Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland
[2012] NNTTA 31
•26 March 2012
NATIONAL NATIVE TITLE TRIBUNAL
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, [2012] NNTTA 31 (26 March 2012)
Applications No: QF11/5 & QF11/6
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into Future Act Determination Applications
Drake Coal Pty Ltd & Byerwen Coal Pty Ltd (grantee parties)
- and -
Grace Smallwood, Allan Fisher, Heather Tilberoo, Algon Walsh Jnr, Colin McLennan, David Miller, Frank Fisher & Anor on behalf of the Birri People
(native title party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 26 March 2012
Hearing dates: 30 January, & 12 March 2012
Representatives:-
Grantee Parties: Graham Hiley QC; Mark Geritz; Margarita Escartin
Native Title Party: Sean Reidy of Counsel; Michael Owens, Lawyer & Consultant
Government Party: Gerry McKie, Sara Newrick
Catchwords: Native title – future act determination applications – proposed mining leases – no contentions or evidence submitted by the native title party – determination that the acts may be done
Legislation:Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 28, 34, 35, 53
Environmental Protection Act 1994 (Qld) ss 233, 234, 430, 431
Mineral Resources Act 1989 (Qld) ss 234, 235, 236, 276, 298
Mineral Resources Regulation 2003 (Qld) s 18
Native Title Act 1993 (Cth) ss 24MD, 29, 31, 35, 36, 38, 39, 44H, 75, 109, 237
State Development and Public Works Organisation Act 1971 (Qld) s 26
Cases: Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387
Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46
Cameron/Ernest Hoolilhan, Hazel Illin, Elsie Thompson (Gugu Badhun)/ State of Queensland, [2006] NNTTA 3 (30 January 2006) Deputy President Sosso
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, [2009] NNTTA 137 (28 October 2009) Deputy President Sumner
De Rose v South Australia (No 2) (2005) 145 FCR 290
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/Queensland, [2012] NNTTA 9 (6 February 2012) Deputy President Sosso
Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 (13 February 2003) Deputy President Sumner
Evans v Western Australia (1997) 77 FCR 193
Little v Western Australia [2001] FCA 1706
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 v Thomas (1996) 133 FLR 124
Western Australia v Ward (1996) 70 FCR 265
REASONS FOR DECISION
On 6 October 2010, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Mining Leases ML 10349, ML 10350 and ML 10351(“the proposed Drake tenements”) to Drake Coal Pty Ltd (“Drake Coal”). For the purpose of s. 29(4), 6 October 2010 was specified as the notification day.
On 1 December 2010 notice was given under s. 29(3) of the Act of the proposed grant of Mining Leases ML 10355, ML10356 and ML 10357 (“the proposed Byerwen tenements”) to Byerwen Coal Pty Ltd (“Byerwen Coal”). For the purpose of s. 29(4), 1 December 2010 was specified as the notification day.
The notice for Drake Coal stated that the grant of the proposed tenements would authorise the holders to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term not exceeding thirty (30) years, with the possibility of renewals for a term not exceeding thirty (30) years per lease.
The notice for Byerwen Coal stated that the grant of the proposed tenements would authorise the holders to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term not exceeding fifty (50) years, with the possibility of renewals for a term not exceeding fifty (50) years per lease.
In its joint Statement of Contentions (at para 6(a) - (c)), Drake Coal and Byerwen Coal (“the grantee parties”) provided the following information about the area of the proposed tenements. The Drake Coal tenements cover an area of approximately 10,000 hectares and are located approximately 12 km south of Collinsville. The tenements can be accessed via the existing Bowen Development Road. The Byerwen Coal tenements cover an area of approximately 22,000 hectares and are located approximately 30 km south-west of Glenden. The tenements can be accessed via the existing Bowen Development Road and Cerito Road in the north and the existing Glenden-Newlands Road in the south.
The Drake and Byerwen Coal tenements are located in an area historically reliant on coal mining and are in close proximity to the townships of Glenden and Collinsville and are surrounded by a number of operating mines, including Newlands Mine and Wollombi Coal Mine.
On 4 October 2011, Clayton Utz, the legal representative of the grantee parties, lodged with the Tribunal, pursuant to ss. 35 and 75 of the Act, two future act determination applications. The applications were made more than six months after the respective notification days – s. 35(1)(a).
On 16 October 2011 I convened a Preliminary Conference during which the native title party contended that both grantee parties had failed to negotiate in good faith as required by s. 31(1)(b). It was not contended that the government party had failed to negotiate in good faith.
The Tribunal does not have the power to make a s. 38 determination until the question of good faith is determined.
After receiving contentions from each of the negotiation parties, the Tribunal determined that the grantee parties had fulfilled their obligation to negotiate in good faith and the Tribunal had power to conduct an inquiry and make a determination pursuant to s. 38 – Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/Queensland, [2012] NNTTA 9 (6 February 2012).
The background to this matter and in particular, the history of the Directions made, is set out in the above good faith determination. That determination also sets out the details of the proposed tenements.
The Directions made on 18 October 2011, and amended on 19 December 2011, required that on or before 19 January 2012 the grantee parties and the government party were to provide to the Tribunal, each other and the native title party, inter alia, a statement of contentions addressing the s. 39 criteria. The native title party was to likewise provide a statement of contentions and supporting documentation by 27 January 2012.
Both the government and grantee parties complied with the Directions, although there was some dispute about the fact that the grantee parties provided the material to Mr. Owens by email.
On 25 January 2012 Mr. Owens emailed the Tribunal and made the following request:
“… I also received instructions yesterday that my clients now have the financial resources that will enable them (for the first time) to develop and make substantial submissions on the s39 matters.
I also received instructions that my clients will require a Hearing and they request that it be held on country.
My clients have now retained senior counsel and other experts to assist them in making their submissions. My clients will be seeking the maximum possible time to undertake and compile its expert reports and develop its submissions.
It is noted that Order 9 of the Amended Directions of 19 December 2011, provided my clients with ‘liberty to apply to vary the Directions’.
In accordance with Order 9 of those Directions, my clients seek a further amendment of the Directions of 18 October to inter alia:
(a) Vacate the current Orders,
(b) Extend the Native Title Parties date for compliance with Order 6,
(c) Make Orders for a Hearing of the matter on Birri Country,
(d) Such further Orders as the Tribunal considers appropriate.”
Mr. Fooks, on behalf of the grantee parties, emailed on 26 January 2012 opposing the native title party’s submission to vary the Directions as outlined above. Mr. Fooks stated: “the history of the matter shows substantial delays on the part of the Native Title Parties (NTPS) already…” Mr. Fooks also highlighted that the matter “is already pushed up against the 6 month deadline. Any further delays will likely create serious difficulties in having this matter dealt with properly and effectively in time.” It was the submission of the grantee parties that the Directions as amended on 19 December 2011 should stand and that the concerns of the native title party be dealt with at the conference on 30 January 2012.
The Directions were not amended in advance of the 30 January 2012 Listings Hearing. The native title party was represented at that conference by Mr. Sean Reidy of Counsel instructed by Mr. Owens. The grantee parties were represented by Mr. Hiley of Queen’s Counsel instructed by Mr. Mark Geritz of Clayton Utz. The State of Queensland was represented by Ms Sara Newrick.
Mr. Reidy provided to the Tribunal and the other parties detailed written submissions aimed at advancing what was stated to be the issue for the conference, namely: “what amended directions should the Tribunal make to ensure that the Native Title Party is given a fair hearing on the applications for future act determinations and which allow for the fair and efficient conduct of the proceedings.”
The essence of the native title party’s submissions were that the grantee parties had failed to comply with the Directions thereby prejudicing the native title party preparing its case, that the grantee parties had failed to disclose a key matter, namely that the grantee parties had obtained Infrastructure of Significance status in February 2011 and that the native title party be given a fair opportunity to present its case. On the last point, it was submitted, that the native title party intended to put on evidence in three broad categories: witness evidence from traditional owners, expert anthropological evidence from Dr James Weiner and documentary evidence.
The submissions and concerns of the native title party were fully ventilated at the conference. After hearing from each of the parties, the Directions were further amended to extend the time for compliance by the native title party from 27 January 2012 until 8 March 2012. The Listings Hearing of 30 January 2012 was deferred until 9 March 2012.
The Directions were amended, in part, due to the positive and reasonable approach taken by the government and grantee parties. In his written submissions, Mr. Reidy had drawn the Tribunal’s attention to various academic writings and cases on procedural fairness. He quoted from Aaronson et al, Judicial Review of Administrative Action 4th ed, 2009 at [8.190] as follows: “The right to be heard will count for little if a person is not allowed sufficient time to prepare submissions and gather evidence.”
Mr. Reidy went on to make the following submissions:
“[22] The expert evidence is central. Dr. Weiner has been out of the country and not available to commence work. The fieldwork will take 10 to 12 days to complete and then the report will take 8 to 9 days to write. The report will need to be completed before the witness statements, including those of traditional owner witnesses, are finalized. As well, the documents will need to be organized. The proposed directions accommodate this and build in margins for the unexpected.
[23] The Native Title Party seeks to have a hearing conducted on country as the most appropriate course for the Tribunal determining the matter…”
In short, the Tribunal was presented with detailed written and oral submissions from the native title party that it intended to fully contest the matter, and provide to the Tribunal and the other parties detailed primary and secondary evidence of direct relevance to the criteria in s. 39.
On 7 March 2012 there was a telephone discussion between Mr. Owens and Ms. Kerr of the Tribunal. Subsequently, and on the same day, Ms Mlynarik, the Case Manager (Future Acts) of the Tribunal emailed Mr. Owens as follows:
“Thank you for your telephone call with our Ms Kerr this morning in relation to the listing hearing for the above matters. I note that in the course of that conversation you indicated that you do not currently have instructions to attend the listing hearing, and that you do not expect to receive those instructions. I tried to call you back this morning without success.
I note that under the current Directions (attached) the native title party’s contentions are due to be provided on or before 8 March, and until this morning the Tribunal had no information before it to indicate that there has been an issue with obtaining instructions.
The Tribunal would appreciate any written confirmation that you are able to provide in relation to the current status of the matter from your client’s perspective, particularly whether your clients have provided instructions to lodge contentions in accordance with the current Directions.”
This email was followed up by a further email from Ms Mlynarik to Mr. Owens on 8 March 2012 where it was stated: “DP Sosso has asked me to remind you that native title party contentions in the above matters are due today.”
At 4.15pm on 8 March 2012 Mr. Owens emailed Ms Mlynarik providing the following information on the status of his instructions:
“I am instructed that my clients oppose the determination but do not intend to file any further contentions, evidence or submissions and do not wish to make oral submissions or attend any further directions hearings pertaining to the above matters.
Other than to send this email as a matter of courtesy, I have no instructions to appear on Monday and in any event could add nothing more than as contained in this email.
Although it is a matter for the tribunal, perhaps the listing hearing on Monday can be vacated to better suit the convenience of all concerned.
No doubt I will be provided with a copy of the tribunals decision in due course.”
The Listings Hearing of 12 March 2012 proceeded without any appearance by the native title party. Apart from the material set out above, the Tribunal was provided with no other information as to why the native title party had abandoned its stated intention of fully contesting the granting of the proposed tenements. To suggest, as Mr. Owens did, that the supply to the Tribunal of the minimal information in his email of 8 March 2012 was a “courtesy”, is misconceived. Mr. Owens had a professional and legal responsibility to assist the Tribunal in the carrying out of this inquiry. The Tribunal proceeded on the basis that the submissions of the native title party made on 30 January 2012 were genuine and gave the native title party the maximum period of time to present its case. As matters have transpired, all that has occurred is an inordinate delay in the Tribunal making its determination, and the imposition of unnecessary costs on the government and grantee parties. In these circumstances the cursory approach of the legal representative of the native title party was less than helpful and not of the standard expected of persons appearing before this, or indeed any, Tribunal.
At the Listings Hearing of 12 March 2012, the government party was represented by Ms. Newrick and the grantee parties by Mr. Hiley QC instructed by Mr. Geritz.
Both the government and grantee parties submitted that the Tribunal should proceed to make a determination” on the papers” and that the absence of any appearance or submissions from the native title party was not an impediment to this course of action. Mr. Hiley QC provided a draft form of Direction, which was supported by the government party.
Before making the Directions I had regard to the submission of the government party. Ms, Newrick drew my attention to a previous determination of the Tribunal, Cameron/Ernest Hoolilhan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, [2006] NNTTA 3, where there was no appearance by the native title party and the Tribunal had not been supplied with any written contentions from the native title party. The Tribunal considered the implications of this state of affairs for the making of a s. 38 determination. The Tribunal in that matter outlined the legal position as follows:
“[15] 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.
[16] 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.
[17] 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.
This approach was subsequently adopted in Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area, [2009] NNTTA 137 at [21] per Deputy President Sumner (“Coalpac”).
I adopt, for the purposes of this inquiry, the statement of law set out above. The failure of the native title party in this matter to provide any contentions or evidence is disappointing. However, there is copious material before the Tribunal which provides a sufficient factual and evidentiary basis for the making of a s. 38 determination. Indeed, if a native title party’s failure to provide material was considered a basis for not making a determination, then such an omission would amount to a de facto right of veto.
Provided that the Tribunal has accorded the parties procedural fairness, there is a mandatory obligation placed on the Tribunal to “take all reasonable steps to make a determination in relation to the act as soon as possible” – s. 36(1). I am therefore satisfied that the Tribunal can proceed to make a s. 38 determination in the absence, and without the benefit of, submissions and evidence from the native title party.
The Proposed Tenement Areas – previous and current exploration and prospecting
In Annexure 6 of its Statement of Contentions, the government party set out the history of previous exploration permits and authorities to prospect granted over the area of the proposed tenements. Each of the proposed tenement areas has previously been the subject of numerous exploration grants. For example, the area of ML 10349 was the subject of 21 exploration permits granted between 1958 and 2011 and the area of ML 10350 was the subject of 19 permits over the same period.
The government party also attached in Annexure 7 of its Statement of Contentions maps of each of the tenement areas showing the location of the previous tenements. The maps would indicate that the bulk of the area of the proposed tenements has previously been the subject of exploration permits and authorities to prospect.
In addition, each of the areas of the proposed tenements is subject to the following current exploration permits and authority to prospect:
(a) the Drake Coal tenements (ML 10349, 10350 and 10351)
(i)exploration permit for coal 586, 773 and 1320;
(ii)exploration permit for minerals 17214; and
(iii)authority to prospect for petroleum 688.
(b) the Byerwen Coal tenements (ML 10355, 10356 and 10357)
(i)exploration permit for coal 739;
(ii)authority to prospect for petroleum 688; and
(iii)exploration permit for minerals 739.
The Underlying Tenure
The government party has helpfully provided comprehensive information about the underlying tenure of both the Drake and Byerwen Coal tenements.
The Drake Coal tenements are subject to freehold and a pastoral development holding.
The Byerwen Coal tenements are subject to two pastoral development holdings and a grazing homestead perpetual lease.
The grantee parties in their Statement of Contentions (para 6 (d)) state that the majority of the Drake and Byerwen Coal tenement areas comprise cleared grazing land, with some tree covered undulating hills in the north-west. It is also contended that the majority of the area of the tenements has been used for a prolonged period for beef cattle grazing.
Proposed Mining Activity
The Statement of Contentions on behalf of both grantee parties contains some useful information about the nature of the proposed mining activities on the proposed tenements.
Both grantee parties intend to construct and operate open cut coal mines, with the product being transported by railway to Abbot Point for export. Drake Coal aims to produce up to 4 million tonnes of coal per annum and Byerwen Coal’s target is up to 10 million tonnes of coal per annum.
Construction of the mines is due to commence immediately on grant of the relevant mining leases. Byerwen Coal is likely to employ up to 990 people throughout the construction and mining phases and Drake Coal up to 400 people.
On 25 February 2011 the Queensland Coordinator-General declared the development of the Byerwen Coal tenements as a Project of State Significance.
In a press release dated 2 March 2011 the then State Treasurer and Minister for State Development and Trade, the Honourable Andrew Fraser MP, said:
“Today’s decision by the Coordinator-General now allows JFE Steel and QCoal to start work on the project’s Environmental Impact Statement (EIS).
The proposed $1.5 billion project is expected to produce up to ten million tonnes per annum of high-quality metallurgical coking coal primarily for the Japanese and Asian export market over a lifespan of 50 years.
Up to 500 jobs could be created during construction and up to 1000 jobs at its full operational stage.
If approved, this will be a substantial investment for Queensland and will ensure the longer-term future of townships in the area that rely on mining for their survival.”
Aboriginal communities and Aboriginal cultural heritage
The government party contended (para 3.4) that it was not aware of any Aboriginal community on, or within the vicinity of, the proposed tenements. There is no material from either the grantee parties or the native title party which would suggest that this is incorrect.
The government party also undertook a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register on 17 November 2011 for the Drake Coal tenements and 21 November 2011 for the Byerwen Coal tenements. The results of these searches are set out in Annexure 12 and 13 of the government party’s Statement of Contentions.
The search of the Drake Coal tenements resulted in nil results for ML 10349 and ML 10351, while artifact scatter was recorded for ML 10350.
In contradistinction, the search of the Byerwen Coal tenements revealed 25 recorded sites, all being located within ML 10356. The Aboriginal cultural heritage recorded was either artifact scatter, scarred/carved trees or landscape features.
At paragraph 3.7 of the government party’s Statement of Contentions the following information was provided: “I am instructed that it is not possible to conclusively guarantee the accuracy of the recordings listed (in particular, the longitude and latitude location description for each site) so extra diligence is required when operating in the area of the MLs.”
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 on that mining; and
(b) such purposes, other than mining, specified in the lease and that are associated with, arising from or promoting the activity of mining.
Importantly, the holder of a mining lease can make application for approval to mine minerals not specified in the mining lease – s. 298.
The general entitlements of the holder of a mining lease are prescribed by s. 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 utilised by the tenement holder subject to the payment of any prescribed royalty – s. 236.
The general conditions imposed on mining leases are set out in s. 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.
In Queensland the environmental regulation of mining activities is effected pursuant to the provisions of 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 but also apply for an environmental authority under the Environmental Protection Act 1989.
One of the requirements of an environmental authority is that the grantee party must comply with each of the relevant standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects (“the Code”). The Code is contained in Annexure 14 to the government party’s Statement of Contentions. The Code is a lengthy document which was issued in January 2001. Chapter 3 of the Code deals with standard environmental conditions imposed on proposed mining activities. These conditions are divided into General Conditions and Activity-based Conditions.
Included in the matters dealt with in the General Conditions are: Plan of Operations, Financial Assistance, Land Disturbance, Air Quality, Noise Emissions, Erosion and Sediment Control, Topsoil and Overburden Management, Hazardous Contaminants, Nature Conservation and Other Level 2 Environmentally Relevant Activities.
Included in the matters dealt with in the Activity-based Conditions are: Roads and Tracks, Campsite, Waste Management, Dams, Mine and Process Plant, Service Maintenance and Storage Areas, Monitoring, Reporting and Emergency Response Procedures and Rehabilitation.
Condition 15 of the General Conditions, which deals with cultural heritage issues, provides: “The holder of an environmental authority must not carry out activities within 100m of an identified Historical, Archaeological or Ethnographic Site.”
Failure to comply with the provisions of the Code is a breach of the environmental authority and the holder is liable to prosecution under s. 430 of the Environmental Protection Act 1994. Breaches of s. 430 have been treated by the Courts as serious offences, even though the breach was relatively technical. Moreover s. 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) engage in environmentally relevant activities including chemical storage, incinerating waste and battery and tyre recycling – Condition 16;
(m) consult with the landowner prior to establishing any new roads and tracks (Condition 17) or campsites (Condition 19);
(n) minimize any disturbance to land, vegetation etc when constructing new roads or tracks ( Condition 18) or campsites (Condition 20);
(o) 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;
(p) operate, maintain and decommission all dams in accordance with the prescribed criteria – Condition 23;
(q) ensure that chemicals, fuel and oil storage facilities are designed and operated in accordance with the prescribed guidelines – Conditions 26 and 27;
(r) ensure the prescribed monitoring, reporting and emergency response procedures are complied with – Condition 28;
(s) 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
(t) 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 a Plan of Operations for the mining lease. This Condition is a restatement of the specific statutory obligation imposed by s. 233 of the Environmental Protection Act 1994. The required content for such Plans is set out in s. 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 s. 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 s. 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.
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 tenements fall wholly within the area of land and waters of the Birri People native title determination application (QUD 6244/98). The registered native title rights and interests of the Birri People which were entered on the Register of Native Title Claims are as follows:
“Over areas where a claim to exclusive possession can be recognized (such as areas where there has been no prior extinguishment of native title or where s. 238 and/or ss. 47, 47A and 47B apply) the Birri People claim to the right to possess, occupy, use and enjoy the lands and waters within the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
Over land and waters where a claim to exclusive possession cannot be recognized, the Birri People claim the following rights and interests:
(a)the right to access the application area;
(b)the right to camp on the application area;
(c)the right to erect shelters on the application area;
(d) the right to live on the application area;
(e)the right to move about the application area;
(f)the right to hold meetings on the application area;
(g)the right to hunt on the application area;
(h)the right to fish on the application area;
(i)the right to have access to and use the natural water resources of the application area;
(j)the right to gather and use the natural products of the application are (including food, medicinal plants, timber, stone, earths, ochre and resin) according to traditional laws and customs;
(k)the right to conduct ceremony on the application area;
(l)the right to participate in cultural activities on the application area;
(m)the right to maintain places of importance under traditional laws, customs and practices in the application area.
The native title rights and interests are subject to:
(a)The valid laws of the State of Queensland and the Commonwealth of Australia; and
(b)The rights conferred under those laws.”
Legal Principles
In making a s. 38 determination the Tribunal is required to take into account the criteria outlined in s. 39. The proper approach to applying the s. 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 s. 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 – s. 38(3). The Act does not specify what sort of conditions the Tribunal may impose, although the s. 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 s. 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 s. 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.
Subsections 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests
The Tribunal, for the purposes of weighing up the s. 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, s. 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.”
As the Tribunal has found on many previous occasions, a determination does not proceed on a “worst case” scenario, whereby the registered native title rights and interests are presumed to exist and be exercised equally over all of the area of the proposed tenements. The registration of native title rights and interests does not equate with a presumption that they are enjoyed in equal measure throughout the claim area. This is particularly the case where the area under consideration is only a small part of a much larger claim area – see Coalpac at [31].
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 s. 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 Egerton Gold NL/ 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 s. 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 recognised that it could take into account when evaluating s. 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.”
The grantee parties, in their Statement of Contentions made the following submissions on existing non-native title rights and interests in relation to the relevant land and waters:
“(a)The area of the proposed Mining Leases covers a number of pastoral holdings currently used for grazing. The relevant underlying land titles for each Mining Lease are listed in Annexure 1.
(b)In addition to the identified lease holdings Drake Coal is aware of the following non-native title interests applying to the area of the Drake Mining Leases:
(i) Exploration Permits for Coal (EPC) which authorise the conduct of high impact exploration activities;
(ii) Hancock proposes to develop a rail corridor that travels through the land the subject of the Mining Leases. Please see the attached maps provided by Hancock Prospecting Pty Ltd included as Annexure 4; and
(iii) BHP proposes to develop a rail corridor that either travels through the land the subject of the Mining Leases or travels in close vicinity to the Mining Leases. Please see the attached as Annexure 5, a map provided by BHP Billiton (due to the scale of the map, it is not possible to exactly confirm the location of the proposed rail corridor where it is close to or on the Mining Leases).
(c)In addition to the identified lease holdings Byerwen Coal is aware of the following non-native title interests applying to the area of the Byerwen Mining Leases:
(i)EPCs which authorise the conduct of high impact exploration activities;
(ii) Road Corridor (Parcel 39, Parcel 40 and Parcel 137, Segment 39889) controlled by Whitsunday Regional Council;
(iii) The above Hancock rail corridor;
(iv) The BHP rail corridor that either travels through the land the subject of the Mining Leases or travels in close vicinity to the Mining Leases. Once again, due to the scale of the map, it is not possible to exactly confirm the location of the proposed rail corridor where it is close to or on the Byerwen Mining Leases; and
(v) Lot 3 on SP171922 is burdened by an easement for electricity transmission lines to the Northern Electric Authority of Queensland.
(d)The majority of area of the proposed Mining Leases consists of cleared grazing land with some tree covered undulating hills in the North West. The majority of the area has been used over a prolonged period for beef cattle grazing.
The grantee parties also made the following submissions on the effect of the grant of the proposed tenements on the native title party’s registered native title rights and interests:
“(a) The Grantee Parties are not aware of the extent to which, if at all, the Native Title Party’s registered native title rights and interests are enjoyed, or exercised, over the area of the Mining Leases and therefore cannot state the effect of the Mining Leases on the enjoyment of t hose rights and interests.
(b)The Grantee Parties is [sic] not aware of any Aboriginal community on the Mining Leases.
(c)The Grantee Party [sic] therefore submits that, on current knowledge of the extent to which the Native Title Party’s registered native title rights and interests are enjoyed in the relevant area having regard to:
(i) the Queensland legislative framework concerning mining activities;
(ii) the existing non-native title interests in and uses of the subject land’
(iii) the scale of mining operations; and
(iv) the operation of the non-extinguishment principle on the grant of the Mining Leases,
the grant of the Mining Leases is unlikely to have any significant impact on the Native Title Party’s enjoyment (if any) of their registered native title rights and interests.”
The government party also contended (para 6.2) that the grant of the proposed tenements would not be likely to affect the enjoyment by the native title party of their registered native title rights and interests. In support of that submission the government party drew to the Tribunal’s attention the following considerations:
(a) the statutory restrictions under the mining and environmental legislation previously discussed;
(b) the operation of the Aboriginal Cultural Heritage Act 2003 (Qld);
(c) the absence of any Aboriginal communities on, or in close proximity to, the proposed tenements;
(d) the limited area of the proposed tenements compared to the external boundaries of the claim;
(e) the extent of previous exploration over the subject areas; and
(f) the underlying tenure, and, in particular the exercise by leaseholders of their entitlements with consequent impacts on the existence or enjoyment of the registered native title rights and interests.
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 s. 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 s. 39(1)(a)(i):
(a) the history of extensive exploration and prospecting grants over the subject areas since at least 1959;
(b) the existence of extensive beef cattle grazing over much of the proposed tenements over an extended period of time;
(c) the uncontested contention of the grantee parties that the Drake and Byerwen Coal tenements are subject to Exploration Permits for Coal which authorise the conduct of high impact exploration activities;
(d) the ongoing development of the area of the Drake and Byerwen Coal tenements by other mining entities, including the proposed development of a rail corridor by BHP and Hancock;
(e) the operation of the non-extinguishment principle in s. 24MD(3)(a) to the granting of the mining leases;
(f) the absence of any evidence of how members of the native title party enjoy their registered native title rights and interests;
(g) the relatively limited area of the proposed tenements compared to the external boundaries of the Birri claim;
(h) the operation of the protective provisions of the mining, environmental and cultural heritage legislation previously referred to; and
(f) the uncontested assertion of the government party that there are no known Aboriginal communities located on, or in close proximity to, the proposed tenements.
In conclusion, there is no evidence before the Tribunal that the grant of the tenements 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 tenements 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, mining exploration and related activities, 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 about the way of life, culture and traditions of the native title party. Consequently there is to material which would support a finding that the grant of the proposed tenements 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 evidence of the negotiations between the grantee parties and the native title party about prospective employment opportunities that may flow from the granting of the proposed tenements.
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.”
In Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387 Deputy President Sumner had before him a situation not entirely dissimilar to that which the Tribunal is presented with. He made the following observations (405/[47]) in relation to s. 39(1)(a)(iii):
“The Tribunal has held that any positive effect of a future act can be taken into account: Waljen at 170. However, the development of the facilities and opportunities referred to by the grantee party, and whether the native title party would be in a position to take advantage of them, is speculative at this stage and the paucity of evidence in relation to any positive impact for the native title party means that this factor can only be given limited weight. The limited weight which can be given to it is based on the agreement that was being negotiated which contained provisions that could potentially benefit the native title party (employment, compensation etc). Although not finalized, the grantee party’s approach to negotiation of the agreement demonstrates that it is mindful of the need to provide benefit to the local Aboriginal community and native title party members.”
It is not possible, having regard to the scant material before the Tribunal, to give this factor much weight. There is simply insufficient material for the Tribunal to make a sensible finding that the grant of the proposed tenements will have a positive or negative impact on the development of the social, cultural and economic structures of the native title party. Certainly the material before the Tribunal during the “good faith” challenge, suggests that the grantee parties were prepared to negotiate a compensation and employment package that would have been of advantage to members of the native title party. Of course, those negotiations have since concluded without agreement; and the acrimonious nature of recent correspondence from the legal representative of the native title party gives little hope that an agreement will be reached, at least in the short term.
Section 39(1)(a)(iv) freedom of access and freedom to carry out ceremonies
The Tribunal has been presented with no evidence that members of the native title party actually access the land and waters comprising the proposed tenement areas to carry out rites, ceremonies or other activities of cultural significance.
The grantee parties made the following submission about the impact of the grant of the proposed tenements on the native title party’s freedom of access to the subject land and waters:
“(a) The Grantee Parties are unaware of any access by the Native Title Party to the area of the Mining Leases or the extent to which the Native Title Party carries out rites, ceremonies or other activities of cultural significance on the area of the Mining Leases in accordance with their traditions and therefore cannot state the effect of the Mining Leases on that access or those rites, ceremonies or other activities of cultural significance.
(b) To the extent the Mining Leases will impact upon the enjoyment by the Native Title Party of their registered native title rights and interests, the Grantee Parties intend to allow the Native Title Party to exercise their registered native title rights and interests and proposes to accommodate access by the Native Title Party to the area of its Mining Leases in circumstances where the coexistence of the activities under the Mining Leases is permissible and can be accommodated in accordance with statutory obligations and workplace health and safety regulations for a mine site.”
In evaluating this criterion I have taken into account the following factors:
(a) the stated intention of the grantee parties to allow members of the native title party to access to the proposed tenement areas, subject to any inconsistent statutory obligations;
(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; and
(c) the absence of any evidence of any rites, ceremonies or other activities of cultural significance on the subject land.
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 s. 237(b) which was interpreted by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 21 (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 made the following submission on this item (para 6.5):
“A search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register undertaken by the State Register has identified Aboriginal cultural heritage sites within the area of the MLs, I am advised that the Government Party cannot comment on areas or sites of particular significance to the Native Title Party that would be affected by the grant of the MLs as these are matters for the Native Title Party to establish. However, as mentioned in paragraph 6.2(b) above, the State contends that the operation of the ACHA is designed to protect and preserve areas or sites of cultural heritage significance and places a duty of care on the Grantee Party in relation to cultural heritage.”
The grantee parties made the following submissions:
“(a) Each Grantee Party and the Native Title Party have concluded an approved Cultural Heritage Management Plan (CHMP) for its relevant Mining Leases in accordance with the requirements of the Aboriginal Cultural Heritage Act 2003 (Qld).
(b) The relevant Grantee Party and the Native Title Party have conducted numerous cultural heritage surveys of the area of its Mining Leases.
(c) No sites of particular significance have been identified by the Native Title Party as a result of the cultural heritage surveys, not has the Grantee Parties been otherwise informed of any sites within the area of the Mining Leases that are of particular significance to the Native Title Party.
(d) In any event, the Grantee Parties intend to conduct mining activities under the Mining Leases in accordance with the terms of the CHMP.”
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 the cultural heritage surveys referred to by the grantee parties were of the type dealt with in Part 6 then any area or site of significance would have been dealt with in accordance with that Part.
The only directly relevant material to this item before the Tribunal is the uncontested submission of the grantee parties that cultural heritage surveys have been conducted and no areas or sites of particular significance were identified by members of the native title party.
In the absence of any direct evidence from the native title party on areas or sites of particular significance it is not open to the Tribunal to speculate on significance to the native title party of the cultural heritage that has been recorded on the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register.
In these circumstances the only conclusion open to the Tribunal is that any mining activities carried out pursuant to the grant of the proposed tenements is unlikely to affect any areas or sites of particular significance to the Birri People in accordance with their traditions.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party
The Tribunal was provided in the course of the good faith challenge with information about the wishes, proposals and opinions of the native title party in the context of the negotiations that took place. Unfortunately, the information before the Tribunal is not complete and the native title party has never committed to writing a comprehensive outline of its aspirations.
It is clear however that the native title party was not, in principle, opposed to the grant of the proposed tenements. The disagreement that arose related to the content of the agreement, rather than threshold issues about whether mining should be allowed under any circumstances.
As the government party contended (para 6.6) with respect to this paragraph: “these are matters for the native title party to address.”
In order for the Tribunal to make a sensible finding in relation to this paragraph the native title party must put into evidence its interests, proposals, opinions or wishes. It is not open for the other parties, or the Tribunal, to speculate about the opinions or wishes of the native title party. Only the native title party can clearly and authoritatively outline its views on the management, use or control of the subject land and waters for the purposes of this paragraph.
[100] In the absence of such evidence, there is no material that the Tribunal can take into account when considering this paragraph.
Section 39(1)(c) – economic significance of the future act to Australia etc
[101] 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.
[102] 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 generalised inquiry about the importance of exploration or mining to the economy (localised 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.
[103] 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.
[104] 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.
[105] The grantee parties made the following submissions concerning this paragraph:
“(a) Each Grantee Party submits that the grant of its Mining Leases will have positive economic impacts on the local region and the State of Queensland. The likely economic benefits of the Project can be divided into two distinct categories. First is the primary, direct economic benefit resulting from the Project’s expenditure in the community, employment of personnel, and direct payment of taxes, State royalty and infrastructure charges and use of resources within the community, surrounding region, and the State of Queensland. The second category is the indirect economic benefits that flow on from the increased spending and employment in service industries, and bolstering the local rental market.
(b) The grant of the Mining Leases will also have positive societal impacts on the local economy resulting from the influx of new people into the regional community as a direct result of the economic activity the mine is expected to generate. Onsite employment is expected to be between 350 and 500 personnel during the three year construction phase. The operational workforce is expected to average 990 over the 50 year life of the Mining Leases.
(c) Based on current production forecasts the Byerwen Mining Leases alone will contribute $215 million per annum in State royalties in addition to State and Federal taxes.
[106] The very fact that the Coordinator-General declared that the Byerwen Coal Project was a Significant Project pursuant to s. 26(4) of the State Development and Public Works Organisation Act 1971 (Qld) and that the then Treasurer and Minister for State Development and Trade issued a press release stating that this would be a substantial investment for Queensland and ensure the longer-term future of townships in the area, highlights the economic and social importance of these Projects.
[107] I find that if the mining leases are granted that there will be economic and associated social benefits not only for the local economy of Collinsville and Glenden, but also for the Queensland and national economy. The Drake and Byerwen Coal Projects are very significant and will generate large numbers of jobs and export revenue. The Projects will inject cash and flow-on benefits for the local economy and create direct and indirect employment. No doubt, many local Indigenous Australians will gain employment or associated benefits as a result of these Projects.
Section 39(1)(e) – the public interest
[108] 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.”
[109] 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 s. 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 s.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.
[110] The government party, in its Contentions, submitted as follows:
“… the Government Party contends that there is a public interest in the proposed act proceeding for the same reason as stated in Carpentaria Gold Pty Ltd/Birri People/Queensland where the Tribunal held:
‘It is a matter of public knowledge that the grant of exploration permits is central to the maintenance of a healthy and feasible mining industry in Queensland.’
I am instructed that the Government Party contends that the same reasoning may be applied to the grant of the MLs.”
[111] The grantee parties also contended that the grant of the mining leases would be in the public interests because it would contribute to the development and maintenance of a vibrant mining industry. The grantee parties also submitted that the historical mining communities of Glenden and Collinsville would have a sustainable future and allow the Queensland Government to commit to long term infrastructure and facilities for these townships.
[112] I conclude that the public interest will be served by the grant of the proposed future acts.
Section 39(1)(f) – any other relevant matter
[113] The term “any other matter” as used in s. 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 s. 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 s. 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.
[114] In this matter neither the government or grantee parties drew to the Tribunal’s attention any other matter which needed to be taken into account when making a s. 38 determination. In these circumstances, and in the absence of any submissions from the native title party, there are no other relevant matters in the material submitted to the Tribunal that I have factored into my consideration of the criteria outlined in s. 39.
Conclusion
[115] In making a determination pursuant to s. 38(1) the Tribunal is required to carefully weigh up the factors outlined in s. 39 based on the evidence lodged. It is, as has previously been stated, the exercise of a discretionary power.
[116] 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.”
[117] In this inquiry I have no evidence from the native title party with respect to the matters required to be considered in s. 39.
[118] 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 s. 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 Birri People enjoy their registered native title rights and interests on the subject lands 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 lands.
[119] 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” – s. 109.
[120] As stated earlier in this determination the Tribunal is required by s. 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.
[121] The uncontested evidence submitted by the government and grantee parties leads to the following key conclusions:
(a) the Drake and Byerwen Coal Projects will generate significant direct and indirect employment opportunities;
(b) the coal extracted will be processed exported to overseas markets;
(c) the mines will have a positive impact on the local, State and national economies;
(d) the operation of the mines will greatly assist the townships of Glenden and Collinsville and help to ensure that they have a sustainable future;
(e) the export of high quality coking coal to the Japanese and Asian export market will play a very positive part in Australia’s overall mining industry and Australia’s balance of trade;
(f) Queensland has in place a well integrated mining and environmental protection regulatory regime;
(g) The operation of the relevant mining, environmental and cultural heritage laws will go some way towards ameliorating any adverse impacts of open-cut coal mining;
(h) There is no evidence that the subject land contains any areas or sites of particular significance within the meaning of s. 39(1)(a)(v);
(i) There is no evidence that the subject land is regularly accessed by members of the native title claim group;
(j) The grantee parties have submitted that, subject to any inconsistent legal obligations and the practical operation of the mines, they will allow members of the native title party to access the subject lands and waters to exercise their registered native title rights and interests;
(k) The proposed tenements only take up a small proportion of the area comprised within the external boundaries of the Birri People native title determination application;
(l) There is no evidence that the proposed tenement areas have any endangered plant or animal species;
(m) There is no evidence that the proposed tenements contain areas of environmental significance;
(n) The subject lands and waters have been the subject of numerous previous tenement grants; and
(o) The subject lands form part of a number of pastoral holdings and the operation of those pastoral holdings 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 s. 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.
[122] As previously indicated these undisputed facts, taken together with other material, and applied to the various factors in s. 39, lead to the conclusion that the proposed future acts can be done without the imposition of conditions.
Determination
[124] The determination of the Tribunal is that the grant of Mining Leases ML 10349, 10350 and 10351 to Drake Coal Pty Ltd, and the grant of Mining Leases ML 10355, 10356, and 10357 to Byerwen Coal Pty Ltd may be done.
John Sosso
Deputy President
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