Gregory Mark Jensen/Scott Gorringe & Ors (Mithaka People)/Queensland - [2011] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

Gregory Mark Jensen/Scott Gorringe & Ors (Mithaka People)/Queensland, [2011] NNTTA 41 (14 March 2011)

Application No: QF10/24

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

Gregory Mark Jensen (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: 14 March 2011

Hearing dates: 17 January and 31 January 2011

Representatives:

Native Title Party: Scott Gorringe, Lorraine McKellar, Ada Martin, Jocelyn Haylock, Richard McCarthy, Rose Turnbull
Grantee Party: Mr Gregory Mark Jensen

Government Party: Ms Sara Newrick, 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, 269, 276, 279, 280, 281, 282
Mineral Resources Regulation 2003 (Qld) s 18
Native Title Act1993 (Cth), ss 24MD, 29, 35, 38, 39, 75, 77, 237, 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
Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF 10/9 [2010] NNTTA 119 (4 August 2010) Deputy President Sosso
Little v Western Australia [2001] FCA 1706
Queensland Gas Company Limited & Ors/Iman People; Mandandanji People/Queensland QF 10/15, 10/16, 10/17, 10/18, 10/19, 10/20, 10/21 and 10/22 [2010] NNTTA 210 (17 December 2010) Deputy President Sosso
Re Jensen [2005] QLRT 166
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 19 April 2006, the State of Queensland (“government party”) gave notice under s.29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Mining Lease (ML 95508) to Gregory Mark Jensen (“the grantee party”): 19 April 2006 was also specified 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 not subject to any extant exploration or mining tenements. Uncontested information provided by the government party indicates that six prior exploration tenements have been granted over part or all of the subject area in the period 1955 – 2005.
The underlying tenure of the tenement area is a pastoral lease. The current lease commenced on 1 January 1982 for a term of 30 years, with the option of a further extension of 20 years.
The uncontested contention of the government party is that it is not aware of any Aboriginal community on, or within the vicinity of, the proposed tenement.
The uncontested contention of the government party is that no Aboriginal cultural heritage sites on the proposed tenement can be located on the Aboriginal Cultural Heritage Database or the Aboriginal Cultural Heritage Register. No member of the native title party presented the Tribunal with any evidence, or made any submissions, that there were any sites of particular significance within the boundaries of the proposed tenement.
The proposed tenement is located approximately 80 kilometres west-north-west of Jundah, within the Barcoo Shire Council local government area, and covers an area of approximately 15.27 hectares.
The grantee party applied, pursuant to s.245 of the Mineral Resources Act 1989, for the proposed tenement. No objection was lodged before the closing date for objections which was 21 August 2006.
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.
Prior to the proposed tenement being notified pursuant to s.29, it was also the subject of consideration by the Land and Resources Tribunal: Re Jensen [2005] QLRT 166. There was an unopposed application under s.245 of the Mineral Resources Act 1989 for the grant of a mining lease. At that time the Land and Resources Tribunal was required, pursuant to s.269 of the Mineral Resources Act 1989, to investigate the application and make a recommendation to the Minister for Natural Resources and Mines whether to grant or reject the application. Pursuant to s.269(4) the Land and Resources Tribunal was required to take into account a range of factors, including the past performance of the applicant and any disadvantages that may flow from the grant but specifically if there would be any adverse environmental impact. Finally the Land and Resources Tribunal had to consider whether the public right and interest would be prejudiced by the grant. In recommending the grant of the mining lease, President Koppenol made the following findings (at [4]):
“The mining registrar has certified that the applicant has complied with the requirements of the Act and the applicant has lodged the relevant declarations of compliance. Surface trace on the area indicates that it is mineralised. The mining program envisages progressive small scale open cut mining by mobile earthmoving machinery. All supporting infrastructure will be provided on site. The size and shape of the area applied for encompasses the area which is potentially opal bearing surrounding area for camp site and stockpiles. A 10 year term is sought to give sufficient time to mine the area on a seasonal basis. The applicant has confirmed his financial and technical capabilities to carry on the mining operations. He has many years experience in opal mining. There is no evidence that his past performance has not been satisfactory. The land is currently used for low intensity grazing – its only possible use apart from mining, which I regard as an appropriate land use which conforms with sound land use management. The underlying land tenure is such (pastoral holding) that native title may exist. The application therefore cannot be granted until all relevant provisions of the Native Title Act 1993 (Cth) have been complied with. There are no section 269(4)(h) holders or applicants. The mining activities will be carried out in accordance with the draft environmental authority (mining activities) issued by the Environmental Protection Agency. That should minimise any adverse environmental impact. There is no evidence that the public right and interest will be prejudiced or of any good reason why this application should be refused.”

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 2003.
The general conditions prescribed for each granted mining lease are prescribed by s.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 1 December 2010 Mr. Jensen lodged with the Tribunal 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 (19 April 2006) – s.35(1)(a).
On 2 December 2010 I was appointed as the Member to conduct the future act determination inquiry and on 14 December 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 s.29 notice, Mr Jensen stated:
“We have been trying to negotiate a reasonable compensation through Email and by Phone for some 3 years now to no avail. We have been in contact with Scott Gorringe of the Mithaka people on a number of occasions to try to come to some agreement and we keep getting told that he will organise a meeting with the mob but nothing ever comes of it and our last few emails have gone unanswered, we started negotiations with the Mithaka people through Scott Gorringe around Jan 08, prior to this the mines dept were trying to negotiate also with no success”.
I convened a Directions Hearing on 17 January 2011 at which Ms. Sara Newrick, on behalf of the government party, appeared in person and Mr. Jensen, who is not legally represented, participated by telephone. The native title party’s participation presented some difficulties. The native title party was not, for the purposes of this inquiry, legally represented. Although attempts had been made to contact the persons collectively comprising the Applicant, there was no appearance by any of those persons. In that regard the Tribunal wrote to each of the persons comprising the Applicant informing them of the Directions Hearing. However, as the Tribunal did not have the addresses of the persons comprising the Applicant, the letters were given to Queensland South Native Title Services for transmission. Queensland South Native Title Services has the addresses of the Applicant as it represents the claim group in its substantive native title proceedings in the Federal Court. For privacy reasons QSNTS was not able to provide the addresses to the Tribunal. Although the letters were requested to be sent registered mail, it was not clear on 17 January 2011 which of the persons comprising the Applicant has actually received notice of the proceedings. In these circumstances, I adjourned the matter until 31 January 2011.
On 18 January 2011 the Tribunal wrote to each of the persons comprising the Applicant as follows:
“Yesterday, on Monday 17 January 2011, the Tribunal held a preliminary conference into the above matter. I have enclosed a copy of notes summarising that conference for your information.
Because of the recent flooding events in South East Queensland and because the Tribunal did not have delivery confirmation slips to show that each of you had received our letter dated 16 December 2010, informing you of this conference (copy enclosed) no directions were set yesterday.
However, under s 36 of the Native Title Act, the Tribunal is under obligation to make a determination as soon as practicable. Deputy President Sosso has therefore directed the holding of a further preliminary conference on Monday 31 January 2011, at 10.00am. This conference will be convened at the Tribunal’s Brisbane office on Level 30, 239 George Street, Brisbane.
It is the intention of the Tribunal to set directions on that date. You have the opportunity and the right to be present at the conference in person or by telephone, and to make submissions to the Tribunal on what those directions should be.
If for any reason you would like to attend the conference but are unable to do so, please inform us before the conference. If we have not received word from any of the Mithaka People who comprise the Applicant before the conference, directions may be set having regard to the submissions of the State of Queensland and the Grantee. Any correspondence or other material provided in relation to this matter prior to the conference may be considered as part of Deputy President Sosso’s deliberations.”
In the interim the Tribunal had obtained the address for Mr. Scott Goringe, Ms. Joceyln Haylock and Mr. Richard McCarthy and the correspondence of 18 January 2011 was sent by registered post to each of these persons by the Tribunal. The remaining letters were sent by QSNTS. None of these letters were returned to sender.
Subsequently Ms. Nathalie Mlynarik of the Tribunal, made telephone contact with Ms. Jocelyn Haylock and informed her about the process. Ms. Haylock indicated her inability to participate in person at the next Directions Hearing due to conflicting work commitments.
Despite the best endeavours of the Tribunal only two of the persons comprising the Applicant (Ms McKellar and Mr Gorringe) participated in the Directions Hearing convened on 31 January 2011.
Mr Jensen informed the Tribunal that he had used his best endeavours to contact the persons comprising the Applicant. He resides in Tumut in southern New South Wales and 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. It was clear that there was no objection on their part to the grant of the mining lease, and, they, in fact, expressed some embarrassment and remorse that Mr Jensen had waited so long for the grant of the tenement. In short, there was no indication that there was an opposition to the grant of the tenement within the native title party.
It is a matter of public record that there are divisions within the native title party. The problems besetting the native title party were 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.” A similar situation to the matter now before the Tribunal arose in 2010 and was the subject of a previous determination: Horvatic/Gorringe & Ors (Mithaka People)/Queensland [2010] NNTTA 119 (“Horvatic’).
As with Horvatic the Tribunal must deal with the problem of a legally unrepresented native title party, the Applicant of which fails to speak with one voice. Also, as with Horvatic, it seems patently clear that the native title party does not oppose the grant of the mining tenement to the grantee party. Indeed, in both cases there appears to be good will present. Also, as with Horvatic, the grantee party is legally unrepresented. In both cases the Tribunal is dealing with sole traders of small means. The opal mining the subject of both tenements is very small scale. Also, in both cases the grantee parties have attempted, despite problems of distance, finances and age, to engage with the native title party. It is patently clear in this matter, as with Horvatic, that the grantee party has acted in good faith and to the best of his ability.

The appropriate means of conducting an inquiry in these circumstances was outlined 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 procedural fairness to each of the parties, 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] and in Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People/Queensland [2010] NNTTA 210.

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 25 February 2011, the government party said :
“6.1 The State is not aware of any information indicating that the grant of ML 95508 would be likely to affect the enjoyment by the Native Title Party of their registered native title rights and interests. Nor is it aware of any information indicating that the grant of ML 95508 would be likely to affect the way of life of the Mithaka People and the development of their social, cultural or economic structures.
6.2In any event, the State contends that the grant of ML95508 is not likely to affect the enjoyment by the Native Title Party of their native title rights and interests or adversely affect their way of life and the development of their social, cultural and economic structures because of the following factors:
(a) the statutory restrictions under the EPA the will apply to ML 95508 and the activities undertaken pursuant to it;
(b) the operation of the ACHA;
(c)there are no Aboriginal communities situated on the area subject to ML 95508 or in close proximity to it;
(d)the limited area of ML 95508 compared to the area contained within the external boundary of the Mithaka Claim;
(e) the area subject to ML 95508 has been subject to limited exploration activities which may have already affected the Native Title Party’s enjoyment of their registered native title rights and interests;
(f) the underlying tenure is subject to leasehold interests held by third parties, that would have affected either the existence or the enjoyment of the Native Title party’s registered native title rights and interests; and
(g) the activities of third parties conducted within the vicinity of ML 95508 which would interfere with the enjoyment of the Native Title Party’s registered native title rights and interests.
6.3The State contends that there is no evidence to suggest that the freedom of access of the Native Title Party and their freedom to carry out rites, ceremonies or other culturally significant activities on the land will be affected by the grant of ML 95508. As mentioned in 6.2(f), the underlying tenure of the mining lease is already subject to leasehold interests held by third parties that would have affected either the existence or the enjoyment of the Mithaka’s registered native title rights and interests.
6.4Although a search of the Aboriginal Cultural heritage Database and the Aboriginal Cultural Heritage Register undertaken by the State Register did not identify any Aboriginal cultural heritage sites within the area of ML 95508, the State is not aware of any area or site of particular, as opposed to ordinary, significance to the Native Title Party that would be effected by the mining lease. The Native Title Party bears the onus of establishing these matters.
6.5In any event, the State contends that the grant of ML 95508 is not likely to interfere with areas or sites of particular significance to the Native Title Party because of the operation of the MRA, the EPA and the ACHA on the activities that may be undertaken pursuant to the mining lease.
6.6The Grantee Party and Native Title Party are at liberty to provide material to the Tribunal but are not directed to do so. The Preliminary Conference on 31 January 2011 was attended by Lorraine McKellar and Beth Gorringe from the Mithaka People. They did not raise any concerns or objection in regard to the mining lease being granted.
6.7The doing of the proposed act is, moreover in the public interest. In Carpentaria Gold Pty Ltd/Birri People/Queensland, the Tribunal stated:
[I]t 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.
The same reasoning applies to the grant of the mining lease in this case.”

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 a number of tenement grants over the past five decades. I note, in particular, the contentions of the government party previously set out at paragraph 6.2.
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 some of the persons comprising the Applicant, was to the effect that they did not oppose the grant of the mining lease to Mr Jensen. 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.
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 those persons comprising the Applicant who attended the Directions Hearing on 31 January 2011 that they did not oppose the grant of the mining lease to Mr. Jensen.

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; and
(c)     the small area of land involved by the grant of the proposed tenement (15.2782 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. In that regard Mr Jensen stated at paragraph 11 of his Form 5:
“In July 2006 we had Mr John Gorringe and his wife the native title inspectors for the Mithika (sic) people, inspect the mine area for heritage purpose and they found nothing in Relation to cultural heritage and he informed us that we would be able to mine the area As (sic) there would be no impact on their cultural heritage of the area.”
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 Directions Hearing on 31 January 2011 and who indicated their support for the State granting the tenement to Mr. Jensen.

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. 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). In this regard I have taken into consideration the findings of President Koppenol previously outlined and the statement of Mr. Jensen at paragraph 12 of his Form 5 that he intends to “back fill all excavation to rehabilitate the land to close to its original condition.”
I have also noted that there appears to be good relations between the grantee party and the holders of the pastoral lease. At paragraph 13 of the Form 5 Mr. Jensen states: “We have had dealings with the Hubbard family, owners of the land we are to mine for approx 10 years of which we have a mutual respect for each other and they have never had a problem with us using the land for the purpose of mining. The land is used solely for cattle production.” I infer from this uncontested statement, that the grant of the mining lease will not impact detrimentally on the pastoral activities currently being undertaken over the subject land.

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 has suffered disadvantage by the delay in granting the mining lease. At paragraph 14 of the Form 5 the grantee party stated: “We feel that the length of time this has taken to try to come to some agreement is very disappointing, this has not only affected our livelihood but also our income as we have been unable to do any mining for this period of time.” There is uncontested evidence before the Tribunal that Mr Jensen 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 history of the proceedings in this Tribunal that there appears to be no opposition by any of the persons comprising the Applicant of the native title party to the grant of the mining lease to Mr. Jensen. 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 small scale opal mining by a family operation 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. Jensen 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 95508 to Gregory Mark Jensen, may be done.

John Sosso

Deputy President