantee party did not negotiate in good faith – section 36(2). At the 2 September 2005 Preliminary Conference, the native title party contended that the grantee party had not negotiated in good faith. Accordingly Directions were made on that date providing for a preliminary hearing to determine whether the grantee party had negotiated in good faith as well as for the substantive hearing should it be determined that the negotiation parties had negotiated in good faith.
After receiving contentions from each of the negotiation parties, the Tribunal determined that the grantee party had fulfilled his obligation to negotiate in good faith and that the Tribunal had jurisdiction to conduct an inquiry and make a determination pursuant to section 38 – Cameron/Hoolihan/Queensland [2005] NNTTA 84 (16 November 2005).
On 20 November 2005 the Tribunal was advised by Ms Susan Gilmour that D & G Lawyers were no longer acting for the native title party in relation to these proceedings. A status conference was convened on 21 November 2005 in an attempt to determine the legal status of the native title party, in particular whether Central Queensland Land Council Aboriginal Corporation (CQLC), the native title representative body in this area, had either sought or received instructions to act on behalf of the Gugu Badhun People.
The Directions made on 2 September 2005 were amended on 21 November 2005 to allow the parties further time to comply, and a copy of the Directions were forwarded to CQLC. The Directions of 2 September 2005 required the government and grantee parties to provide their contentions and related documents by 4 November 2005 and the native title party by 25 November 2005. The amended Directions reversed the order of compliance with the grantee party providing his material by 5 December 2005, the government party by 12 December 2005 and the native title party by 21 December 2005.
Both the grantee party and the government party complied with the Directions and filed with the Tribunal contentions and related documents on 5 and 12 December 2005 respectively. During this time the Tribunal made contact with CQLC on a number of occasions in an endeavour to ascertain the status of the legal representation of the native title party. It was the understanding of the Tribunal that CQLC staff were in contact with the persons collectively comprising the applicant to ascertain if they wished the representative body to represent the Gugu Badhun in these proceedings.
Not having been provided with any definite information on either the status of the native title party’s legal representation or whether the native title party would be complying with the amended Directions, a further conference was convened on 19 December 2005. At that conference the Tribunal was informed by Dr Cecilia O’Brien of CQLC that it had been unable to obtain instructions from the native title party and as such the representative body would not be able to represent that party and could not otherwise assist the Tribunal. It should be noted that while a representative body is empowered to undertake wide ranging facilitation and assistance functions, section 203BB(2) specifically prevents a representative body from so doing “unless it is requested to do so.”
As by close of business 21 December 2005 the native title party had not complied with the Directions the Tribunal wrote to each of the persons collectively comprising the applicant on 23 December 2005. All of the relevant facts were set out and the letter concluded as follows:
“The date by which the Gugu Badhun People had to comply with the Tribunal’s Directions has passed and there is now an urgent need for compliance. For your records a copy of the Directions is attached. If the Directions are not complied with the Member will have no option but to proceed and make a determination under section 38 of the Native Title Act 1993 (Cth). The Member has indicated that he will hand down that decision in the second or third week of January.”
The letter also provided details of a Tribunal officer who could be contacted with respect to the matter. Unfortunately no written or telephone contact was made by any of the persons comprising the applicant. In a final endeavour to make contact with the relevant persons and again highlight that time was of the essence, a letter in the following terms was forwarded on 6 January 2006:
“As there has been no written or telephone contact with me in response to my letter of 23 December 2005, the Member has asked that I write to advise that in the absence of any contact by the applicant or their legal representative the Member will commence drafting the determination in the week commencing 16 January 2006. If you have any queries please contact me as a matter of urgency.”
Despite the repeated efforts of the Tribunal to make contact with the native title party and clarify issues of legal representation and compliance with Directions, it is now clear that the native title party is not legally represented and has not, for whatever reason, complied with the Directions. I have therefore proceeded on the assumption that the native title party did not intend to participate further in this inquiry and did not intend (or did not have the relevant legal assistance) to provide written or oral evidence or contentions.
The situation confronting the Tribunal is not unique. Due to a variety of factors (lack of resources being only one) there have been cases where native title parties have not participated in, and have not supplied the Tribunal with any evidence in a future act determination application proceeding. This situation is not satisfactory but the statutory duty placed on the Tribunal in such circumstances is clear. Where a future act determination application is made pursuant to section 75 the “Tribunal must hold an inquiry” – section 139. Moreover unless the negotiation parties reach agreement pursuant to section 31 or the Attorney-General makes a determination under section 36A, the Tribunal must make a determination pursuant to section 38(1). Further, the Tribunal must take all reasonable steps to make a determination “as soon as practicable” - section 36(1). This statutory directive is given extra weight by the fact that in certain circumstances the Attorney-General can intervene and make a determination in relation to the act at a time later than 6 months after the section 35 application. In short, if a negotiation party has made application to the Tribunal for a determination pursuant to section 35, and that application has not been withdrawn (s 35(2)), in the absence of agreement being reached or Ministerial intervention, the Tribunal is required to make a determination as soon as practical. Clearly procedural fairness requires the Tribunal to structure its Directions and manage proceedings so that maximum opportunity is provided to the parties to present their case. This is particularly important for a native title party, as the right to negotiate is a valuable right. Indeed it is most probably the single most important empowering provision in the Act for the vast bulk of native title holders. To effectively lose that right through inadvertence or lack of legal representation is troubling and the Tribunal uses all reasonable endeavours to attempt to ensure that a native title party is given every opportunity to have meaningful input into the process. There is however, an overarching statutory obligation on the presiding Member not to stall proceedings or to avoid making a determination under section 38, even in the absence of submissions from a native title party.
One reason why the failure of a native title party to participate in a future act determination inquiry is troubling is that, when making a section 38 determination, the Tribunal is required to take into account the criteria outlined in section 39. Some of those criteria can only be satisfactorily weighed by reference to evidence presented by the native title party. For example, the Tribunal is directed to consider the effect of the future act on the enjoyment by the native title party of its registered native title rights and interests (s 39(1)(a)(i)), the way of life, culture and traditions of the native title party (s 39(1)(a)(ii)) and any area or site on the land of particular significance to the native title party, in accordance with their traditions (s 39(1)(a)(v)). Further, the Tribunal must take into account the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the relevant land that will be affected by the future act – section 39(1)(b). One preliminary and threshold issue which necessarily arises is whether the Tribunal can make a determination if it lacks any evidence of such matters. Section 39 is drafted in mandatory terms. The Tribunal must take into account the enumerated criteria. Properly read this compels the Tribunal to take into account any evidence before it relating to such matters. The section does not prohibit the making of a determination in the absence of such evidence merely, that in making a determination, any evidence falling within the enumerated categories must be factored into a section 38 determination.
A further and related issue, is whether the Tribunal has imposed on it any obligation to go beyond the evidence submitted by the parties in an endeavour to ensure that the statutory obligation imposed by section 39 can, as far as possible, be given proper effect. This issue was authoritatively dealt with by a full panel of the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 where it was said (at 162):
“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.”
I accept and adopt this statement of law. The Tribunal is required by the Act to conduct a focused inquiry in a relatively short period of time. Future act determination inquiries can be difficult, and complex issues of fact and law can arise. However, the National Native Title Tribunal is not a roving royal commission. It lacks both the powers and resources to operate as a royal commission when conducting a relatively narrow and focused future act inquiry. Section 109(1) enjoins the Tribunal to carry out its functions “in a fair, just, economical, informal and prompt way.” Moreover the Tribunal is “not bound by technicalities, legal forms or rules of evidence” – section 109(3). Accordingly, the Tribunal is not limited to considering only the evidence submitted by the parties. It can, in appropriate circumstances, make its own inquiries. However, the Tribunal not only is not bound to do so, but must exercise restraint in venturing beyond the material submitted. In this matter, the Tribunal was presented with detailed material by both the government and grantee parties. That material addresses the section 39 criteria. The native title party was legally represented throughout much of the inquiry. Further, the native title party had the opportunity to be represented by CQLC. Ultimately the native title party has chosen, for whatever reason, not to engage in the inquiry process. I draw no conclusions or inferences from this state of affairs. Procedural fairness in this inquiry does not require the Tribunal to engage in a separate fact finding exercise. I formed the view that it was open, appropriate and fair for the Tribunal to proceed and make a section 38 determination based on the evidence submitted and that it was both unnecessary and inappropriate to independently venture beyond that material.
The Proposed Tenement Area – previous exploration and prospecting
The proposed tenement is wholly contained within Lot 575 on Crown Plan PH219 which is currently held under a Preferential Pastoral Holding Lease (11/575) granted under the Land Act 1962 (Qld) commencing on 1 April 1964 for a term of 53 years.
The proposed tenement area (in part or whole) has been subject to previous exploration permits and authorities to prospect granted under Queensland mining and petroleum legislation. Currently the relevant area is subject to Exploration Permit for Minerals (EPM) 14193 which was granted under the Mineral Resources Act 1989 (Qld) to Mr Cameron for a term of 5 years from 16 July 2004. The tenement was granted for all minerals other than coal. Details of previous grants are set out below:
Tenement Type Grant Expiration Nature of Grant
EPM 133 24.4.1959 3.2.1960 minerals (not coal)
EPM 2485 16.7.1980 23.6.1984 minerals (not coal)
EPM 4407 11.9.1986 10.9.1987 minerals (not coal)
EPM 5436 7.6.1988 14.3.1989 minerals (not coal)
EPM 6055 2.10.1989 6.12.1991 minerals (not coal)
EPM 9233 4.3.1993 6.10.1998 minerals (not coal)
EPM 9239 4.3.1993 3.3.1998 minerals (not coal)
EPP 73 10.6.1959 30.5.1960 petroleum
EPP 94 1.6.1962 31.3.1964 petroleum
The Location and Nature of the Proposed Mining Operations
As previously mentioned, the proposed tenement is a mining lease. It was submitted by the grantee party, and not contested, that the proposed tenement is situated at the foothills of the Great Dividing Range with much of the area being flat with gently undulating hills and containing no permanent water. The vegetation in the area was described as “open woodland” supporting low intensity grazing. Documentation produced by the grantee party asserts that there are no identified rare or unusual vegetation types within the relevant area nor have any rare or endangered fauna species been located. Aquatic biology is restricted to intermittent seasonal pools of water in seasonal watercourses during the wet season. The only site of identified historical significance is Pandanus Creek Homestead which is located outside the tenement area and some kilometres to the south.
The grantee party intends to utilise the proposed tenement for the extraction of black marble. It is claimed that the marble located on the subject land is blacker and harder than comparable black marble found elsewhere. It is claimed that the quality of the marble would be in demand, and because of its distinctive and unique qualities could be marketed at a high price.
It is proposed to extract the marble in rough block form, with the blocks being sawn from the quarry face using a diamond wire saw or a jet belt. The grantee party asserts that no dust will be produced and that the internal roads will be sheeted with fines and regularly watered to suppress dust.
The dimensions of the marble blocks prepared for export are stated to be 3 metres long, 1.8 metres wide and 1.5 metres high, weighing approximately 20 tonne. Production is estimated at 4,000 cubic metres per annum, however work will be seasonal, stopping during the wet season. It is stated that neither explosives or chemicals will be used to extract the material and the blocks will be stored at Greenvale or Townsville pending export. The only buildings and plant to be erected will be two sea containers with roofing span between to serve as a maintenance workshop. No workers will live on the site and their place of residence will be Greenvale. It is estimated that during Stage 1 of the mine a total of approximately 3 or 4 quarry staff, 3 office staff and one truck driver will be employed. In short, the proposed mining operation is of a very small scale.
It is submitted by the grantee party that disturbance will be minimal and confined to a small area – Stage 1 will comprise a pit surface area of approximately 35 metres by 15 metres. Further, the grantee party contends that the subject area has been disturbed by previous activities including gold drilling by BHP, road base quarry operations by Dalrymple Shire Council and grazing activities.
The Relevant Mining and Environmental Law
The relevant law governing the grant of mining leases in Queensland is prescribed by Part 7 of the Mineral Resources Act 1989. Section 234 of that Act provides that the Governor-in-Council may grant to an eligible person(s) a mining lease for the following purposes:
(a) to mine the mineral(s) specified in the lease and for all purposes necessary to effectually carry out the mining;
(b) such purposes, other than mining, specified in the lease and that are associated with, arising from or promoting the activity of mining.
However, coal seam gas can not be specified in a mining lease. Importantly, the holder of a mining lease can make application for approval to mine minerals not specified in the mining lease – section 298.
The general entitlements of the holder of a mining lease are prescribed by section 235. Basically the holder of the lease (as well as employees, agents etc) is permitted to enter and occupy the tenement areas for any purpose authorised by the lease. Further, sand, gravel and rock on the lease area may be utilized by the tenement holder subject to the payment of any prescribed royalty – section 236.
The general conditions imposed on mining leases are set out in section 276. Every mining lease is subject to the following standard conditions:
(a)the land is only to be used for the purpose specified in the lease;
(b)the holder must carry out improvement restoration for the mining lease;
(c)prior to expiration, all buildings, structures, equipment and plant on the tenement area must be removed;
(d)no obstruction or interference with any third party right of access to the tenement area;
(e)no assignment, sublease or mortgage without Ministerial consent;
(f)the lessee to furnish any prescribed reports, returns, documents etc;
(g)provide materials obtained under the mining operations to the Minister in the manner and quantities as the Minister reasonably requires;
(h)where the tenement area is a reserve, the holder shall comply with the terms and conditions upon which the consent of the owner or Governor-in-Council to the grant of the lease was given;
(i)during the term of the lease maintain all survey pegs and other markings;
(j)payment of compensation, rental, royalties, local authority rates and deposits; and
(k)compliance with such further conditions as may be prescribed or determined.
Section 18 of the Mineral Resources Regulation 2003 prescribes further conditions for the holder of a mineral lease, namely:
(a) using, where practicable, only existing roads or tracks on the relevant land;
(b)taking reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the relevant land;
(c)not allowing an animal on the land, unless the land is fenced in a way to prevent the animal leaving the land or restraining the animal; and
(d)not to discharge a firearm on the land unless the holder has the consent of the owner of the land and the consent is lodged with the mining registrar.
It is proposed to grant a mining lease to the grantee party for the purposes of mining building stone. In addition to the conditions prescribed in the Mineral Resources Act 1989 the draft mining lease supplied to the Tribunal also has a further three conditions/reservations, namely:
(a) that the grant of the tenement does not create an estate or interest in land;
(b)a reservation that the relevant officers of the Crown have full and free access to enter upon the land to view and examine the condition of the land and the mining operations; and
(c) all petroleum on or below the surface is the property of the Crown.
It also should be noted that in addition to issues relating directly to the grant of a mining lease, which are dealt with under the Mineral Resources Act 1989, since 2000 the environmental regulation of mining in Queensland is vested in the Environmental Protection Agency (EPA) and the relevant legislative regime is the Environmental Protection Act 1994 (Qld). The holder of a mining tenement must also hold an environmental authority for mining activities on the proposed tenement. Consequently a person or entity wishing to engage in mining activity in Queensland must not only make the relevant application under the Mineral Resources Act 1989 with the Department of Natural Resources, Mines and Energy but also apply for an environmental authority under the Environmental Protection Act 1989 with the EPA.
The EPA is ultimately responsible for decisions on the environmental conditions governing mining activity, together with oversight of environmental compliance. Mining applications are subject to an assessment level decision to determine if the proposed mining activities are “standard” or “non-standard” mining activities – section 151, 162(1) and 207. Standard mining activities are those which pose a low risk of “serious environmental harm”. This term is defined by section 17 as an environmental harm that causes actual or potential harm to environmental values:
(a) that is irreversible, of a high impact or widespread;
(b) of an area of high conservation value or special significance;
(c)of an amount of, or amounts totaling, more than the threshold amount ($50,000 or such larger amount that is prescribed), or that results in costs more than the threshold amount in taking action to either minimize the harm or rehabilitate or restore the environment.
The EPA may only determine that proposed mining activity is standard if it considers that the activity will have a low risk of serious environmental harm and the activity will be allowed under an environmental authority and all mining activities to be allowed meet the prescribed criteria – see section 151.
Applications for environmental authorities for mining activities on mining leases are publicly notified with applications for the proposed tenement under the Mineral Resources Act 1989 – section 211. An “entity” may object to the application, and all properly made out objections are referred to the Land and Resources Tribunal – ss 216, 219.
The Tribunal was informed by the government party that a draft environmental authority was issued to the grantee party on 8 September 2003, which draft authority was publicly advertised. No objections were lodged in relation to it. The matter was considered by the Land and Resources Tribunal in Re Robert Bond Cameron [2004] QLRT 2 by Mr Windridge MR. Pursuant to section 269 of the Mineral Resources Act 1989 the Land and Resources Tribunal is required to make a recommendation to the Minister whether the mining lease should be granted or rejected in whole or in part. The Tribunal is required to take into account the criteria outlined in section 269(4) when making a recommendation that a mining lease be granted. Amongst those criteria are whether the proposed mining operations will conform with sound land use management (s 239(4)(i)), whether there will be any adverse environmental impacts (s 239(4)(j)) and whether the public right and interest will be prejudiced (s239(4)(k)). In Armstrong v Brown [2004] 2 Qd R 345 McMurdo J said (at 348): “the Tribunal should not recommend the grant of a mining lease unless the circumstances warrant that recommendation, having regard to the purposes for which the Crown should give a right to mine its minerals.” Mr Windridge dealt with each of the criteria outlined in section 269(4) and formally recommended to the Minister for Natural Resources and Minister for Mines that Mining Lease 10290 be granted over the whole of the application area for the purpose of mining building stone in block form for a term of 25 years. On the question of whether there would be any adverse environmental impacts by the grant of the proposed tenement Mr Windridge said (at [13]):
“The draft environmental policy was issued on 8 September 2003. It requires the Applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. The draft authority was publicly advertised and no objections were lodged in relation to it. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the Code.”
The grantee party was issued with a standard environmental authority (mining activities) - Permit No. MIM400173103 - on 14 July 2004. The Permit is subject, inter alia, to the grantee complying with each of the Standard Environmental Conditions contained in the Code of Environmental Compliance for Mining Lease Projects (January 2001). The Code is a comprehensive document totaling 65 pages. Failure to comply with the provisions of the Code is a breach of the environmental authority and the holder is liable to prosecution under section 430 of the Environmental Protection Act 1994. Breaches of section 430 have been treated by the Courts as serious offences, even though the breach was relatively technical – Williams v Pacific Waste Management GS14/98 and 867/97 per Dean SM 22.4.1998 – or there was no evidence of resulting environmental harm – Photios v Ledger 2312/2848-2849/97 per Williams SM 23.9.1997. Moreover section 431 places a vicarious duty on the holder to ensure that persons acting under the authority comply with the conditions of the authority. Matters dealt with in the Code include requirements that the holder must:
(a) minimize disturbance to land and vegetation (Condition 3);
(b) not cause an unreasonable release of dust (Condition 4);
(c) not cause unreasonable noise (Condition 5);
(d) construct works to minimize the potential for water runoff to enter disturbed areas (Condition 6);
(e) construct works to prevent or minimize erosion and sedimentation of watercourses (Condition 7);
(f) ensure proper topsoil and overburden management (Condition 8);
(g) conduct mining activities to prevent release of hazardous contaminants (Condition 9);
(h) clean up spills of hazardous contaminants (Condition 10)
(i) segregate, and properly dispose of, acid producing waste rock (Conditions 11 and 12)
(j) prevent the spread of declared plants (Condition 13);
(k) carry out activities within specified distances of environmentally sensitive areas (Condition 14);
(l) not carry out activities within 100 metres of an identified historical, archaeological or ethnographic site;
(m) engage in environmentally relevant activities including chemical storage, incinerating waste and battery and tyre recycling – Condition 16;
(n) consult with the landowner prior to establishing any new roads and tracks (Condition 17) or campsites (Condition 19);
(o) minimize any disturbance to land, vegetation etc when constructing new roads or tracks ( Condition 18) or campsites (Condition 20);
(p) not release waste(Condition 21) or waste water (Condition 24) or contaminants, including fuel or oil (Condition 25) into any watercourse etc, and, in any event, not more than 50 tonne of general waste per year – Condition 22;
(q) operate, maintain and decommission all dams in accordance with the prescribed criteria – Condition 23;
(r) ensure that chemicals, fuel and oil storage facilities are designed and operated in accordance with the prescribed guidelines – Conditions 26 and 27;
(s) ensure the prescribed monitoring, reporting and emergency response procedures are complied with – Condition 28;
(t) comply with the prescribed rehabilitation provisions – Conditions 29, 30, 31, 32, 33, 34, 35 and 38 including care of any remaining mine infrastructure after mining has ceased – Condition 36; and
(u) when engaging in dimension stone mining, prevent or minimize the release of fines from the processing plant – Condition 47. This requirement is in addition to the various requirements in other Regulations, Policies and Procedures governing the use of explosives when engaging in dimension stone mining.
In addition to all of the above Conditions, is the requirement in Condition 1 that the holder must submit to the EPA a Plan of Operations for the mining lease. This Condition is a restatement of the specific statutory obligation imposed by section 233 of the Environmental Protection Act 1994. The required content for such Plans is set out in section 234. Basically the holder must prepare a plan showing where all activities are proposed to be carried out, an action program for complying with the conditions of the environmental authority and a rehabilitation program for the land proposed to be disturbed.
The government party also drew to the Tribunal’s attention the requirements imposed on the grantee party by the Aboriginal Cultural Heritage Act 2003. This Act requires that a person must exercise due diligence and reasonable precaution before undertaking an activity that might harm Aboriginal cultural heritage. In particular section 23(1) requires a person to take all reasonable and practicable measures to ensure that the relevant activity being undertaken does not harm Aboriginal cultural heritage. Section 23(2) provides a non-exhaustive list of matters that a Court can consider when determining if the person or entity has complied with the cultural heritage duty of care. Included amongst the indicia are the nature of the activity, the nature of the Aboriginal cultural heritage, the extent of consultation with affected Aboriginal parties, whether a cultural heritage survey was undertaken, compliance with cultural heritage duty of care guidelines and the nature and extent of past uses in the area affected by the activity.
Pursuant to section 28 of the Aboriginal Cultural Heritage Act 2003 the Minister may produce cultural heritage duty of care guidelines identifying reasonable and practicable measures for ensuring activities are managed to avoid or minimize harm to Aboriginal cultural heritage. Guidelines have been issued and a copy was provided to the Tribunal.
Summing up, the above brief and non-exhaustive overview of the current state of mining, environmental and cultural heritage law impacting on relatively low impact mining activities, highlights that Queensland possess a comprehensive and well integrated regime that aims to an appropriate level of environmental and cultural protection. While it is not strictly relevant for this determination, it is a matter of public record that the Criminal Justice Commission inquiry into Improper Disposal of Liquid Waste in South-East Queensland conducted in 1994 by the Honourable R H Matthews QC found numerous flaws and non-compliance with environmental controls in the Queensland mining industry. The 2000 legislative amendments which transferred oversight of environmental management of mining to the EPA and which exposed mining operators to greater public scrutiny, created a more transparent process and provided for greater public input through objection rights.
The material before the Tribunal demonstrates that the legislative regime cumulatively provides a protective framework which ameliorates the likely or potential effect of the future act on the native title rights and interests of the native title party.
Native Title Rights and Interests
The proposed tenement falls wholly within and corresponds with the area of land and water of the Gugu Badhun People’s native title claim (QUD 244/04). The registered native title rights and interests, so far as are relevant, which were entered on the Register of Native Title Claims are as follows:
“1. The claimants are entitled, under traditional laws acknowledged and customs observed, to exercise native title rights and interests in relation to the area claimed being the following particular rights and interests:
A.The following rights and interests of those claimed can be prima facie established pursuant to s.190B(6) only over areas where exclusive possession can be sustained:
(a)to possess, occupy, use and enjoy to the exclusion of all others, those parts of the area claimed where there has been no extinguishments of native title or where section 238 Native Title Act applies;
(c)to speak for and to make decisions, as a native title community ,about the use and enjoyment of the application area.
B.The following rights and interests can be established prima facie pursuant to section 190B(6) over the whole of the claim area:
(d) to reside upon and otherwise have access to and within the application area;
(f) to use and enjoy the resources of the application area.”
Legal Principles
In making a section 38 determination the Tribunal is required to take into account the criteria outlined in section 39. The proper approach to applying the section 39 criteria was outlined by the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 at 165-166 as follows:
“Our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned …. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.”
Pursuant to section 38(1) the Tribunal must make one of three types of determinations, namely a determination that the act must not be done, or that the act may be done, or that the act may be done subject to conditions. Specifically, the Tribunal is prohibited from imposing a profit-sharing condition – section 38(3). The Act does not specify what sort of conditions the Tribunal may impose, although the section 39 criteria “provides an indication in broad terms of what Parliament considers might be the appropriate subject matter of conditions which the Tribunal might impose upon the doing of the act.” per Carr J Walley v Western Australia (1999) 87 FCR 565 at 576.
It is useful for the purposes of this determination to set out section 39(1) in its entirety:
“39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.”
As is clear from section 39(1)(f), the Tribunal is not restricted to a consideration of the enumerated criteria, and can take into account any other matter that is relevant. While the Tribunal’s charter is very broad ranging, clearly the main focus of the inquiry is a consideration of the specified criteria.
Section 39(1)(a)(i) and section 39(2) – enjoyment of registered native title rights and interests
The Tribunal, for the purposes of weighing up the section 39 criteria, proceeds on the basis that registered native title rights and interests are assumed to exist as if they had been determined by the Federal Court. The full panel of the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 said (at 167): “by giving the right to negotiate to claimants as well as holders of native title, the Act requires us to accept the possibility that each of the native title rights and interests described in the application exist.”
However, section 39(1)(a)(i) requires the Tribunal to determine the effect of the proposed future act on the registered native title rights and interests. In other words the Act requires the Tribunal to inquire as to the likely impact of the future act on those rights and interests and not to assume that there will be an impact. Again to quote Western Australia v Thomas (at 167): “The question of whether a proposed future act has an effect on the native title rights and interests of the particular native title party (or parties) is a matter of fact to be determined on the evidence of each case and will depend on the nature of the act and the native title rights and interests which are capable of being affected.”
The Tribunal does not inquire into registered native title rights and interests in the abstract. Depending on the nature of the rights and interests claimed, it is usually the case that a section 39(1)(a)(i) weighing exercise can only be sensibly undertaken if there is actual evidence before the Tribunal in regard to how a native title party exercises the registered rights and interests on the area of the proposed tenement. Although there is no burden or onus of proof in these proceedings, as a matter of common sense it is only the native title party who can produce evidence on how those rights and interests are enjoyed and exercised on the subject land. In previous inquiries the Tribunal has said that it is the “responsibility” of the native title party to produce such evidence – see e.g. Egerton GoldNL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 at [25] per Deputy President Sumner. Clearly there is a responsibility placed on a native title party on the basis of the Directions made, but if the native title party chooses for whatever reason not to produce such evidence, then the Tribunal must proceed with the information and submissions that have been lodged by the other negotiation parties.
It is also the case that the Tribunal when making an assessment under this paragraph is required by section 39(2) to take into account existing non-native title rights and interests in the relevant area as well as the existing use of the land by other persons. Even before the Act was amended in 1998 the Tribunal recognized that it could take into account when evaluating section 39(1)(a)(i) the practical effect of non-native title activities such as mining and pastoral activities. In Thomas v Western Australia (1996) 133 FLR 124 at 169 the Tribunal said: “These activities may have had an effect on the native title parties’ connection with and use of the land and may have led to an attenuation of native title rights and interests.”
It is of relevance in this regard that the subject land forms part of a pastoral holding and has been the subject of numerous tenement grants under various Queensland mining statutes over at least a 50 year period.
The Tribunal has before it no substantive evidence of how the native title party’s registered rights and interests are enjoyed. For example, there is no evidence of how often members of the claim group visit the land and waters in question. The Tribunal has not been informed whether the tenement area is used for hunting or recreational purposes or if ceremonies ever take place or, if they do, at what times of the year. Unlike some other inquiries when the Tribunal is presented with a rich fabric of oral and written evidence about the activities, stories and aspirations of native title claimants, in this matter the Tribunal has been given no material to take into account in carrying out this evaluative exercise.
A proper evaluation of the section 39(1)(a)(i) criterion can only be undertaken if there is actual evidence of how the registered rights and interests are enjoyed. The Tribunal, as stated, has no charter to make determinations of native title. Conversely, the Tribunal is not permitted to discount registered rights and interests. A future act determination application inquiry proceeds on the basis that those rights exist. However, the bare assertion of their existence provides no assistance in evaluating how they are enjoyed in practice.
The Tribunal has taken into account the following factors when evaluating section 39(1)(a)(i):
(a) the history of previous tenement grants over the subject area;
(b) the existence of an extant pastoral lease and the likelihood that past and present pastoral activities will have negatively impacted on the enjoyment of any registered native title rights and interests. In particular no evidence has been led about what freedom of access members of the native title party have to the subject land;
(c) the uncontested contention of the grantee party that the subject area has been accessed for road quarry operations by Dalrymple Shire Council;
(d) the operation of the non-extinguishment principle in section 24MD(3)(a) to the granting of the mining lease;
(e) the small scale nature of mining operations;
(f) the localized area of mining activity and lack of significant intrusive operations on the site, particularly with no workers living on site, seasonal operations, no intended use of explosives and no intention to construct or locate significant structures or plant;
(e) the absence of any evidence of how members of the native title party enjoy their registered native title rights and interests; and
(f) the uncontested assertion of the grantee party that the “Gugu Badhun People do not live in the area and, from the applicant’s own knowledge and what the pastoral lease holder has told the applicant, they have never been known to visit the area (except for the time that representatives went to the site for the abovementioned cultural heritage inspection).”
In conclusion, there is no evidence before the Tribunal that the grant of the tenement will have any impact on the enjoyment of the native title party’s registered rights and interests. However, assuming that there will be some intersection between the granting of the tenement and the enjoyment of those rights, I find that having regard to the attenuated nature of that enjoyment brought about by a combination of previous grants and previous and current pastoral activity together with the relatively low impact nature of the proposed mining operations, it is unlikely that the enjoyment of the registered rights and interests will be significantly affected.
Section 39(1)(a)(ii) – way of life, culture and traditions of the native title party
No evidence has been lodged with the Tribunal to support a finding that the grant of the proposed tenement will have any effect, let alone any major effect, on the way of life, culture and traditions of the native title party.
Section 39(1)(a)(iii) – development of social, cultural and economic structures
The only material before the Tribunal under this criterion is the contention by the grantee party that the granting of the future act could offer employment and commercial opportunities for the native title party.
In Western Australia v Thomas (1996) 133 FLR 124 the Tribunal noted (at 170): “The social, cultural and economic structures of Aboriginal societies are not static. A mining proposal could have either a positive or negative effect on the development of these structures.” Furthermore in Western Australia v Ward (1996) 70 FCR 265 Lee J said (at 278): “the Tribunal is required by the Act to consider manifold consequences, either singly or in combination, that may follow from the doing of a proposed act and how such consequences may impact upon the complex concepts described in s 39.”
It is important to note that the Tribunal’s charter is to evaluate the probable effect of the future act on the development of social, cultural and economic structures. As Deputy President Sumner has stated: “it is not permissible to have regard under this criterion to any effect other than that caused by the particular future act under consideration. Section 39(1) talks of ‘the effect of the act’ on the criteria in s 39(1)(a). This cannot be expanded to include any Production Licence which may follow successful exploration.” – Western Australia/Hughes/Crowe/Rough Range Oil Pty Ltd [2004] NNTTA 108 at [36].
The scant material before the Tribunal leads to the inexorable conclusion that the granting of the future act will have little or no impact, either positive or negative, on the economic and other structures of the native title party. The limited employment opportunities presented by the proposed marble operations and the small scale nature of the operation, render it unlikely that the Gugu Badhun People will see any positive employment or financial impacts. Indeed, even if it were possible to look beyond the future act itself and evaluate any related impacts and actions that this operation may generate, it would still be the case that this operation offers or threatens very little for or to the native title party.
In conclusion, even approaching the evaluative task of assessing the impact of the future act under section 39(1)(a)(iii) from the very broad perspective enunciated by Lee J, I find that the effect of the future act on the economic and related structures of the native title party will be minimal if not non-existent.
Section 39(1)(a)(iv) freedom of access and freedom to carry out ceremonies
The grantee party submitted that the subject area is accessible from a nearby public road, and that only a small part of the pastoral lease lies between the road and the proposed tenement area.
It was also submitted by the grantee party that the subject area is not currently fenced and that the grantee has no intentions to fence the boundaries of the lease area. The only fencing proposed will be in the immediate mine area.
In evaluating this criterion I have taken into account the following factors:
(a) the stated intention of the grantee party not to fence the subject land, other than in the area of mining operations (which is small and localized);
(b) the absence of any evidence that members of the native title party have accessed the subject land recently or, assuming that they have, any evidence of the regularity of such visits, the numbers visiting and the length and nature of the visits;
(c) the absence of any evidence of any rites, ceremonies or other activities of cultural significance on the subject land; and
(d) the evidence led by the grantee party of the small scale nature of mining operations proposed.
I find that the grant of the proposed tenement will have little impact on the native title party’s freedom of access, other than within a small area used for mining, and then only for occupational health and safety reasons. In making this finding I am assuming, despite the absence of evidence, that members of the native title party do access the subject area, and that this access is, apart from any other reason, for the purpose of carrying out the activities specified in section 39(1)(a)(iv). Alternatively, on the basis of the absence of any evidence, it is open to find that there will be no adverse impact by the granting of the future act on the access of members of the native title party to the subject area for the specified purposes.
Section 39(1)(a)(v) – sites of particular significance
Section 39(1)(a)(v) focuses on areas or sites of particular significance. Similar terminology is used in section 237(b) which was interpreted by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 1 (at 34 - 35) in the following manner: “It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.” This passage has been endorsed on numerous occasions by the Tribunal as the correct means of understanding this paragraph – see e.g. Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46 at 70 and Summons v Victoria (2003) 176 FLR 1 at 23.
However, in order for the Tribunal to sensibly evaluate whether a site is of “particular” significance then such site must be positively identified by the native title party, its location must be stated and the nature of its significance explained – see Silver v Northern Territory (2002) 169 FLR 1 at 34. A bald assertion that a site is of “particular” significance without an explanation of why that is so, is insufficient. Moreover the person or persons making the assertion of “significance” must have the necessary authority and must be properly qualified to speak about the traditions of the claim group in relation to the areas or sites of significance – see Little v Western Australia [2001] FCA 1706 at [78] per R D Nicholson J. It necessarily follows that it is not ordinarily open for the Tribunal to make a finding that an area or site is of particular significance to a native title party in the absence of appropriate direct evidence from that party. The only exception to this general principle is if areas or sites are on a register of sites and the Tribunal believes, based either on the nature of the particular cultural heritage legislative regime, previous cultural heritage work or reports, or any other relevant material which has been put into evidence, that there is a sufficient evidentiary base to allow the Tribunal to draw the necessary inferences.
The government party filed an affidavit of Ms Nicole Harman a policy officer in the Cultural Heritage Coordination Unit of the Department of Natural Resources and Mines. The Department administers the Aboriginal Cultural Heritage Act 2003. Ms Harman deposed that under the Act both an Aboriginal Cultural Heritage Database and Register have been established. The Database and Register are non-exhaustive sources of information about cultural heritage values of particular areas of Queensland. The information on the Database however, has been collated over many years by a variety of State Government agencies. The key point for the purposes of this inquiry is that Ms Harman deposed that on 30 November 2005 she conducted a search of the Database and Register for Aboriginal cultural heritage sites but did not identify any sites within or partially within the area of the proposed tenement. While there is no doubt that the Queensland Register and Database are not purported to be exhaustive or conclusive sources for information on indigenous cultural heritage matters in Queensland, the affidavit of Ms Harman does at least provide some further information which has been of some marginal assistance to the Tribunal.
For the purposes of this inquiry I make no findings on the adequacy or otherwise of the protection that may be afforded for areas or sites of significance by the operation of the Aboriginal Cultural Heritage Act 2003.
The grantee party also contends that a cultural heritage inspection was conducted in June 2005 by members of the Gugu Badhun People which concluded that the area contained nothing of cultural heritage significance. It should be noted that Part 6 of the Aboriginal Cultural Heritage Act 2003 (Qld) sets out the requirements for the carrying out of a cultural heritage study and for having its findings recorded in the Register. Only a relevant Aboriginal party can assess the level of significance of areas and objects included in such a study (s 53), and an Aboriginal party for an area, so far as is relevant for this inquiry, is a registered native title claimant – ss 34 and 35. If in fact the cultural heritage inspection carried out in June 2005 was a cultural heritage survey of the type dealt with in Part 6 then any area or site of significance would have been dealt within accordance with that Part. While the information before the Tribunal is too scant to draw any conclusions, it can be determined that as a result of this inspection no material was added either to the Database or the Register.
I find that there is no evidence before the Tribunal of any areas or sites of particular significance to members of the native title party. Not only has the native title party not produced any evidence of such areas or sites but, in addition, I have factored into my evaluation the affidavit of Ms Harman and the uncontested submission of the grantee party of the results of the June 2005 cultural heritage survey.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party
The Tribunal has been provided by the native title party with no evidence relevant to this criterion.
Section 39(1)(c) – economic significance of the future act to Australia etc
This paragraph requires the Tribunal to evaluate the economic or other significance of the act to the wider community as well as Aboriginal and Torres Strait Islanders who live in that area.
A few observations can be made about the statutory task required of the Tribunal. First, the paragraph focuses on the significance of the act. It is not a generalized inquiry about the importance of exploration or mining to the economy (localized or national). It is a specific evaluation about the impact of the future act the subject of the inquiry. Accordingly, the Tribunal is not required under this paragraph to look any further than the evidence of how the proposed future act will impact on the economies and persons specified. Issues about the benefits of the mining industry to the health of the local, Queensland or Australian economy are not relevant to this paragraph. The only focus of this paragraph is the act in question and the only issue which the Tribunal is required to evaluate is the significance of the future act. The symbolic, cumulative or ripple impacts of the future act fall outside the purview of this paragraph.
Second, the inquiry is not limited to the economic consequences of the proposed future act – see Western Australia v Thomas (1996) 133 FLR 124 at 175. The term “other significance” is potentially broad and can only be sensibly dealt with in terms of the evidence produced at a particular inquiry. I do not read the term “other significance” as being limited to impacts of an economic or wealth related nature. It could be that the doing of the future act could have beneficial impacts for the advancement of medical or related research. For example, the minerals proposed to be extracted could be critical for medical research, or any other field of human endeavour. The “significance” of granting the right to mine must therefore be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated from the extraction of the relevant material from the relevant land or waters.
Finally, the Tribunal is required to evaluate the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. It should be noted that the Act is not worded to limit the inquiry to members of the native title claim group. Rather, the inquiry focuses on the significance of the act to indigenous persons generally. For example, it may be that a proposed mine will generate jobs and related benefits to indigenous Australians who live nearby whether or not they are members of the claim group. The 1998 amendments to this paragraph were designed to ensure that in any proper inquiry the interests of local indigenous persons living and having responsibilities in the general area, were given proper weight.
The government party made a number of submissions under this paragraph. It was contended that the proposed marble mine will have localized economic benefits, particularly for the small town of Greenvale which is currently in decline. The grantee party has indicated that a mine office will be opened in Greenvale and staff will be “housed” there. Further it was stated that the grant of the mining lease will generate royalty and rental revenue for the Queensland Government. In particular it was contended: “7.5 While the economic significance of the grant will not be great in the overall context of the Australian or Queensland economies there will be positive economic activity arising from the grant.” Finally, the government party submitted that there would be positive “societal impacts” on the local community from the economic activity generated by the granting of the mining lease.
The grantee party also submitted that the grant of the future act will have positive economic impacts on the local economy. It was also stated that there will be wider economic benefits, particularly as the marble is intended to be processed in Australia and then exported overseas.
I find that if the mining lease is granted and the marble on site is extracted and processed in the manner outlined by the grantee party that there will be economic and associated social benefits for the local economy of Greenvale and its surrounds. Clearly the proposed mine operations will be small scale and only limited employment will be generated. Nonetheless it will assist the local Greenvale economy, and insofar as the marble will be processed in Australia and then exported to overseas markets, it will provide some small benefit for both the Queensland and Australian economies.
Section 39(1)(e) – the public interest
Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income, and creates jobs and wealth for the Australian economy. Reference need only be made to the following observations of R D Nicholson J in Evans v Western Australia (1997) 77 FCR 193 at 215:
“Where there is evidence the proposed act will have the effect of contributing to on-going exploration essential to the health of the mining industry and the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry.”
The Tribunal accepts that the mining industry plays a pivotal role in maintaining Australia’s economic strength. The export income generated from mining is critical to the maintenance of Australia’s standard of living and its general economic health. However, despite the importance of the mining industry to local and State economies as well as the national economy, this does not mean that the other criteria in section 39 are in any way subordinated to this consideration. What is highlighted in the above quote of R D Nicholson is that it is permissible to have regard to the importance of a vibrant mining industry. What neither His Honour, nor numerous Tribunal determinations have ever said, is that this is the only consideration that needs to be factored in when making a section 38 determination, or that it is of greater significance to the other factors. Each of the criteria have to weighed independently having regard to the nature of the evidence presented.
The government party also contended that there were no objections to the grant of ML 10290, including on public interest grounds, lodged with the Mining Registrar in accordance with section 260 of the Mineral Resources Act 1989.
The grantee party also contended that Mr Cameron has sourced a Quarry Master from Italy who, it was claimed, was of world class standard. He will be training people on the operation and, it was said, offering world class skills in a relatively new industry in Australia thereby improving the skill base in a specialised but growing field of endeavour within the mining industry.
I conclude that the public interest will be served by the grant of the proposed future act.
Section 39(1)(f) – any other relevant matter
The term “any other matter” as used in section 39(1)(f) provides the Tribunal with a broad charter to take into consideration any matter lodged with the Tribunal that may of relevance in making a section 38 determination. There is no logical reason from the wording of the paragraph to read it down or to limit its operation by reference to either the matters outlined earlier in section 39 or to supposition in advance of what the negotiation parties actually submit. The only limiting factor is that the matter must be relevant to the inquiry. This paragraph does not give the Tribunal a charter to inquire into matters that fall outside the very narrow issue of whether the particular future act should or should not be done.
The main focus of section 39(1)(f) since the 1998 amendments has been on environmental concerns. In the Explanatory Memorandum to the Native Title Bill circulated by the Prime Minister the following statement is made:
“20.57 If there are particular environmental concerns which may need to be taken into account because of the particular effect on native title, the arbitral body retains the ability to consider them under paragraph 39(1)(f).”
The Tribunal has previously determined that environmental protection procedures and assessments can be taken into account when evaluating the impact of the proposed future act pursuant to the criteria outlined in section 39(1)(a) – WMC Resources v Evans (1999) 163 FLR 333 at 341.
However, in other matters the Tribunal has considered a broad range of issues. For example, in Victorian Gold Mines NL v Victoria (2002) 170 FLR 1 the Tribunal was presented with contentions that related to intra claim group disputes and the impact that these disputes should have on the final form of a determination.
The only material before the Tribunal requiring consideration that falls within this paragraph are the contentions of the government party. It was submitted that the Tribunal should have regard to the operation of the Mineral Resources Act 1989, the Aboriginal Cultural Heritage Act 2003 and the Environmental Protection Act 1994.
In particular it was contended that the Tribunal take into account that a draft environmental authority was issued to the grantee party on 8 September 2004 which was publicly advertised and attracted no objections from any member of the public. Following this, a standard environmental authority (mining activities) was issued on 14 July 2004, which type of authority is only issued to mining operations which have been assessed to have a low risk of serious environmental harm. The grantee party is required to comply with each of the Standard Environmental Conditions contained in the Code of Environmental Compliance for Mining Lease Projects which were set out earlier in this determination. It was contended by the government party that given the State’s legislative regime in relation to land management and indigenous cultural heritage it would not be necessary for the Tribunal to impose any conditions under section 38 on the grantee party.
I accept that the extraction of marble by the grantee party will be subject to Queensland’s comprehensive and integrated mining, environmental management and cultural heritage regime. Earlier in this determination I set out at some length the controls and protections mandated by the various pieces of legislation and subordinate legislation on mining operations. I have taken these controls and protections into account when considering to what extent the future act poses a risk to the enjoyment of the registered rights and interests of the native title party and generally to the land and waters of the subject area.
Conclusion
In making a determination pursuant to section 38(1) the Tribunal is required to carefully weigh up the factors outlined in section 39 based on the evidence lodged. It is, as has previously been stated, the exercise of a discretionary power.
In Western Australia v Thomas (1996) 133 FLR 124 the following observations were made (at 165-166):
“We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the wider community to pursue mining and the interests of the Aboriginal people concerned. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination.”
In this inquiry I have no evidence from the native title party with respect to the matters required to be considered in section 39.
The absence of any contentions from the native title party necessarily has had an adverse impact on the capacity of the Tribunal to evaluate the section 39 criteria. In some instances it has proved not possible for the Tribunal to evaluate a factor. For example, I have been provided with no information on how members of the Gugu Badhun People enjoy their registered native title rights and interests on the subject land and waters. Further, no information was placed before the Tribunal on the interests, proposals, opinions or wishes of the native title party on the management, use or control of the subject land.
The absence of any contentions from the native title party is a matter of concern and disappointment. The Tribunal has attempted, to the best of its ability, to structure proceedings and make contact with the persons comprising the applicant as well as the relevant representative body, in an endeavour to facilitate the participation of the native title party in these proceedings. Ultimately, despite the Tribunal’s best efforts, the native title party has chosen not to participate in these proceedings.
The lack of participation of the native title party does not constitute a bar on the Tribunal proceeding and making a determination. If it did, then any negotiation party could deliberately absent themselves from proceedings and exercise a de facto veto on the Tribunal making a determination. This is not only contrary to the clear scheme of the Act but contrary to the public interest in the Tribunal pursuing its functions in a “fair, just, economical, informal and prompt way” – section 109.
As stated earlier in this determination the Tribunal is required by section 39 to evaluate the enumerated criteria. The Tribunal is best able to do this when presented with carefully reasoned contentions supplemented, when necessary, by oral evidence. However, the Tribunal will carry out its evaluation on the evidence submitted. If that evidence is scant, then clearly the evaluation will be scant. But it will, nonetheless be an evaluation and it will lead to a determination. If for example, a native title party chooses not to participate, then it is likely (but by no means inevitable) that the Tribunal will make a recommendation that the future act be done with or without conditions.
The uncontested evidence submitted by the government and grantee parties leads to the following key conclusions:
(a)the proposed marble mine will generate a small number of employment opportunities;
(b)the marble extracted will be processed in Australia and exported to overseas markets;
(c)the mine will have a positive impact on the local economy, and may assist in helping the economy of Greenvale;
(d)the export of black marble will play a very small but positive part in Australia’s overall mining industry and balance of trade;
(e)Queensland has in place a well integrated mining and environmental protection regulatory regime;
(f)The operation of the relevant mining, environmental and cultural heritage laws will go some way towards ameliorating any adverse impacts of the proposed marble mining;
(g)There is no evidence that the subject land contains any sites of cultural significance;
(h)There is no evidence that the subject land is regularly accessed by members of the native title claim group;
The subject land is not fenced and the grantee party has expressed an intention not to fence the perimeter of the subject land;
(j)The proposed mine will only take up a small proportion of what is, in any event, a very small tenement area;
(k)There is no evidence that the subject land has any endangered plant or animal species;
(l)There is no evidence that the subject land contains any areas of environmental significance.
(m)The grantee has indicated that he will not be mining with the aid of explosives or chemicals;
(n)The subject land has been the subject of numerous previous tenement grants;
(o)The subject land forms part of a pastoral holding and the operation of that pastoral holding will have had an impact of some nature, on the ability of the native title party to engage in traditional activities. Regard also must be had to the operation of section 44H that any activities “carried out in accordance with rights and interests granted under a lease” prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish native title rights and interests – see De Rose v South Australia (No 2) (2005) 145 FCR 290 at 334; and
(p)There were no public objections lodged when the draft environmental authority was issued to the grantee party by the government party on 8 September 2003.
As previously indicated these undisputed facts, taken together with other material, and applied to the various factors in section 39, lead to the conclusion that the proposed future act can be done without the imposition of conditions.
Determination
The determination of the Tribunal is that mining lease ML 10290 to Robert Bond Cameron may be done.
John Sosso
Member
30 January 2006
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