Dragutin Horvatic/Scott Gorringe & Ors (Mithaka People)/Queensland - [2010] NNTTA 119

NATIONAL NATIVE TITLE TRIBUNAL

Dragutin Horvatic/Scott Gorringe & Ors (Mithaka People)/Queensland, [2010] NNTTA 119 (2010) (4 August 2010)

Application No: QF10/9

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

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IN THE MATTER of an inquiry into a Future Act Determination Application

Dragutin Horvatic (grantee party)

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Scott Gorringe, Lorraine McKellar, Ada Martin, Richard McCarthy, Jocelyn Haylock, Rose Turnbull on behalf of the Mithaka People

(native title party)

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State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 4 August 2010

Hearing dates: 11 June and 7 July 2010

Representatives:

Native Title Party: Scott Gorringe, Lorraine McKellar, Ada Martin, Richard McCarthy, Rose Turnbull (in person and by phone)
Grantee Party: Mr Dragutin Horvatic

Government Party: Ms Jacinta Dwyer, State of Queensland

Catchwords: Native title – future act – application for determination for the grant of mining lease – determination that the act may be done.

Legislation: Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 28

Environmental Protection Act 1994 (Qld)
Mineral Resources Act 1989 (Qld) ss 245, 276
Mineral Resources Regulation 2003 (Qld) s 18
Native Title Act1993 (Cth), ss 24MD, 29, 30A, 31, 32, 35, 38, 39, 75, 77, 238

Cases:Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46
Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF05/3 [2006] NNTTA 3 (30 January 2006) Member Sosso
Cheinmora v Striker Resources NL (1996) 142 ALR 1
Coalpac Pty Ltd/New South Wales/North Eastern Wiradjuri People of Bathurst, Lithgow, Mudgee area NF09/1 [2009] NNTTA 137 (28 October 2009) Deputy President Sumner
Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 (13 February 2003) Deputy President Sumner
Gorringe v Queensland [2010] FCA 716
Little v Western Australia [2001] FCA 1706
Re Horvatic [2005] QLRT 112
Re Horvatic [2007] QLRT 55
Re Horvatic [2009] QLC 0010
Silver v Northern Territory (2002) 169 FLR 1
Western Australia v Thomas (1996) 133 FLR 124

REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION

Introduction

On 2 July 2009, the State of Queensland (“government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Mining Lease (ML 95606) to Dragutin Horvatic (“the grantee party”), and specified 15 July 2009 as the notification day for the purpose of s.29(4)(a).
The notice stated that the Mining Lease would authorise the grantee party to mine, and carry out associated activities subject to the Mineral Resources Act 1989 (Qld) for a term not exceeding ten (10) years with the possibility of renewal for a term not exceeding ten (10) years.
The tenement area is also subject to Authority to Prospect 259 which was initially granted on 1 January 1979, and has been renewed several times since. It is currently due to expire on 31 December 2010. Previously the tenement area was the subject of five other Authorities to Prospect: ATP 24 (granted 23 November 1954), ATP 27 (granted 10 February 1955), ATP 43 (granted 4 April 1957), ATP 66 (granted 10 February 1959) and ATP 541 (granted 29 January 1993).
The underlying tenure of the tenement area is pastoral lease. The current pastoral lease commenced on 1 March 2008, and expires on 28 February 2038. The area of the pastoral lease is approximately 267,000 hectares.
The proposed tenement is located approximately 60 kilometres north-west of Windorah, within the Barcoo Shire Council local government area, and covers an area of approximately 9.24 hectares.
The grantee party applied, pursuant to section 245 of the Mineral Resources Act 1989 for the proposed tenement. His application was lodged at the office of the Mining Registrar at Winton on 16 September 2008. No objection was lodged before the closing date for objections which was 21 December 2008. Mr. B.R. O’Connor, Judicial Registrar considered the grantee party’s application and recommended that the Minister grant a mining lease over the application area for a term of ten years – Re Horvatic [2009] QLC 0010. In coming to his decision, the Judicial Registrar noted:
“[5] The application seeks the grant of a mining lease for the principal purpose of mining for opal. Opal has been produced from this area in the past. The applicant held a current prospecting permit at the time of marking out. The area is generally known for the production of opal, and I am satisfied that the area is generally mineralised.”
Mr. Horvatic has previously applied for mining leases for the purpose of opal mining. On each occasion his application has been the subject of a positive recommendation by the Land and Resources Tribunal: Re Horvatic [2005] QLRT 112 and Re Horvatic [2007] QLRT 55.
The proposed tenement is situated wholly within the boundaries of the Mithaka People (the “native title party”) registered native title determination application (QUD6033/02). The approximate area contained with the external boundary of the Mithaka People registered native title determination application is approximately 47,150 square kilometres.
The Mithaka People’s native title determination application was entered on the Register of Native Title Claims on 24 December 2002. The persons who collectively comprise the applicant are Mr Scott Gorringe, Ms Lorraine McKellar, Ms Ada Martin, Mr Richard McCarthy, Ms Jocelyn Haylock and Ms Rose Turnbull.

Queensland legislation

The grant of mining leases in Queensland is governed by the provisions of the Mineral Resources Act 1989 (Qld) and the Mineral Resources Regulation 1993.
The general conditions prescribed for each granted mining lease are prescribed by section 276 of the Mineral Resources Act 1989. So far as is relevant, the conditions are:
(a)     that the holder of the mining lease such use the land comprising the tenement bona fide for the purpose for which the mining lease was granted and in accordance with the legislation and conditions of the lease and for no other purpose;
(b)     that the holder must carry out improvement restoration for the mining lease;
(c)     that the holder prior to the termination of the lease for whatever cause, shall remove any building or structure erected and all mining equipment and plant, unless otherwise approved by the Minister;
(d)     that without the prior approval of the Minister, the holder shall not obstruct or interfere with any right of access had by any person in respect of the land;
(e)     the holder shall not assign, sublease, or mortgage the lease without the written consent of the Minister;
(f)   the holder shall furnish all prescribed reports, documents etc;
(g)     the holder will give materials obtained under the mining operations to the Minister at the times, in the way, and in quantities reasonably required by the Minister;      …
(i)   the holder shall maintain during the term of the lease the marking out of the land including any survey pegs;
(j)   the holder shall make all compensation payments and comply with all the terms of any compensation agreement or determination pursuant to ss.279, 280, 281 or 282;
(k)     the holder shall pay rental and royalty as prescribed, local government rates and shall deposit any security deposit required by the Minister.
In addition, s.276(1)(m) also provides that the grant of a mining lease is subject to such other conditions as may be prescribed. Section 18 of the Mineral Resources Regulation 2003 prescribes four general conditions:
(a)     that the holder will use, if practicable, only existing roads or tracks on the tenement;
(b)     that the holder will take reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the tenement area;
(c)     that the holder will not allow an animal in the holder’s custody to be on the land unless the land is fenced to prevent the animal from leaving the land or the animal is restrained; and
(d)     if the tenement is occupied land, that the holder shall not discharge a firearm on the land unless the holder has the written consent of the owner and such consent has been lodged with the mining registrar.
The regulation of the environmental management of mining is effected pursuant to the Environmental Protection Act 1994 (Qld). The holder of a mining lease is required to have an environmental authority in relation to the proposed mining activities. Such authority requires a holder, inter alia, to comply with each of the relevant standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. The Code deals with the following types of matters: financial assurance, land disturbance, air quality, noise emissions, erosion and sediment control, topsoil and overburden management, hazardous contaminants, roads and tracks, mine and process plant, service/maintenance and storage areas, monitoring/reporting and emergency response procedures, and rehabilitation. Condition 48 specifically deals with opal mining. The Condition provides:
“The holder of an environmental authority should leave reshaped areas disturbed by opal mining activities in an Uneven State, to facilitate natural revegetation through catching windblown seed and rainfall.”
It should also be noted that the Aboriginal Cultural Heritage Act 2003 (Qld) imposes a duty of care on the holder of a mining lease in relation to Aboriginal cultural heritage. Subsection 23(2) provides a non-exhaustive list of matters that a Court may have regard to when determining if a person has discharged their duty of care. In addition, section 28 provides that the Minister may, by gazette notice, notify cultural heritage duty of care guidelines. Such guidelines were gazetted on 16 April 2004, and the government party provided the Tribunal with a copy of same. The guidelines are detailed and provide the holder of a mining lease with detailed information on how to properly discharge their duty of care.
These provisions were also considered by the Tribunal in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF05/3 [2006] NNTTA 3 and the following conclusion was reached:
“[37] 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(es) a comprehensive and well integrated regime that aims to an appropriate level of environmental and cultural protection ....
[38] 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.”

I adopt, for the purposes of this inquiry, those findings on the current state and operation of the Queensland legislative regime, and its protective framework so far as the likely impact of the doing of the future act on the native title party’s registered native title rights and interests.

Tribunal Proceedings

On 28 May 2010 Mr Dragutin Horvatic lodged a future act determination application (Form 5) pursuant to ss.35 and 75. The application was made more than six months after the notification day (15 July 2009) – s.35(1)(a). When making his application Mr. Horvatic supplied the Tribunal with a copy of his Centrelink Pensioner Concession Card. The starting date of the Concession Card was 4 February 1999. In all likelihood, Mr Horvatic is a septuagenarian.
On 1 June 2010 I was appointed as the Member to conduct the future act determination inquiry and on 2 June 2010 I accepted the future act determination application pursuant to s.77.
In response to the requirement in paragraph 10 of Form 5 that he provide a statement that the parties had not been able to reach agreement about the act within 6 months of the section 29 notice, Mr Horvatic stated: “Have contacted Lorraine, McKeller (sic), Scott Gorringe and Jocelyn Haylock. All is OK with them. All attempts to locate and contact Ada Martin, Richard McCarthy and Rose Turnbull have failed.”
I convened a Preliminary Conference on 11 June 2010. Ms. Jacinta Dwyer, on behalf of the government party, appeared in person. Mr. Horvatic, who is not legally represented, participated by telephone assisted by a friend, Mr. Warren Grover. The native title party’s participation itself presented some difficulties. Some of the persons comprising the Applicant attended at the Tribunal (Mr. Richard McCarthy, Ms Ada Martin and Ms Rose Turnbull) whereas others (Ms Lorraine McKellar and Mr Scott Gorringe) were linked in by telephone from the offices of Queensland South Native Title Services. Ms. Jocelyn Haylock did not attend at the Tribunal Registry or participate by telephone. Suffice it to say, there were obvious differences of opinion between the persons comprising the Applicant.
Mr Horvatic informed the Tribunal that he had used his best endeavours to contact the persons comprising the Applicant. He is an elderly gentleman who resides in far western Queensland; he has been engaging in opal mining for some time. Both Ms. McKellar and Mr. Gorringe addressed him by his Christian name and it was clear that their relations were amicable.
The other persons comprising the Applicant initially and vocally expressed displeasure that they had not been contacted by Mr Horvatic. Some of them reside in Toowoomba. Mr Horvatic explained his personal circumstances, the efforts he had made to try and contact persons and his apologies for commencing formal proceedings in an endeavour to obtain the grant of the mining lease. Each of the persons comprising the Applicant, who were present, then informed the Tribunal that they had no objections to the government party granting Mr. Horvatic the proposed tenement. Some, indeed, wished him good luck and hoped that the grant of the proposed tenement could be effected quickly.
Instead of making formal directions, I adjourned the Preliminary Conference and indicated to the parties that it would be desirable that they reach an agreement rather than the Tribunal being required to make a section 38 determination.
Unfortunately when the matter was brought back before the Tribunal on 7 July 2010 both the grantee and government parties informed the Tribunal that a formal agreement had not been concluded. There was no appearance by any of the persons comprising the Applicant. Ms. Dwyer informed the Tribunal that there had been difficulties in contacting the persons comprising the Applicant. The grantee party was unable to assist the Tribunal with any further information.
Directions were made with the government and grantee parties being required to provide relevant contentions by 21 July 2010 and the native title party by 28 July 2010. An explanatory letter and a copy of the Directions were sent by registered post to each of the persons comprising the Applicant. Delivery confirmation was received from Australia Post for five of the six persons comprising the Applicant.
Only the government party has provided the Tribunal with contentions. No contentions were received from the grantee party and no response to the Directions was received from any of the persons comprising the Applicant.
It is a matter of public record that there are divisions within the native title party. The problems besetting the native title party were recently the subject of observation by Mansfield J in Gorringe v Queensland [2010] FCA 716. In the course of his judgment, Mansfield J said (at [21]): “as far back as November 2009, QSNTS had identified that the six persons constituting the applicant had some internal disagreement as to how the matter should be progressed.”
Unfortunately the Tribunal is presented with a less than ideal situation. There is no written material before me from the native title party, and I have proceeded on the assumption that the persons collectively comprising the Applicant did not wish to further participate in these proceedings.
The appropriate means of conducting an inquiry in these circumstances was explained in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland [2006] NNTTA 3 at [15] – [17]. As explained in that matter, the Tribunal has an overarching statutory obligation to make a determination within a relatively short time frame. Clearly, there is a requirement that the Tribunal provide to each of the parties procedural fairness, and to conduct the inquiry and make Directions cognisant of the circumstances confronting each of the parties. This is particularly important if parties are not legally represented, or a disadvantaged by tyrannies of distance or lack of resources. One key issue is whether the Tribunal is able to make a section 38 determination in the absence of any submissions from the native title party. This was answered in Cameron as follows (at [16]):
“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.”

The same conclusion was reached more recently by the Tribunal in Coalpac Pty Ltd/New South Wales/North Eastern Wiradjuri People of Bathurst, Lithgow, Mudgee area [2009] NNTTA 137 at [20] – [21].

Legal Principles and Government Party Contentions

Section 38 provides that the Tribunal must make a determination either the future act must not be done or may be done with or without conditions. The Tribunal is prevented from making a determination subject to profit-sharing conditions – s.38(2).
The criteria for making a determination are set out in section 39. The section provides as follows:
”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;
(d) any public interest in the doing of the act;
(e) 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 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.

The accepted approach to applying the criteria outlined in section 39 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.”
In its contentions lodged with the Tribunal on 21 July 2010, the government party said:
“7.1 The State is not aware of any information indicating that the grant of the Mining Lease would be likely to affect the enjoyment by the native title parties of their registered native title rights and interests.
7.2As set out at paragraph 3.6 above, a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register undertaken by the State did not identify any Aboriginal cultural heritage within or partially within the area of the Mining Lease.
7.2(sic)However, the State concedes that this of itself is not determinative of the issue. The Database and Register do not purport to be a record of all Aboriginal cultural heritage in Queensland. The ACHA protects all Aboriginal cultural heritage whether on the Database or Register or not.
7.3In any event, the State contends that the grant of the Mining Lease is not likely to affect the enjoyment by the Native Title Party of their native title rights and interests because of the following factors;
(a) the conditions on which the Mining Lease will be granted;
(b) the Grantee Party is a sole operator, and therefore any activities carried out under the Mining Lease are unlikely to cause major disturbance to the land;
(c) the operation of the ACHA;
(d)there are no Aboriginal communities situated on the Mining Lease or in close proximity to the Mining Lease;
(e)the very limited area of the Mining Lease compared to the area contained within the external boundary of the Claim’
(f) the area subject to the Mining Lease has been subject to extensive prior exploration activities which may have already affected the native Title parties’ enjoyment of their registered native title rights and interests;
(g) the underlying tenure of the Mining Lease is subject to interests held by third parties that would have affected the native Title parties’ enjoyment of their registered native title rights and interests; and
(h) the activities of third parties conducted within the vicinity of the Mining Lease which would interfere with the enjoyment of the native Title Parties’ registered native title rights and interests
7.4The first Preliminary Conference for this matter held by the Tribunal on 11 June 2010 was attended by Scott Gorringe, Lorraine McKellar, Ada martin, Richard McCarthy and Rose Turnbull on behalf of the Mithaka People. All of these claimants verbally confirmed that they supported the Grantee Party’s Mining Lease application. Jocelyn Haylock was not in attendance.”

Subparagraph 39(1)(a) and subsection 39(2) – enjoyment of registered native title rights and interests

The Tribunal proceeds on the assumption “that each of the native title rights and interests described in the application exist” – Western Australia v Thomas (1996) 133 FLR 124 at 167. Nonetheless, s.39(1)(a)(i) requires the Tribunal to determine the likely impact of the future act on the registered rights and interests, and not to assume that there will be, in fact, an impact. It should be noted in this regard that any determined rights and interests will not be extinguished by the grant of the proposed tenement, rather the non-extinguishment principle applies – ss.24MD(3)(a) and 238.
In undertaking this weighing exercise the Tribunal does not operate in the abstract. Such an exercise can only be sensibly undertaken when there is actual evidence of the exercise of the registered rights and interests on or adjacent to the area of the proposed tenement. The only party that can provide such evidence is the native title party, and while there is no legal obligation to do so, there is, nonetheless, a responsibility to do so if the native title party has concerns about the granting of the tenement – Egerton Gold/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 at [25] per Deputy President Sumner.
In this matter there is no evidence before the Tribunal of the past, present or potential exercise or enjoyment of the registered native title rights and interests on or near the area of the proposed tenement. Consequently, if for whatever reason, a native title party chooses not to provide the Tribunal with evidence of the exercise of its native title rights and interests, the Tribunal will proceed on the basis of the information and submissions that have been provided by the other negotiation parties.
The Tribunal is also required to take into account existing non-native title rights and interests in relation to the land and waters concerned – s.38(2). In this regard it is of significance that the subject land forms part of a pastoral holding and has been the subject of numerous tenement grants over a number of decades. I note, in particular, the contentions of the government party previously set out at paragraph 7.3 (f) – (h).
No evidence has been provided how, or if at all, the native title party’s registered native title rights and interests are exercised and enjoyed over the subject land and waters. Indeed, the only information supplied by the persons comprising the Applicant, was to the effect that they did not oppose the grant of the mining lease to Mr Horvatic. A logical implication from this would be that the grant of the proposed future act will not have, or will not be likely to have, a negative impact on the enjoyment of the registered native title rights of the Mithaka People over the subject land and waters.
The Tribunal has taken into account the following factors when evaluating s. 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 previous and current pastoral activities will have negatively impacted on the enjoyment of any registered native title rights and interests;
(c) the operation of the non-extinguishment principle in section 24MD(3)(a) to the granting of the mining lease;
(d)     the small scale nature of the proposed opal mining operations;
(e)     the absence of any evidence of how the members of the native title party enjoy their registered native title rights and interests on or near to the proposed tenement; and
(f)   the statements by all of those persons comprising the Applicant who attended the Preliminary Conference on 11 June 2010 that they did not oppose the grant of the proposed mining lease to Mr. Horvatic.

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

The Tribunal has no evidence before it to base a finding that there will be any effect, let alone any major effect, from the proposed mining activity on these factors.

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

In evaluating this criterion I have taken into account the following factors:
(a)     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;
(b)     the absence of any evidence of any rites, ceremonies or other activities of cultural significance being carried out on the proposed tenement, or in the immediate vicinity;
(c)     the grantee party stated at paragraph 11 of the Form 5 that: “the Mithaka People are welcome to carry out any cultural traditions, rites and ceremonies on the said land.” and
(d)     the small area of land involved by the grant of the proposed tenement (9.24 hectares) and the small scale nature of the proposed opal mining activities.
Accordingly, I find that the grant of the proposed tenement is unlikely to have any impact, or at least any significant impact, on the freedom of access by members of the native title party to the subject land and waters or their freedom to carry out rites, ceremonies or other activities of cultural significance on the land and waters in accordance with their traditions.

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

This paragraph focuses on sites of “particular significance”. That term was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 1 (at 34 – 35) as follows: “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.” Although Carr J was dealing with section 237, this passage has been endorsed on a number of occasions by the Tribunal as the correct means of understanding this paragraph – Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46 at 70.
However, no evidence has been provided by the native title party of any sites of particular significance. The government party advised that a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register had not identified any Aboriginal cultural heritage within or partially within the proposed tenement. The government party rightly conceded that this was not determinative, as neither the Database nor the Register purports to be a record of all Aboriginal cultural heritage. Nonetheless, the absence of any recordings is consistent with the apparent lack of concern by the persons comprising the Applicant. The government party also contended that in any event, the Aboriginal Cultural Heritage Act 2003 protects Aboriginal cultural heritage whether on the Database or Register or not. 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 key point to note is that an area or site can only be of “particular significance” if it is identified by the native title party, its significance is explained and that the person or persons providing this information have the necessary authority to speak about the traditions of the claim group – Silver v Northern Territory (2002) 169 FLR 1 at 34 and Little v Western Australia [2001] FCA 1706 at [78]. It is not ordinarily possible for the Tribunal to make a finding that an area or site is of “particular significance” without direct evidence from the native title party. The only exception is where there is direct and compelling evidence from government databases, previous cultural heritage work or previous direct evidence from the appropriate members of the claim group.
I find that there is no direct or indirect evidence before the Tribunal identifying any areas or sites of particular significance to members of the native title party. I also find that the proposed mining activities to be carried out by the grantee party will not affect any sites of particular significance to the native title party in accordance with their traditions.

Subparagraph 39(1)(b) – interests, proposals, opinions or wishes of the native title party

The only information before the Tribunal relevant to this subparagraph are the statements of those persons comprising the Applicant who appeared at the Preliminary Conference on 11 June 2010 and indicated their support for the State granting the tenement to Mr. Horvatic.

Subparagraph 39(1)(c) – economic or other significance of the proposed future act

The nature of the evaluative task required of the Tribunal by this paragraph was explained in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland [2006] NNTTA 3 at [70] – [73]. I adopt, for the purposes of this inquiry, that statement of the law.
There is very little material before the Tribunal on the economic and other benefits that would flow from the grant of the proposed mining lease. It appears that the grantee party is a small miner. He has had a history of opal mining in far western Queensland. The proposed scale and nature of his opal mining operations could be categorised as small and localised. It is doubtful if the grant of the mining lease would generate either considerable wealth to the grantee party or significant economic benefits either to the local community or the broader Queensland economy.
It is the case, nonetheless, that there is an economic and social benefit in facilitating small mining, and in the context of south western Queensland, a viable and vibrant opal mining industry. The fact that this particular tenement will not create significant economic or social benefits for the broader community is not of itself determinative. It is the case that cumulatively the grant of such tenements assists in facilitating an opal mining industry, which looked at in the broader scheme of things, is of advantage to the State of Queensland and, in particular, to certain small communities of western Queensland that are largely dependent on opal mining activities.
I therefore find that if the mining lease is granted, and opals are extracted, there may be some associated economic and social benefits for the local economy. Clearly the mining operations will be small scale and the economic benefits generated will be relatively limited. However, the grant of the tenement when looked at in the broader perspective of maintaining an opal mining industry, is likely to have a positive economic impact.

Subparagraph 39(1)(e) – the public interest

The Tribunal is entitled to have regard to the views of the State of Queensland that the public interest is served by the grant of the mining lease. The government party by proposing to grant the tenement to the grantee party, inferentially, must view this as being in the public interest. In this matter there are no countervailing considerations of a native title kind. In these circumstances I am satisfied that there is a public interest in the doing of the proposed future act.

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

This paragraph gives the Tribunal a broad charter to take into consideration material lodged with the Tribunal that may be of relevance in making a section 38 determination. Usually, the Tribunal has focused on environmental assessment and controls that may assist in ameliorating the effect of the proposed future act on some of the factors contained in s.39(1)(a). Nonetheless in this matter none of the parties has provided the Tribunal with any material that is of assistance, and accordingly there are no other matters that the Tribunal considers relevant in making its determination.

Conclusion

As noted, there is relatively little material before the Tribunal. There is also no evidence to suggest that the native title party opposes the grant of the proposed tenement to the grantee party, or seeks that the Tribunal make a conditional determination.
The material before the Tribunal indicates that the grantee party is an old age pensioner who resides at Jundah and is constrained by issues of distance and resources. There is uncontested evidence before the Tribunal that he used his best endeavours to obtain the consent of the native title party for the grant of the proposed tenement.
It was clear from the Preliminary Conference that he did contact some of the persons who collectively comprise the Applicant, and that those persons were supportive of the State of Queensland granting Mr Horvatic the proposed mining lease. It was also clear from that Conference that those persons comprising the Applicant who Mr. Horvatic had not been able to contact, were also not opposed to the grant of the tenement once they became aware of his situation.
The Tribunal is aware of divisions within the native title party. Those divisions have prevented the conclusion of this matter other than by means of a formal determination pursuant to section 38.
To sum up, the proposed future act comprises a small geographical area and would involve limited opal mining by an elderly gentleman in a remote region of south western Queensland. No significant benefits of an economic or social kind to the Queensland economy will flow from the grant of the mining lease, but the grant of the mining lease will enable Mr. Horvatic to keep operating and will be of some small assistance for the broader opal mining industry in Queensland and perhaps the local economy.
There is, therefore, no reason why the Tribunal should not make a determination pursuant to s.38(1)(b) that the proposed act may be done unconditionally.

Determination

The determination of the Tribunal is that the act, namely the grant of Mining Lease 95606 to Dragutin Horvatic, may be done.

John Sosso

Deputy President