Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area - [2009] NNTTA 137

NATIONAL NATIVE TITLE TRIBUNAL

Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, [2009] NNTTA 137 (28 October 2009)

Application No: NF09/1

IN THE MATTER of the Native Title Act1993 (Cth)

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

Coalpac Pty Ltd (Applicant/grantee party)

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The State of New South Wales (Government party)

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North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area (NC09/1) (native title party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Sydney
Date:  28 October 2009

Catchwords: Native title – future act – application for determination for the grant of mining lease – native title party split into two factions – no contentions or evidence submitted by the native title party – determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 24MD, 29, 30, 31(1)(b), 35, 36, 38, 39, 42, 75, 76, 77, 139(a), 151(2), 238
Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) ss 9, 10
Environmental Planning and Assessment Act 1979, Part 3A
Mining Act 1992 (NSW), Part 14
National Parks & Wildlife Act 1973 (NSW), Part 6

Cases:Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), NNTT QF05/3, [2006] NNTTA 3 (30 January 2006), John Sosso
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21
Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, NNTT NF09/1, [2009] NNTTA 133 (19 October 2009), Hon C J Sumner
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006), Hon C J Sumner
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333

Solicitor for the
grantee party: Ms Georgia Denisenko, Just Outcomes

Solicitors for the Mr Peter Gore, Gore & Associates
native title party factions: Mr Philip Teitzel, Teitzel & Partners

Solicitor for the
Government party: Ms Sophia Illiadis, NSW Crown Solicitor’s Office

Counsel for the
Government Party: Mr John Waters, Windeyer Chambers

REASONS FOR FUTURE ACT DETERMINATION

Background

On 18 December 2008 the State of NSW (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the proposed grant of mining lease application MLA324 (‘the proposed lease’) under the Mining Act 1992 (NSW) to Coalpac Pty Ltd (‘the grantee party’). The proposed lease covers an area of 418 hectares situated approximately 7 kilometres east north-east of Portland in the Lithgow Local Government area. The notice specifies that the lease would authorise the mining of coal by open cut and highwall mining methods and be granted for a term of 21 years.
The original s 29 notice was subsequently amended on two occasions. The grantee party informed the Tribunal that on 13 January 2009 they wrote to the Government party requesting that a variation to the proposed mining lease area be made. The variation involved the excision of 11 hectares from the south east corner of MLA324 and the grantee party identifying the following as reasons for the excision.

It was an area controlled by the Sydney Catchment Authority and would have required unnecessary administration complications.
It was subject to NSD6060/1998 Gundungurra Tribal Council Aboriginal Corporation #6, a registered native title determination application.
No mining operations were proposed over any of the area.

The variation was accepted by the Government party on 15 January 2009. The s 29 notice was not reissued as the excision patently amounted to a reduction in the area of the proposed mining lease.
On 16 June 2009 the Tribunal advised the grantee party that a small overlap between MLA324 and NSD6060/1998 remained. On 24 June 2009 the grantee party requested a further excision to MLA324. On 29 June 2009 the further variation was accepted by the Government party.
On 17 March 2009 the North Eastern Wiradjuri People of the Bathurst/Lithgow/ Mudgee area (‘the native title party’) filed a native title determination application in the Federal Court in response to the s 29 notice. The application, NSD216/2009, is what has become known as a ‘polygon’ application or claim which solely covers the proposed mining lease area and was filed within a three month period of the future act notice being given as required by s 30(1)(a)(i) of the Act.
The applicant in the matter jointly comprises Mr William (Bill) Allen, Ms Ester Cutmore, Ms Wendy Lewis, Ms Lynette Syme, Ms Elaine Bugg and Mr Martin De Launey.
The application is made on behalf of the North Eastern Wiradjuri People of the Bathurst/Lithgow/Mudgee area being all the descendents of Thomas Governor, Aaron, Phillips Rayner, Windradyne, Dianna Mudgee, Sophia Allsopp, Peggy Lambert, Jimmy Lambert, John Bloodsworth, Thullagumaulli, Penagraa (also known as Penaguin). The solicitor on record in the Federal Court is Gore & Associates (Mr Peter Gore).
On 17 April 2009 a delegate of the Native Title Registrar accepted the application for registration. The native title application was registered within the four month period of the future act notice being given and so the registered native title claimant is a ‘native title party’ within the meaning of s 30(1) of the Act with status as a negotiation party under the right to negotiate provisions of the Act.
On 14 July 2009, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application indicated that the negotiation parties had not been able to reach agreement to that date and therefore Coalpac was initiating proceedings with the Tribunal for a determination in relation to the issue of the mining lease.
At a preliminary conference on 3 August 2009 I made directions for the conduct of the inquiry which required the provisions of contentions and evidence by the Government and grantee parties on 31 August 2009 (Direction 1) and by the native title party on 28 September 2009 (Direction 2). The parties were to inspect documents and confer with a view to agreeing the issues, facts and procedures for the conduct of the inquiry by 9 October 2009 (Direction 3), with a listing hearing on 9 October 2009 (Direction 5) and a hearing in the week of 26 October 2009 (Direction 6). Mr Gore appeared for the native title party with two persons named as part of the applicant for native title, Mr Bill Allen and Ms Lynette Syme. No challenge was made by the native title party as to whether the Government and grantee parties had negotiated in good faith with the native title party (s 31(1)(b) and 36(2)) and the Tribunal decided it had power to conduct the inquiry and make a determination.
Unfortunately a dispute has arisen within the native title party which is reflected in the native title claim group and resulted in the formation of two factions being:

Bill Allen, Esther Cutmore, and Elaine Bugg represented by Philip Teitzel of Teitzel & Partners; and
Wendy Lewis, Lynette Syme and Martin de Launey represented by Peter Gore of Gore & Associates.

At a directions hearing on 9 September 2009 I refused an application by Mr Teitzel to re-open the issue of whether or not good faith negotiations had occurred and to vacate the directions. Reasons for this decision and other procedural matters relating to the inquiry were published (Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, NNTT NF09/1, [2009] NNTTA 133 (19 October 2009), Hon C J Sumner (‘the preliminary decision’). The Tribunal decided that the native title party is the persons named as part of the applicant for native title and registered native title claimant acting jointly and that the individual persons comprising the native title party were not entitled to separate representation at the inquiry.
The grantee party filed its contentions and evidence on 31 August 2009 and the Government party its contentions on 3 September 2009 and documentary evidence on 9 September 2009.
Because of the factional problems within the native title claim group and in an attempt to facilitate the provision of any contentions and evidence from members of the native title party the Tribunal provided correspondence and copies of the contentions and evidence of the Government and grantee parties directly to each of the six named persons who comprise the native title party and to both solicitors representing the two factions on 16 September 2009. The correspondence indicated that if the native title party was unable to comply with the directions, the Tribunal may decide to proceed on the basis of the contentions and evidence provided by the other parties.
On 28 September 2009 the Tribunal received correspondence from Ms Elaine Bugg which related to the issue of whether good faith negotiations had occurred. Ms Bugg did not address the issues required by the directions dated 3 August 2009. In particular no contentions were made with regard to how the grant of the proposed mining lease would affect the native title party’s enjoyment of their registered native title rights and interests, and other matters set out at s 39(1)(a) of the Act.
On 29 September 2009 in correspondence to the Tribunal Coalpac made the following points.

No contentions had been provided by the native title party.
The grantee party has a longstanding relationship with the native title party as evidenced by two existing section 31 agreements and associated ancillary agreements. They state that they will continue to liaise positively with the native title party.
The project will provide economic and social benefits for the region.
The project will provide direct employment for approximately 35 people.
The project will create flow-on economic benefits to the local townships of Cullen Bullen, Lithgow, Portland, Lidsdale and Wallerawang and generate substantial royalties for the State of NSW.
For reasons the subject of a non-disclosure direction the Tribunal should consider any avenues within its power to bring the matter to its earliest possible conclusion.

On 30 September 2009, the Tribunal provided a copy of the correspondence received from Ms Elaine Bugg and Coalpac to each of the six persons named as part of the native title party, Messrs Gore and Teitzel and the Government party and advised that the Tribunal intended to proceed to make a determination based on the contentions and evidence which had been submitted by the parties, while noting that no substantive contentions or evidence had been provided by the native title party. The Tribunal advised that as a consequence it did not require compliance with Directions 4, 5 and 6 of the Directions made on 3 August 2009 and would proceed to make a determination on the papers, without the need for a hearing (s 151(2)(b)). I am satisfied that the matter can be adequately determined in this way.
On 1 October 2009 the Tribunal received correspondence from Mr Peter Gore confirming that he held no instructions to lodge any submissions in relation to this matter.

In addition to the specific factors relevant to this matter outlined in the preliminary decision, the Tribunal has relied on the principles involved in making a determination in the absence of evidence from the native title party enunciated in a number of future act determinations including:

Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), NNTT QF05/3, [2006] NNTTA 3 (30 January 2006) (‘Gugu Badhun’) (DP Sosso esp at [15]-[17])
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006) (‘Griffin Coal’) (DP Sumner esp at [7]-[10])

Following acceptance of a future act determination application (ss 75, 76, 77) the Tribunal ‘must’ hold an inquiry into it (s 139(a)); ‘must make a determination that the act must not be done or may be done with or without conditions’ (s 38(1)); and in making its determination ‘must’ take into account certain criteria set out in s 39. Despite the cost and inconvenience to the other parties, and the Tribunal, in a situation where the native title party decides not to participate in the proceedings, I am of the view that the provisions impose an obligation on the Tribunal to give proper consideration to the factors in s 39 and that a future act determination cannot be made in a more summary way. However, it is self-evident that without the benefit of contentions and evidence from the native title party, it is likely that a determination will be made that the act may be done. Proper consideration of the criteria in s 39 will almost certainly require evidence of which only the native title party is aware, about the effect of the proposed future act on their enjoyment of the registered native title rights and interests (s 39(1)(a)(i)), sites of particular significance (s 39(1)(a)(v) and other criteria. It is also impossible to take account of the interests, proposals, opinions or interests of the native title party (s 39(1)(b)) where there is no evidence of them (Griffin Coal at [7]-[8]).
The Tribunal has previously considered the nature of a future act determination inquiry and its approach to evidence (see Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’) at 154-163). The Tribunal must act on the basis of relevant and probative evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence which means that parties will produce evidence to support their contentions particularly where facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence the Tribunal is normally entitled to proceed to make a determination without it (Gugu Badhun at [17]). In the present case there are particular reasons why the native title party itself is not represented at this stage of the proceedings, arising from the serious split among the persons comprising the applicant for native title and the claim group, more fully explained in the preliminary decision. It is also the case that the two factions have been legally advised. Based on past practice and for the reasons canvassed in the preliminary decision I am satisfied that the Tribunal is entitled to proceed without the benefit of contentions and evidence from the native title party.

General background to proposed mining lease MLA324

The key features of the Invincible Colliery Coal Mine Extension Project (‘the Project’) of which MLA324 is a part are described in the affidavit of Dr Ian Follington, Chief Executive Officer of Coalpac dated 31 August 2009 and can be summarised as follows. The evidence is uncontested and I accept it.

Coalpac owns and operates the Invincible Colliery Mine located in the Western Coalfield of NSW, approximately 20km northwest of Lithgow and near the township of Cullen Bullen.
Coalpac is also the owner of the neighbouring Cullen Valley Mine which it acquired when it purchased the Lithgow Coal Company in February 2008. Coalpac operates both mines, which coalesce as a single complex with shared staff and management. The Cullen Valley Mine is an open cut operation with extensive reserves and as such underpins Coalpac’s long term coal supply contracts to the nearby power stations owned by Delta Electricity.
The Invincible Colliery Mine commenced operations in 1905 as an underground mine and operated continuously, variously as both an underground and open cut mine, until Coalpac acquired it in 1989 and continued to operate it as an underground operation until 1998. Coalpac then started a small open cut operation on site which operated until 2001. The coal processing plant continued to operate until 2002. Coalpac received Ministerial project approval to extend this operation in September 2006 and produce up to 350,000 tonnes of saleable coal per year via open cut methods, and with transportation via public roads to local power stations and other domestic customers.
Modifications to the approval were granted by the State of NSW in June 2007 and December 2007, allowing the washing of coal on site, and the introduction of auger mining and an increase in saleable coal production to 500,000 tonnes per year.
Coalpac has utilised open cut and auger mining methods to extract virtually all coal reserves from the existing surface mining lease (ML1434) which is now almost exhausted. To meet contractual commitments to local power stations it now needs to significantly expand open cut and auger mining on the site into areas were Coalpac has identified additional coal reserves. In November 2008, Coalpac applied for MLA324 to achieve this objective.
Coalpac’s application for MLA324 is a vital component of the Invincible Colliery Coal Mine Extension Project.
MLA324 is composed of part of Ben Bullen State Forest (86%) and Coalpac privately owned land (approximately 11%).
The geographical boundary of MLA324 encompasses a range of tenements comprising the existing mine, most of which are held by the grantee party.
The extension areas which are proposed are adjacent to the pre-existing open cut areas. MLA324 is not a mining lease application over ‘new’ areas of land. One of its purposes is to consolidate and make uniform, over much of the MLA324 area, all of the various tenements and different depth restrictions that apply.
The proposed extension to the Invincible Coal Mine will utilise open cut and auger mining techniques to increase product coal from 500,000 to 900,000 tonnes a year, for up to 8 years. The Project is based on a coal reserve of approximately 7 million tonnes. Coal would be processed on-site and then transported by road, principally to local power stations. However all additional coal associated with the increased rate of production (ie extra 400,000 tonnes a year) would go to Mount Piper Power Station.
Key infrastructure is already in place at the mine, including coal processing facilities, workers amenities and water management infrastructure.
An additional 20 full-time employees are expected, with continued employment available for the current approximate 15 staff.
The project has a capital investment value of $4 million.
The Project includes the backfilling and rehabilitation of all open cut disturbance with native woodland vegetation and the implementation of a biodiversity offset strategy, involving the enhancement and/or preservation of approximately 104 hectares of adjacent lands and the additional rehabilitation of 6 hectares of derelict mine void to offset the clearing of 54 hectares of mostly good quality native vegetation.

The Project is classified as a major project under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) and therefore the NSW Minister for Planning is the approval authority for the Project.
An ‘Environmental Assessment of the Proposed Extension to the Invincible Colliery Open Cut Mine and Production Increase’ (April 2008) was prepared for the grantee party by R.W. Corkery & Co Pty Ltd, Geological & Environmental Consultants. It included a Draft Statement of Commitments made by Coalpac. It was made publicly available by the NSW Department of Planning from May-June 2008.
On 1 December 2008 the Director-General of the NSW Department of Planning recommended approval of the Project. His findings are set out in the report entitled ‘Major Project Assessment: Invincible Coal Project’, dated December 2008. On 4 December 2008 the Minister for Planning approved the Project to be carried out generally in accordance with the Environmental Assessment; Statement of Commitments; and conditions of the approval.

Legal principles

I rely on the principles enunciated in the following Tribunal future act determinations:

Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (‘Koara 1’);
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (‘Evans’). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (‘Koara 2’) – Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’); and
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’).

Section 38 of the Act sets out the types of determination that can be made; these are a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party, see s 38(2).
Section 39 lists the criteria for making such a determination:

(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)     any public interest in the doing of the act;
(f)     any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

Of the claimed native title rights and interests the following have been registered.
‘Over areas where a claim to exclusive possession cannot be recognised, the following rights and interests are registered:
(a)     the right to access and move about the land.
(b)    the right to hunt and fish, to gather and use the resources of the land and waters such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax, and to have access to and use of water on or in the land and waters.
(c)     the right to live, being to enter and remain on the land, to camp and erect temporary shelters and other structures for that purpose, and to travel over and visit any part of the land and waters.
(d)    the right to do the following activities:
(i)engage in cultural activities on the land;
(ii)conduct ceremonies;
(iii)teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;
(iv)participate in cultural practices relating to birth and death, including burial rights; and
(v)record, conserve, maintain and curate sites and activities arising in subparagraphs (i) to (iv) above.
(e)     the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements.
In relation to the flowing, tidal and underground waters of the claim area the following non-exclusive rights are registered:
(a)     hunt, gather and fish on, in and from the flowing, tidal and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes; and
(b)    take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes.’

If any native title rights and interests are determined to exist they will not be extinguished by the grant of the proposed lease as the non-extinguishment principle applies to it. Any inconsistent native title rights and interests are suppressed during the currency of the mining lease (ss 24MD(3)(a), 238).
For the purposes of the right to negotiate provisions of the Act, determined and claimed and registered native title rights and interest are treated as being on the same footing. Claimed and registered native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (see Waljen at 166 – 167 and WMC/Evans at 339 – 341). In other words a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole claim area just by virtue of their registration. There is no evidence from the native title party as to past, current or potential exercise or enjoyment of native title rights and interests in the area of land the subject of the proposed mining lease.
The Government and grantee parties have provided evidence that MLA324 includes lands that have been the subject of prior grants of rights and interests and assertions of control. These grants have previously impacted on the ability of the native title party to carry out their registered rights and interests on the land subject of the proposed mining lease. The Government party has provided tenure information and maps for the proposed mining lease area which confirms the evidence provided by Mr Follington referred to above about the past and ongoing use of the area of MLA324. The area is subject to the following grants.

Lot 113, DP 877190 which is contained within MLA324 is held in fee simple by the grantee party and therefore native title has been extinguished.
There are four mining leases which fall entirely within the area of MLA324, the earliest of which was granted on 24 November 1967 and expires on 24 November 2024.
There are two consolidated coal leases which partially cover and are adjacent to MLA324.
There is one petroleum exploration licence within MLA324, granted on 8 July 2008 and expiring on 8 July 2011 which allows for drilling and seismic surveys to be conducted.

There is no evidence upon which to base a finding that the enjoyment of the native title party’s registered native title rights and interests will be affected by the mining activities proposed to be undertaken pursuant to MLA324. I accept the Government and grantee parties’ submissions that the various previous valid grants, interests and assertions of control and previous and present activities (including long standing coal mining on the area of the proposed mining lease and areas in the vicinity of it) would in any event have resulted in the serious diminution in the enjoyment of any native title rights and interests that might exist and be recognised over the area.
This finding and the reasons for it are equally applicable to the s 39(1)(a)(ii), s 39(1)(a)(iii) and s 39(1)(a)(iv) criteria.

Section 39(1)(a)(ii) – way of life, culture and traditions

Section 39(1)(a)(iii) – development of social, cultural and economic structures

There is no evidence upon which to base a finding that there will be any effect from the proposed mining lease on these factors

Section 39(1)(a)(iv) – freedom of access – freedom to carry out rites/ceremonies

There is no evidence of the native title party having access to or carrying out any rites, ceremonies or other activities of cultural significance on the land subject to the proposed mining lease. Part of the area is fenced and/or barricaded with felled timber to limit public access for safety and security reasons. The grantee party indicates that it is willing to grant the native title party access to restricted areas or to the areas of privately held land within the external boundary of MLA324 provided adequate notice is given and it is safe to enter those areas. Had the native title party provided any evidence relating to its current enjoyment of native title rights and interests, access to land or conduct of rites and ceremonies in support of its desire for access to the area it may have been appropriate to impose a condition requiring the grantee party to allow it in some circumstances. The evidence does not support such a condition in this case.

Section 39(1)(a)(v) – sites of particular significance

No evidence has been provided by the native title party of any sites of particular significance to the native title party in accordance with their traditions. A relevant site is one of special or more than ordinary significance (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21 at 34-35). The fact that an Aboriginal site exists within an area of a registered claim does not necessarily lead to a conclusion that it is a site of particular significance to a native title party in accordance with their traditions. The Tribunal will consider the nature and location of the site and any evidence relating to its special nature for the relevant native title party. For instance, if it is a commonly occurring artefact scatter it may not have the same level of significance as a mythological site with important and culturally restricted stories related to it.
The Environmental Assessment of the Project contains a section on Cultural Heritage including Aboriginal Heritage (Chapter 4.5). The Environmental Assessment summarises the findings of the ‘Ecological/Aboriginal Heritage Assessment’ of the Project prepared by OzArk Environmental & Heritage Management Pty Ltd (April 2008) which is one of the specialist consultant studies relied upon.
A search of the Aboriginal Heritage Information Management System (AHIMS) database of the Department of Environment and Climate Change (DECC) revealed that there were 46 recorded sites within a 20 kilometre by 20 kilometre radius of the Invincible Colliery with all but one site within 10 kilometres by 10 kilometres of it. Most of these were open camp sites. There have been previous surveys of the area immediately surrounding the Project area which did not identify any Aboriginal artefacts or sites.
On 7 and 8 June 2007 an archaeologist conducted a field survey of the area to be disturbed by the Project in the company of Richard Peters (the Sites officer of the Bathurst Local Aboriginal Land Council) and Donna Whillock and Wendy Lewis of Warrabinga Native Title Claimants Aboriginal Corporation. Ms Lewis is one of the persons who comprise the applicant for native title and native title party. No Aboriginal artefacts or sites were located within the area of the proposed open cut mine extension but a single large site complex was recorded in close proximity to it.
This site is a large 0.5 hectare open camp site and artefact area. The site has been formally recorded on the AHIMS as ‘Aboriginal Heritage Site Invincible OS1 (ID 45-1-2688)’. A recent search has confirmed that this site is the only Aboriginal object or place which is recorded on or near the MLA324 area. Although the site is not within the footprint of the proposed mining operations the grantee party has fenced it, prohibits unauthorised access to the area and is committed to managing it in accordance with the Aboriginal representatives who attended the survey.
On 17 June 2007, Mr Richard Peters advised Coalpac by letter that the Bathurst Local Aboriginal Land Council had no objection to Coalpac commencing work within certain of the survey areas.
The approval of the Minister for Planning includes the following conditions expressly directed to this site.
‘Management of Aboriginal Heritage Site Invincible OS1
39. The Proponent must prevent any further disturbance to the Aboriginal heritage site Invincible OS1, unless:
(a)Detailed justification for the disturbance is provided to the Director general; and
(b)The disturbance is undertaken in accordance with the procedures recommended by the Bathurst Local Aboriginal Land council inn its letter of 17 June 2007 and reproduced in the EA [Environmental Assessment].’
‘Aboriginal Heritage Management Plan
40. The Proponent shall prepare and implement an Aboriginal Heritage management Plan for the project to the satisfaction of the Director General. The plan must:
(a)Be prepared in consultation with DECC and the Aboriginal community;
(b)Be submitted to the director General for approval prior to carrying out any open cut mining operations under this approval; and
(c)Include a
- Program for the recording, salvage and surface collection of any Aboriginal objects/sites that may be encountered within the project area.
- Description of the measures that would be implemented if any Aboriginal skeletal remains are discovered during the project; and
- Protocol for the ongoing consultation and involvement of the Aboriginal community in the conservation and management of the Aboriginal heritage of the objects/sites.’
In addition Coalpac’s Statement of Commitments made as part of the Environmental Assessment process and incorporated as a condition of the Minister’ approval includes:
‘8.     Cultural Heritage
Desired Outcome:         Provide appropriate protection to identified Aboriginal artefacts.
Commitment:      8.1.    Construct a fence around the site “Invincible OS1” and identify this as a culturally sensitive area at the site and on all mine plans.
Timing: Prior to commencement of the project.
Commitment:      8.2     Manage drainage in the vicinity of the site such that it would not be subject of flooding.
Timing: Ongoing.
Commitment: 8.3 Inform all site personnel of the presence of the site and their obligations under the National Parks and Wildlife Act 1974 in relation to site protection.
Timing: prior to the commencement of construction
Desired Outcome:         Minimise potential to impact upon unidentified Aboriginal artefacts.
Commitment:      8.4.    Cease work at any area if further Aboriginal objects are uncovered during the course of the project, and contact the DECC (NPWS) for advice,
Timing: ongoing.
Desired Outcome:         Employees who are sensitive and respectful of possible identified Aboriginal sites and artefacts.
Commitment:      8.5.    Conduct a Cultural heritage Awareness Induction Course for staff, contractors and any heritage monitors working on the project site.
Timing: ongoing.’
The exercise of Coalpac’s rights pursuant to MLA324 are also subject to the provisions of Part 6 of the National Parks & Wildlife Act 1973 (NSW) which includes provisions for the protection of Aboriginal places and relics. There is also the potential for protection to be supplemented by the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) (ss 9 & 10).
Dr Follington’s evidence is that the various Aboriginal site surveys have covered most of the MLA324 area but there is a small area where surface excavation is proposed which was not covered in the survey conducted in 2007. He says that in line with the Coalpac Aboriginal Heritage Management Plan which is required as a condition of the approval, this remaining area will be surveyed prior to the commencement of any excavation works.
I find that the mining activities carried out pursuant to the grant of MLA324 will not affect any sites of particular significance to the native title party in accordance with their traditions. There is no direct evidence from the native title party on the significance of site Invincible OS1 and no basis for drawing any inference that it is a site of the relevant kind. There is no evidence of the traditions of the native title party to support a finding about the site’s significance. There is no contemporary anthropological evidence of any stories, dreaming or ceremonies (past or present) relating to the site. There is archaeological evidence of a past Aboriginal camp site which, without more, does not qualify it as of particular significance to the native title party.
Although Wendy Lewis, one of the named applicants participated in the site survey nothing is recorded from her or the other Aboriginal participants to suggest a significance beyond the ordinary for this site. The split in the claim group and the fact that they have been unable to agree on evidence for this inquiry also suggests there are no special features of the site.
In any event, even if it had been a site of the relevant kind I do not think it would be interfered with by the mining as, although within the area of MLA324, it is outside the area of the proposed open cut mining extension as currently proposed. It is highly unlikely that there is any other relevant site on the area of MLA324 which could be affected. With respect to Aboriginal sites generally the relevant legislation and conditions imposed relating to Aboriginal cultural heritage should minimise the chance of interference with any of them found to exist.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters

There is no evidence of any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the area of land the subject of the proposed mining lease that can be taken into account.

Section 39(1)(c) – economic or other significance

Both the Government party and the grantee party provide information regarding the economic benefits to the community of the grant of the proposed mining lease. The Government party sets out the following consequences from the granting of MLA324.

An increase in the production of saleable coal.
Ongoing employment for existing employees of the colliery and, indirectly, for suppliers and contractors and their employees and through the injection of stimulus to the local economy, for employees of businesses in the region.
Additional tax revenue for the Australian Government (from Coalpac and from businesses and individuals who derive income from the colliery’s operation).

Additional royalties payable to the State under Part 14 of the Mining Act 1992 (NSW).
Flow on effects to the regional, state and national economy.
Availability of coal for electricity generation to meet the needs of businesses and households of New South Wales and Australia.

I accept that the evidence supports a finding that the Project will result in these beneficial consequences. However, in the absence of more specific evidence I do not accept the Government party’s contention that it can be established that the native title party, as part of the local and national community, will necessarily participate in the economic benefits that will flow from the grant of MLA324, however it is possible that some of them may do.
The Executive Summary of the Environmental Assessment contains the following ‘Conclusions’ in relation to the Project (at p xxiii).
‘CONCLUSIONS
The proposed extension of the Invincible Colliery open cut mine and production increase has been designed to maximise the recovery and production of coal whilst minimising the impacts on the local environment and neighbouring properties. Following the implementation of a number of operational controls, safeguards, mitigation and offset measures, several minor impact on the local environment have been predicted.
While the Project would have some impacts on the local environment, it would also provide social and economic benefits to the local and regional communities. These include:
·the continued supply of coal to local power stations and export markets;
·the continuation of fulltime employment for at least 15 people;
·the continued economic contribution to the local and regional economy (which in the 12 months between October 2006 and October 2007 was approximately $17m);
·the stimulus to local associated and ancillary businesses;
·the payment of taxes and royalties to the NSW government; and the long-term conservation of native vegetation.
Considering the predicted positive and negative impacts of the Project, it is concluded that the predicted impacts associated with the Project are acceptable and the Project is ultimately in the public interest as it would provide for:
·a necessary operation for the continued prosperity of NSW, ie. Coal recovery for power generation, which is ideally situated in close proximity to the Mt Piper Power Station and within an established coal mining district;
·well managed operations which would minimise impact on the local environment;
·the long term conservation of important native vegetation communities and species; and
·ongoing economic contributions to the local, regional and NSW economies.
Therefore, when comparing the benefits of the Project with the potential adverse impacts, it is concluded that the Project is in the public interest and considered appropriate for approval.’
These conclusions are consistent with the other evidence produced for the inquiry and I accept them. The Director-General of the Department of Planning (Environmental Assessment Report, December 2008 - Executive Summary) agreed with this assessment and concluded that on balance the potential benefits of the Project outweigh its potential costs and that it is in the public interest and should be approved, subject to conditions.

Section 39(1)(e) – public interest

The Tribunal is entitled to have regard to the views of the Government of New South Wales and particularly those of the Minister that the public interest is served by the Project proceeding. There are no countervailing considerations of a native title kind. Taking all the evidence into account I am satisfied that there is a public interest in the doing of the act.

Section 39(1)(f) – any other relevant matter

The Tribunal is entitled to have regard to any environmental assessment and controls imposed that may assist to ameliorate the effect of the future act on some of the factors in s 39(1)(a) (Griffin Coal at [39]). Because of the lack of evidence from the native title party it is impossible to consider the environmental controls as they relate to the factors in s 39(a) in any specific way. Nevertheless, I accept the grantee party’s contention that the conditions that form part of the Minister’s approval for the Project demand a high level of compliance from the grantee party with respect to a number of matters that may be of concern to the native title party, including: the preparation of an Environmental Management Strategy and Annual Report (covering noise, air quality, soil and water, traffic and transport, greenhouse gas); Aboriginal heritage; monitoring, auditing and reporting and particularly the implementation of a Biodiversity Offset Strategy involving the preservation of existing native vegetation and the restoration of native woodland in the long term; and a requirement to progressively rehabilitate the area mined.

Section 39(2) – existing non native title rights and interests

For the reasons already given I have had regard to the existing non native title rights and interests which will already have had an adverse impact on the enjoyment of native title and other matters dealt with in s39(1)(a).

Conditions

There is no evidence to justify the imposition of any conditions on the determination. In particular, there is no evidence to justify a condition for a bank guarantee (s 42(5)) or an amount of money to be paid into trust (s 42(5B)) on account of any future claim for compensation. Any right to claim compensation for the affect of this future act on native title rights and interests could be pursued under the Act or applicable State legislation (s 24MD(3)(b)) if the native title party is successful in obtaining a determination of native title.

Conclusion

It is regrettable that the native title party did not provide evidence to the inquiry despite having made a native title claim and obtained registration specifically for the purpose of obtaining the right to negotiate in relation to MLA324. The split in the native title party has deprived them of any say in relation to the grant and any potential benefits that may have flowed to them. It has resulted in the right to negotiate provisions of the Act not operating in the manner that was intended.
The task of the Tribunal in making a determination is a discretionary one which involves weighing the various factors in s 39 based on the evidence produced (Waljen at 165-166). The failure of the native title party to produce any evidence means that this exercise has only involved an assessment of evidence from the Government and grantee parties. I am satisfied that the Project will have beneficial economic significance at least for the local community and New South Wales, and that the public .interest is served by the grant.
The history of coal mining over the specific area of MLA324 and in the general vicinity will have seriously disrupted the capacity of the native title party to enjoyment of any native title rights and interests which may have existed. Native title will not be extinguished over the area and at the conclusion of mining rehabilitation of the land is required. There is evidence of only one Aboriginal site, which the evidence does not establish as one of particular significance to the native title party, but which in any event is not likely to be affected by the proposed mining activities.

Determination

The determination of the Tribunal is that the act, namely the grant of mining lease MLA324 to Coalpac Pty Ltd, may be done.

C J Sumner
Deputy President
28 October 2009