Jax Coal Pty Ltd v Smallwood and Others
[2011] NNTTA 46
•17 March 2011
NATIONAL NATIVE TITLE TRIBUNAL
Jax Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/Queensland, [2011] NNTTA 46 (17 March 2011)
Application No: QF10/23
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Jax Coal Pty Ltd (grantee party)
- 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: 17 March 2011
Hearing dates: 17 December 2010, 9 February 2011 and 4 March 2011
Representatives:
Native Title Party: Mr Michael Owens, Lawyer & Consultant
Grantee Party: Mr Joel Moss, Gadens Lawyers
Government Party: Ms Sara Newrick, State of Queensland
Catchwords: Native title – future act – application for determination for the grant of a Mining Lease – inability to execute agreement – financial benefit condition – compensation -determination that the act may be done conditionally
Legislation: Mineral Resources Act 1989 (Qld) - Part 7
Native Title Act1993 (Cth), ss 24MD, 27B, 29, 31, 35, 36, 38, 39, 51, 77, 237
Cases:Ashwin & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd WF08/24 [2008] NNTTA 114 (21 August 2008) Deputy President Sumner
Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387
Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF 05/3 [2006] NNTTA 3 (30 January 2006) Member Sosso
Cheinmora v Striker Resources NL (1996) 142 ALR 1
Evans v Western Australia (1997) 77 FCR 193
Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF 10/9 [2010] NNTTA 119 (4 August 2010) Deputy President Sosso
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People/Queensland QF 10/15, 16, 17, 18, 19, 20, 21, 22 [2010] NNTTA 210 (17 December 2010) Deputy President Sosso
Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Dianna Austin Trigg WF09/21 [2009] NNTTA 144 (5 November 2009) Member Catlin
Walley v Western Australia (1999) 87 FCR 565
Webb & Ors on behalf of South West Boojarah #2/Peter Michael Johnson/Western Australia WF10/14 [2010] NNTTA 130 (13 August 2010) Member O’Dea
Western Australia v Thomas (1996) 133 FLR 124
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169
REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION
Introduction
The State of Queensland (“government party”) issued a notice under s.29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Mining Lease (“ML”) 10346 (“the proposed tenement”) to Jax Coal Pty Ltd (“grantee party”) pursuant to the Mineral Resources Act 1989 (Qld). The notification day for the proposed grant was 10 March 2010.
The notice for the grant of ML 10346 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 twenty one (21) years with the possibility of renewals for a term not exceeding twenty one (21) years.
The proposed tenement is located approximately 12 km south of Collinsville within the Whitsunday Regional Council local government area. The area of the proposed tenement is 1944.5007 hectares which lies completely within the boundaries of the Birri People’s registered native title determination application (QUD 6244/98).
The Birri People native title determination application was entered on the Register of Native Title Claims on 2 April 1998.
Information provided by the government party indicates that the area of proposed tenement is subject to three current exploration tenements, namely:
EPC 586 – expiration date 27 November 2014;
EPC 734 – expiration date 5 April 2011; and
EPP 688 – expiration date 28 February 2019.
The grantee party contended that EPC 586 is held by Bowen River Coal Pty Ltd (which, like the grantee party, is a wholly owned subsidiary of QCoal) and authorises the conduct of high impact exploration activities.
In addition, the uncontested evidence before the Tribunal is that the area of the proposed tenement has been the subject of numerous previously granted exploration permits and authorities to prospect. Over the past 50 years at least 25 exploration tenements have been granted.
The underlying tenure of the subject land is leasehold. The majority of the area is subject to a term lease that was granted in 1959 and which will expire in 2022. The lease is not expressed to be for a particular purpose. The grantee party contends that the term lease is a pastoral development holding known as “Birralee Station” and which is currently used for grazing.
There is no evidence before the Tribunal that there are any Aboriginal communities on, or in the vicinity of, the proposed tenement.
A search by the government party of the Aboriginal Heritage Database and the Aboriginal Cultural Heritage Register identified 104 Aboriginal cultural heritage sites within the area of the proposed tenement. All of the identified cultural heritage sites are described as “artefact”. No evidence was presented to the Tribunal about the nature of these sites or their significance to the native title party.
Queensland Legislative Framework
The grant of mining leases in Queensland is governed by Part 7 of the Mineral Resources Act 1989 (Qld). In Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland QF05/3 [2006] NNTTA 3 (30 January 2006) (“Cameron”), there is a general discussion (at [25] – [28]) of those provisions. I adopt the analysis in that determination for the purposes of this inquiry.
The environmental regulation of mining in Queensland is governed by the Environmental Protection Act 1994 (Qld). Under that statute a grantee party is required to hold an environmental authority in relation to the proposed activities to be undertaken on the subject tenements. A grantee party is required to comply with each of the relevant standard environmental conditions prescribed by the Code of Environmental Compliance for Exploration and Mineral Development Projects. Finally, a duty of care is imposed upon the grantee party by the operation of the Aboriginal Cultural Heritage Act 2003 (Qld).A more detailed explanation of the relevant provisions of those Acts is set out in Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF10/9 [2010] NNTTA 119 at [11] – [14].
These provisions were also considered by the Tribunal in Cameron and the following conclusion about the operation of the regulatory regimes 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 provide 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.”
Tribunal Proceedings
On 30 November 2010 Ms Sarah Toohey of Gadens Lawyers lodged, on behalf of the grantee party, a future act determination application pursuant to s.35 in relation to the proposed tenement. The application was made more than six months after the notification day – s.35(1)(a). On 1 December 2010 I was appointed as the Member to conduct the future act determination inquiry and on that day I accepted the future act determination application pursuant to s.77.
The parties were notified on 16 December 2010 that the Tribunal intended to convene a preliminary conference on 17 December 2010. At that conference none of the negotiation parties contended that there was a failure by any of the parties to negotiate in good faith (s.36(2)), accordingly Directions for the conduct of the inquiry were made, with the grantee party complying first, and with the a 7 day time interval from grantee party compliance and that of the government and native title parties.
The grantee party indicated at that conference that it was still willing to conclude a negotiated agreement with the native title party. The grantee party stated that it had not received a response from the native title party to its latest written offer of 14 July 2010, but was prepared to resend that proposal to the native title party. The grantee party in fact resent this offer to the native title party on 17 December 2010. This email was followed up by the grantee party on 10 January 2011, wherein the grantee party advised the native title party that its offer of 14 July 2010 remained open for acceptance until 4pm on 4 February 2011.
The native title party replied to the grantee party on 3 February 2011 accepting the offer. The native title party’s acceptance of the offer was less than fulsome. Mr Owens, on behalf of the native title party said, in part: “I have been instructed to advise that my clients have with the greatest and deepest reluctance agreed to accept the offer.”
The grantee party informed the Tribunal of this in principle agreement by email dated 4 February 2011, requesting that the Directions be either vacated or varied so as to allow sufficient opportunity for the agreement to be documented and executed. This request was opposed by Mr Owens, in an email dated 4 February 2011 he said:
“My client have never requested to nor have they ever at any time whatsoever indicated nor agreed that they will enter into any agreements of any nature whatsoever with your client.
The offer made by your client was not conditional upon an agreement being entered as between the parties.
My clients will merely consent to Orders being made pursuant to s 38(1)(c) NTA that the act be done subject to your client paying the amount of $150K within ten (10) days of the date of the Order and that your client make 3 jobs available at the Jax Mine.”
The grantee party responded on the same day stating that it was not seeking a Tribunal determination pursuant to s.38(1)(c), but rather the reaching of an agreement pursuant to s.31(1)(b). The email concluded in the following terms:
“Accordingly, unless you can confirm by COB today that your clients accept the terms of the offer as contained in our client’s letter of 14 July 2010, and that your clients are prepared to enter into a Section 31 Deed and Ancillary Agreement on those terms, our clients will proceed with the determination according to the directions orders as they currently stand.”
Mr Owens responded by email dated 5 February 2011. He confirmed that the native title party had accepted the grantee party’s offer on 4 February 2011. He went on to state that the native title party did not wish to incur any further costs and sought a determination of the Tribunal. Whilst he referred to s.31(1)(a), it seems clear that what in fact he was seeking was a conditional determination pursuant to s.38.
In order to achieve some clarity and certainty I convened a status conference on 9 February 2011. During the course of that conference:
(a)the grantee party advised that it no longer considered that it had reached agreement with the native title party and it formally withdrew its request that the Directions be either vacated or varied;
(b)the native title party advised that it had, in fact, accepted the offer of the grantee party and requested the Tribunal make a determination pursuant to s.38(1)(c);
(c)the grantee party then submitted that while it accepted that the native title party appeared to have accepted its offer, that offer was always predicated on its being set out fully in formal written documents which would include further and appropriate conditions and terms;
(d)Mr. Owens advised that not only did his clients not seek to incur further costs and delays by negotiating a formal written agreement, but also such a document would be unlikely to be executed by all of the persons comprising the Applicant, with one person (Mrs. Smallwood) being unlikely to execute the document.
I determined not to vacate the Directions, and the grantee party, after due consideration, indicated its preparedness to consider the finalisation of proceedings other than by the execution of formal written documentation, and, instead, by the making of a conditional determination pursuant to s.38(1)(c).
Both the grantee and government parties provided the Tribunal with extensive contentions and supplementary material. The native title party did not provide the Tribunal with detailed contentions; Mr. Owens emailed the Tribunal on 14 February 2011 as follows:
“I am instructed to advise that my clients agree to the conditions as set out in Paragraph 19 of the Grantee Parties (sic) Statement of Contentions.
Given the Directions made at the last Mention of this matter by DP Sosso, I do not believe there is any requirement for my client to respond to the balance of the Grantee Parties (sic) Statement of Contentions nor the Statement of Contentions of the State.”
The grantee party lodged a Statement of Contentions dated 11 February 2011. The Contentions, apart from introductory material and a discussion of general legal principles, contained the following submissions on the proposed future act:
“Submission in support of determination that the Mining lease be granted
18. The Grantee Party submits that it is appropriate that the Tribunal, taking into account the matters in section 39 of the NTA, make a determination that the Mining Lease be granted.
The Mining Lease
(a) The proposed Mining Lease covers an area of about 1944.5 hectares and is located on the eastern side of the Bowen Development Road approximately 12 kilometres south of Collinsville, Queensland. The area of the Mining lease can be accessed via the existing Bowen Development Road.
(b) The Grantee party intends to construct and operate an open cut mine for the extraction of up to 1.8 million tonnes per annum of raw coking coal, which is to be initially processed at QCoal’s nearby Sonoma Mine and transported by railway to Abbott Point for export overseas.
(c) The total area of disturbed land within the area of the Mining Lease is expected to be approximately 531 hectares over the life of the mine. The proposed Mining Lease has a term of 21 years, and the mine is anticipated to have a production life of at least 18 years. Construction will commence immediately following the grant of the Mining Lease, and the mine is likely to employ up to 150 people throughout construction and operation.
Existing non-native title interests in, and uses of, the subject land (s39(2)NTA)
(d) The area of the proposed Mining Lease is located wholly within the area of Lot 618 on Crown Plan PH2106, being Pastoral Development Holding 5/618 (mining) also known as Birralee Station and which is currently used for grazing.
(e) The area of the proposed Mining Lease is currently subject to the following mining
tenements, and is also likely to have been subject to previous mining and petroleum
tenements:
(i) Exploration Permit for Coal Number 586 (EPC 586), which is held by Bowen
River Coal Pty Ltd (another wholly owned subsidiary of QCoal) and authorises
the conduct high impact exploration activities; and
(ii) Mineral Development Licence Number 392 (MDL 392), which is held by QCoal
and authorises the conduct of coal extraction and resource development activities.
(f) The area of the proposed Mining Lease consists of flat to slightly undulating terrain that has been cleared and used over a prolonged period for beef cattle grazing, as well as exploration and mining activities.
Effect of the Mining Lease on the enjoyment of the Native Title Party's registered native title rights and interests (s39(1)(a)(i) NTA)
(g) The Grantee Party is 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 proposed Mining Lease and therefore cannot state the effect of the Mining Lease on the enjoyment of those rights and interests.
(h) In any event, the Grantee Party submits that, 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 relative small scale of mining operations; and
(iv) the operation of the non-extinguishment principle on the grant of the Mining
Lease,
the grant of the Mining Lease is unlikely to have a significant impact on the Native Title Party's enjoyment (if any) of their registered native title rights and interests in the area.
Effect of the Mining Lease on the Native Title Party's way of life, culture and traditions
(s39(1)(a)(ii) NTA)
(i) The Grantee Party has no information pertaining to the way of life, culture and traditions of the Native Title Party relating to the area of the proposed Mining Lease and therefore cannot state the effect of the Mining Lease on that way of life, culture and traditions.
Effect of the Mining Lease on the development of the Native Title Party's social, cultural and economic structures (s39(1)(a)(iii) NTA)
(j) The Grantee Party has no information pertaining to the Native Title Party's development of their social, cultural and economic structures and therefore cannot state the effect of the Mining Lease on those factors.
(k) The Grantee Party notes that the grant of the Mining Lease could offer employment and commercial opportunities to the Native Title Party and therefore submits that, to the extent the Mining Lease does have any effect on the development of the Native Title Party's social, cultural and economic structures, that effect will be a positive effect.
Effect of the Mining Lease on the Native Title Party's freedom of access to the subject land, including to carry out activities of cultural significance (s39(1)(a)(iv) NTA)
(l) The Grantee Party is unaware of the access by the Native Title Party to the area of the proposed Mining Lease or the extent to which the Native Title Party carries out rites, ceremonies or other activities of cultural significance on the area of the proposed Mining Lease in accordance with their traditions and therefore cannot state the effect of the Mining Lease on that access or those rites, ceremonies or other activities of cultural significance.
(m) To the extent the Mining Lease will impact upon the enjoyment by the Native Title Party of their registered native title rights and interests, the Grantee Party intends 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 the proposed Mining Lease in circumstances where the coexistence of the activities under the Mining Lease is permissible and can be accommodated in accordance with statutory obligations and workplace health and safety regulations for a mine site.
Effect of the Mining Lease on any sites of particular significance to the Native Title Party in accordance with their traditions (s39(1)(a)(v) NTA)
(n) QCoal and the Native Title Party conducted a cultural heritage impact assessment study of the area of the proposed Mining Lease (and other areas) between August 2008 and December 2009.
(o) The results of this study and the recommended management and mitigation strategies are contained in a report prepared by Michele Bird of North QLD Cultural Heritage Pty Ltd and entitled Cultural Heritage Impact Assessment Study - QCoal Jax & Cows Projects- Collinsville, North Queensland.
(p) No sites of particular significance were identified by the Native Title Party as a result of the study, nor has the Grantee Party been otherwise informed of any sites within the area of the Mining Lease that are of particular significance to the Native Title Party.
(q) In any event, the Grantee Party intends to conduct mining activities under the Mining Lease in accordance with the recommendations contained in the report as amended and agreed to between the Grantee Party and the Native Title Party on 7 April 2010.
Economic or other significance of the grant of the Mining Lease (s39(1)(c) NTA)
(r) The Grantee Party submits that the grant of the Mining Lease will have positive economic impacts on local economy through the creation of jobs, and on the Queensland economy through royalties and rental revenue. Given the coking coal extracted from the mine is to be initially processed at QCoal's nearby Sonoma Mine and then railed to Abbot Point for export overseas, there will also be wider economic benefits to the Queensland and Australian economies. The grant of the Mining Lease will also have positive societal impacts on the local economy from the economic activity the mine is expected to generate.
Public interest in the grant of the Mining Lease (s39(1)(e) NTA)
(s) The Grantee Party submits the grant of the Mining Lease is in the public interest because it will contribute to developing and maintaining a mining industry which generates export income, employment opportunities and wealth for the local, State and National economies.
Agreement between negotiation parties on relevant issues (s39(4) NTA)
(t) The Grantee Party and the Native Title Party appear to have reached agreement on the compensation the Grantee Party is to provide to the Native Title Party for the effect of the grant of the Mining Lease on the Native Title Party's registered native title rights and interests, however there was no discussion and therefore no agreement between the parties regarding the detail of the roll-out of the compensation package.”
The government party’s Statement of Contentions includes extensive mapping and other material comprising 12 separate annexures. So far as is relevant the government party’s contentions were as follows:
“6. Section 39(1) of the NTA
6.1 The State is not aware of any information indicating that the grant of ML10346 would be likely to affect the enjoyment by the Native Title Party and the Birri People of their registered native title rights and interests. Nor is it aware of any information indicating that the grant of ML 10346 would be likely to affect the way of life of the Birri People and the development of their social, cultural or economic structures.
6.2 In any event, the State contends that the grant of ML 10346 is not likely to affect the enjoyment by the Native Title Party and the Birri People 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 that will apply to ML 10346 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 ML10346 or in close proximity to it;
(d)the limited area of ML 10346 compared to the area contained within the external boundary of the Birri Claim;
(e)the area subject to ML 10346 has been subject to prior exploration activities which may have already affected the Native Title Party and the Birri People’s enjoyment of their registered native title rights and interests;
(f)the underlying tenure is subject to interests held by third parties, particularly leasehold interests, that would have affected either the existence or the enjoyment of the native Title Party and the Birri People’s registered native title rights and interests; and
(g)the activities of third parties conducted within the vicinity of ML 10346 which would interfere with the enjoyment of the registered native title rights and interests.
6.3 The State contends that there is no evidence to suggest that the freedom of access of the Native Title Party and the Birri People and their freedom to carry out rites, ceremonies or other culturally significant activities on the land will be affected by the grant of ML 10346. As mentioned in 6.3(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 Birri People’s registered native title rights and interests.
6.4 Although 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 ML 10346, 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 affected by the mining lease. The Native Title Party bears the onus of establishing these matters.
6.5 In any event, the State contends that the grant of ML 10346 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.
6.6 The Native Title Party does not object to the grant of the mining lease. The correspondence suggests that the Birri People agree to doing of the proposed act, at least in return for certain benefits set out in corresp9ondence between the Grantee Party and the Native Title party dated 14 July 2010.
6.7 The 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.”
Legal Principles
Section 38 of the Act provides that the Tribunal must make a determination either that the relevant 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).
None of the parties have contended that the Tribunal should make a determination that the future acts not be done. The only issue before the Tribunal is whether the conditional determination sought by the grantee and native title parties can be made. This issue will be dealt with hereunder.
The criteria for making a future act determination are set out in section 39 of the Act. 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;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non-native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to 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 long accepted approach by the Tribunal to applying the criteria outlined in s.39 was explained in Western Australia v Thomas (1996) 133 FLR 124 (at 165-166) as follows:
“We accept that 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 interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to 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. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any matter we consider relevant.
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 this matter there is relatively little evidence before the Tribunal about any of the matters that need to be addressed when weighing the various criteria set out in s.39(1). Subsection 39(4), however, specifically requires the Tribunal, before making a determination, to ascertain whether there are relevant issues on which the negotiation parties agree. If there are, and the parties consent, then in making its determination the Tribunal must take that agreement into account and need not take into account the s.39(1) criteria, to the extent that they relate to those issues. This subsection has been the cornerstone of the Tribunal’s consent determination jurisprudence - Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361.
In this matter there is no unanimity of opinion between the parties on the form of determination that the Tribunal should make. The premise underlying the consent determination jurisprudence is that the parties have reached an accord in principle, but due to circumstances beyond the control of (usually) the native title party, the execution of the s.31(1)(b) agreement is rendered impossible. The parties then submit that the Tribunal make an agreed determination pursuant to s.38(1) in order to give legal effect to the agreement in principle they have reached. In these circumstances an extensive evaluation of the s.39(1) criteria is not required, as reliance can be placed on the agreement of the parties and the operation of s.39(4). However, the fundamental issue before the Tribunal is whether the form of the conditional determination sought by the grantee and native title parties is open to the Tribunal.
The grantee party submits that the proposed tenement should be granted subject to the following conditions:
“Financial Benefit
(a) Within 10 Business Days of the grant of the Mining Lease, the Grantee Party pay $100,000 to an entity nominated in writing to the Grantee Party by the Native Title Party to receive the money on behalf of the Native Title Party, provided the entity is either:
(i) an incorporated body;
(A) whose membership or shareholding is restricted by its constitution to members of the Birri People native title claim group;
(B) which complies with the standards of accountability required by the laws
under which the incorporated body was established; and
(C) which is not in administration, receivership or liquidation under any laws
applicable to the incorporated body; or
(ii) a trust created at law:
(A) whose beneficiaries are restricted by the terms of the trust deed to
members of the Birri People native title claim group;
(B) which complies with the standards of accountability and is constituted in
accordance with the laws of Queensland; and
(C) the trustee of which is not an undischarged bankrupt or which is not in
administration, receivership or liquidation under any applicable laws.
(b) If by the time the payment falls due, the Native Title Party has not nominated an entity
that satisfies these criteria, the Grantee Party hold the amount in an interest bearing bank account in trust until the Native Title Party nominates to the Grantee Party an entity that satisfies the criteria.
Employment Benefit
(c) That the Grantee Party make available, either directly or through an onsite contractor,
two full time permanent positions on the Jax Coal Mine to two members of the Birri People native title claim group, subject to and in accordance with the following conditions:
(i) The Grantee Party advise the Native Title Party of relevant employment positions, which may include traineeships, either with the Grantee Party directly or with an onsite contractor, as and when the positions arise during the term of the Mining Lease;
(ii) The Native Title Party seek suitable members of the Birri People native title claim
group to apply for the positions and submit applications to the Grantee Party onbehalf suitable candidates, being persons who:
(A) are able to pass, or have passed, all required medical checks;
(B) have sufficient levels of literacy and numeracy to be able to undertake employment;
(C) meet the required criteria for the position advertised;
(iii) the Grantee Party assess any applications received on merits and satisfaction of the above requirements, and notify the Native Title Party of any successful applications;
(iv) The members of the Birri People native title claim group who are successful in obtaining the employment positions will be employed under the Grantee Party's
or the relevant contractor's standard terms of employment, which may include a
probationary period and regular reviews.”
Conditional Determinations
As previously mentioned, s.38(1)(c) empowers the Tribunal to make a determination that the act or acts may be done subject to conditions to be complied with by any of the parties. The type of conditions that the Tribunal may impose was the subject of consideration by Carr J in Walley v Western Australia (1999) 87 FCR 565. After referring to the criteria set out in s.39(1), Carr J said (576/[13]):
“It is true that the list is open-ended, but I think that it provides a very considerable degree of guidance to what Parliament required the Tribunal to consider at the arbitral stage when making its determination. At that stage its function is to determine whether the act may or must not be done and, if it may be done, whether conditions should be imposed. Accordingly, in my view, the above list also 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 (being one of the three matters for determination referred to in s 38(1)). The list has as its common theme a relationship with the likely impact of the future act in question.”
A broad interpretation of s.38(1)(c) was also given by Nicholson J in Evans v Western Australia (1997) 77 FCR 193. His Honour said (213):
“It is necessary to go to the Act to ascertain what it was Parliament authorised in order to determine whether the conditions under challenge conform with the Act or not. Turning firstly to the language in which the power to impose conditions is created, there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2). It is apparent the conditions must be attached to ‘a determination that the act may be done’ subject to the conditions.
The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed.
The consequences flying from the exercise of the power are the proposed act may only be done as if the conditions were terms of a contract among the negotiation parties: the conditions are also subject to overrule: s 42(1); and where the conditions relate to compensation, there is the requirement for payment into trust: ss 41(3) and 52.
From the nature of these provisions there is certainly a requirement for linguistic certainty because, absent it, the conditions could not operate as in contract and provisions for payment could fail.”
Further, s.27B provides that conditions made pursuant to s.38(1)(b) may provide for procedures to be followed by the negotiation parties for dealing with issues that may arise as a result of or otherwise, in relation to the doing of the future act.
The government party, while not opposing the making of a conditional determination of the type requested by the grantee and native title parties, nonetheless submitted as follows:
“... assuming that there is no s 31 agreement, the Tribunal must characterise the monetary amounts that the Birri People seek to have included as a condition of the determination. The letter of 14 July 2010 refers to a ‘total compensation package’. If the amount mentioned in that letter were to be properly characterised as constituting part of the compensation for the future act, then the Tribunal would have no power to require the Grantee Party to provide the payments as a condition for the grant of ML 10346.”
The letter referred to by the government party was from Ms. Margarita Escartin of Gadens Lawyers to Mr. Michael Owens. In her letter, Ms. Escartin confirmed the grantee party’s commitment to negotiating an agreed outcome with the Birri People for the grant of ML 10346. In referring to the native title party’s counter offer of a payment of $500,000 upon grant of the proposed tenement and $200,000 per annum for five years, she described it as “a total compensation package of $1.5 million dollars.” This counter offer was rejected, and, instead, the proposal outlined above was put forward and was described as “a total compensation package at value of $2.1 million dollars.”
The grantee party in an emailed letter of 3 March 2011 ostensibly changed its position, following the circulation of an email on 26 February 2011 from Mr Owens. In that email he said:
“We confirm our earlier advice that Mrs Grace Smallwood is now once again acting as one of the persons comprising the Birri Applicant and in the best overall interests of the Birri People.
We further confirm that Birri request an early resolution of this matter as they are not now prepared to expend further time and money on the matter.
As a result, we are of the view that the Tribunal can now proceed to deal with this matter by way of consent determination.”
A number of recent Tribunal consent determinations were made in circumstances where, although all of the persons comprising the Applicant of a native title party have reached an accord with the other negotiation parties, nonetheless for logistic, financial or other reasons a formal agreement could not be executed. In these circumstances there has arisen a practice in Western Australia to facilitate the completion of the negotiations by the Tribunal formally making a consent determination – see Ashwin & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd [2008] NNTTA 114, Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Dianna Austin Trigg [2009] NNTTA 144 and Webb & Ors on behalf of South West Boojarah #2/Peter Michael Johnson/Western Australia [2010] NNTTA 130. The request by Mr. Owens was of a similar type to those dealt with in Western Australia and, provided the grantee and government parties agreed, there was, on its face, no impediment to the making of a consent determination of the type sought.
However, by email letter of 3 March 2011, the grantee party refused to grant its consent to the making of a consent determination so far as it related to the “financial benefit” condition. The reason for the grantee party so refusing was as follows:
“(a) the ‘Financial Benefit’ conditions concern a payment to the Birri People that is properly identified as compensation in relation to the grant of the Mining Lease; and
(b) The Tribunal does not have power to make a determination containing a condition for payment of compensation, irrespective of whether all negotiation parties consent to the determination being made subject to such a condition (Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 at [194] to [196]; Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50 at [18]).
A further status conference was convened on 4 March 2011 in order to obtain some clarity about the position of the parties. At that conference the issue of what constitutes “compensation” was addressed. In particular, I was concerned to ascertain the basis upon which the grantee party had agreed to make a monetary payment to the native title party. Following the conference but on the same day, the grantee party by email letter clarified its position as follows:
“In light of the Tribunal’s exposition of the term ‘compensation’ under the Native Title Act 1993 (Cth), our client no longer maintains that the ‘Financial Benefit’ condition contained in paragraph 19 of its statement of contentions is properly identified as compensation. Rather, and as submitted during the conference this morning, our client confirms that the payment forms part of a proposed commercial-in-confidence arrangement between our client and the Birri People as consideration for the Birri People’s consent to the grant of the Mining Lease. On this basis, it is within the power of the Tribunal to make a determination subject to the ‘Financial Benefit’ condition.”
Despite the fact that the native title and grantee parties consented to the Tribunal making a determination conditional on the financial benefits and employment terms previously set out, the government party was of a different view. By email letter of 9 March 2011 the government party formally refused to agree to the making of a conditional determination of the type sought by the grantee party. The reasons adduced for taking this position are set out below:
“1. In paragraphs 10.6 and 10.7 of the State’s Statement of Contentions filed 11 February 2011, the State said that if the amount of money mentioned in the letter of 14 July 2010 and the employment of two Birri People were properly characterised as compensation for the grant of ML 10346, the Tribunal would have no power to make either the payment of the money or employment of the two Birri People conditions of a grant made under s 38(1)(c) of the Native Title Act 1993 (Cth) (NTA). The State does not resile from this position. It is a matter for the Tribunal to characterise whether the amount of money or the employment constitute compensation for the grant of ML 10346.
2. As the State was not a party to the negotiations it neither consents to nor opposes the proposition that the amount of money and the employment constitute compensation for the grant of ML 10346.
3. Further, the State is of the view that s 39(4) of the NTA does not assist the Tribunal with the task of deciding whether the amount of money and the employment can be characterised as compensation for the grant of ML 10346. Section 39(4) of the NTA is directed to factors outlined in s 39(1), none of which refer to compensation for the future act.”
As the government party was not prepared to join with the native title and grantee parties in seeking that the Tribunal make a consent determination, it was not possible to proceed and make a conditional determination applying the principles outlined in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 and Foster v Copper Strike Ltd (2006) 200 FLR 182.
However, though the resolution of this inquiry by means of a consent determination is not possible, the Tribunal still has an extant future act determination application before it, and it has a duty to make a determination pursuant to s.38. None of the negotiation parties object to the Tribunal making a conditional determination of the type sought by the grantee party, but the government party, while not opposing it, has properly raised the issue of whether the Tribunal has the power to make it. As the government party contends, this question is inextricably linked to the characterisation of the proposed benefits.
There are numerous Tribunal determinations on the question of imposing conditions relating to compensation paid to native title parties for the doing of future acts. At the outset, however, it must be emphasised there is one fundamental proposition, namely that the Tribunal has no power to make a determination containing a condition for payment of compensation to a native title party – Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387 at 410/[66] per Deputy President Sumner. This determination has proceeded on the basis of that uncontested proposition.
Both the government and grantee parties assisted the Tribunal by drawing to my attention the following statement of the law given recently by Deputy President Sumner in Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169 (at 223/[196]):
“In my view the law relating to the powers of the Tribunal to impose conditions for the payment of monetary amounts is clear. For the reasons summarised above in Australian Manganese/Nyiyaparli, it is not within the Tribunal’s powers to impose conditions of the kind sought by the native title party for the awarding of compensation. It can be accepted that the Tribunal has power to direct the payment of monies to the native title party for matters which it must attend to under conditions such as the conduct of heritage surveys or attendance at liaison committee meetings. However, once a payment or benefit is properly identified as compensation the Tribunal has no power to impose provision of it by way of condition. Its powers are limited to imposing a condition for bank guarantee in favour of the Registrar of the Tribunal (s 41(3)) to secure the monies on account of any future determination of compensation by the Court.”
As Deputy President Sumner highlights, the threshold issue to be determined is whether the payment or benefit can be properly identified as “compensation”. That term is not defined by the Act. However, s.51(1) highlights that native title holders have an entitlement to the payment of compensation “for any loss, diminution, impairment or other effect of the act on their native title rights and interests.” It is not necessary for the purposes of this determination to undertake an exhaustive examination of the law governing the determining of compensation, except to note that the relevant provision in the case of future act inquiries is s.51(3) (“similar compensable interest test”), and the proper application of the law was the subject of detailed analysis in Western Australia v Thomas (1996) 133 FLR 124. I adopt, so far as is relevant, the reasoning of the Tribunal (at 193-202) in that determination for the purposes of this inquiry.
The awarding of compensation is payment for a loss sustained or injury done, in this context, by the deleterious impact of the doing of the future act on registered native title rights and interests. Consequently, a payment or benefit can be characterised as “compensation” if the primary reason for the payment or conferral of the benefit is an attempt to recompense those persons claiming or holding native title for the likely disruption and damage of the doing of the future act on the exercise of those persons’ native title rights and interests.
In this matter the native title and grantee parties engaged in extensive commercial-in-confidence negotiations. The end result of those negotiations was an agreement for the payment of a sum of money and the provision of employment benefits to the native title party. Nonetheless, because those negotiations were confidential, the rationale for those payments was not immediately clear. When pressed at the status conference of 4 March 2011, the representatives of the grantee party conceded that as a good corporate citizen it wished to maintain good relations, inter alia, with members of the claim group. It also conceded that there were other matters that were the subject of negotiations apart from native title, including cultural heritage. In short, the negotiations were apparently wide ranging and covered a number of matters.
It is not clear to me that the proposed payment of $100,000 and the employment of two members of the Birri People on a permanent and full-time basis were intended to constitute a full and fair settlement of the likely injurious impact that the mining operations would have on the registered native title rights and interests of the native party. It is too broad a proposition that a payment of money agreed by the negotiation parties must invariably be characterised as “compensation”. When characterising whether the payment of money or the provision of other benefits are “compensation” the Tribunal is required to weigh up all of the evidence before it. The primary question that must be asked is this: was the benefit agreed to primarily or calculated solely on the basis that it was a fair payment for the likely injurious ramifications of the doing of the future act on the native title party’s registered native title rights and interests?
If the answer to that question is in the affirmative, then the payment is in the nature of compensation, and the provisions of the Act relating to compensation payments need to be applied. However, where the answer to that question is in the negative a different result necessarily follows.
Neither the Tribunal nor the government party were privy to the negotiations between the grantee and native title parties. It would be inappropriate for the Tribunal to attempt to go behind, or otherwise question, the information provided by the grantee party on the nature of those negotiations. The uncontroverted material before the Tribunal is that the proposed payment of money and employment benefits flowed from broad ranging and vigorous negotiations.
When characterising whether the payment of money or the conferral of a benefit is “compensation” the Tribunal is not constrained by the nomenclature used by the parties. In this matter, the fact that Ms. Escartin referred to the payments as a “compensation package”, in no way inhibits the Tribunal weighing up all the evidence before it and reaching a conclusion based on the facts as distinct from the terminology of the parties in the course of negotiations.
The material before the Tribunal about the negotiations is not extensive. I have however formed the view that the financial and employment package put forward by the grantee party, and very reluctantly accepted by the native title party, was the “price” that the former was prepared to pay and the native title party was prepared to accept for the agreement of the native title party to the doing of the proposed future act. It would be entirely unrealistic and artificial to characterise what appear to be basic and less than amicable negotiations, as an attempt by them to rationally and objectively calculate a compensation package for the likely injurious affection to native title occasioned by the doing of the future act. The financial and employment package negotiated here, was it appears, a commercial settlement based on a range of factors, with native title being only one of those factors. The “right to negotiate” process provided the platform and opportunity to reach a settlement. But, although providing the platform, it did not constrain the nature of the discussions. Whether the “deal” put forward by the grantee party would constitute a fair compensation package is impossible for me to ascertain. Indeed I have formed the view, consistently with the characterisation by the grantee party that this was “consideration”, that the composition of the package was almost totally unrelated to issues pertaining to injurious affection. In these circumstances, it is open to the Tribunal to make a conditional determination along the lines requested by the grantee and native title parties. In determining whether it is appropriate to do so, consideration must now be given to the criteria specified in s.39.
I was able to reach this conclusion because both the grantee and native title parties had reached agreement on the quantum of the financial package and employment benefits. In these circumstances the focus of this part of my inquiry was the question of the characterisation of the “deal”: was it in the nature of compensation or not? Having formed the view that it was not in the nature of compensation, I have been able to proceed on the basis that a conditional determination is an option available for the Tribunal. The situation would have been quite different if the parties had not agreed on the quantum of their deal. In such a circumstance a more forensic approach by the Tribunal would be required, both in determining whether such a figure could properly be ascertained, and also more intimately focusing on the question of injurious affection to native title. This determination then should be read strictly in accordance with the facts before the Tribunal, and particularly the fact that the financial package was eventually agreed by the grantee and native title parties.
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 native title 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 will apply – 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 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 term lease and has been the subject of the grant of at least 25 exploration permits and authorities to prospect since 1958.
No evidence has been provided of 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. 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 Birri 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 a term lease which was originally granted in 1959;
(c) the operation of the non-extinguishment principle in s.24MD(3)(a) to the granting of the mining lease; and
(d) 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.
Subparagraph 39(1)(a)(ii) – the way of life, culture and traditions of any of those parties
In Western Australia v Thomas (1996) 133 FLR 124 the Tribunal said (169-170): “there will need to be evidence of the way of life, culture and tradition of the native title parties and of the effect of the proposed act on them.”
There is no evidence before the Tribunal on the way of the life, culture and traditions of the Birri People. However, the fact that the Applicant has reached an “in principle” accord with the grantee party for the doing of the proposed future act leads to the conclusion that the proposed mining operations are unlikely to have a deleterious impact on the way of life, culture and traditions of the native title party.
Subparagraph 39(1)(a)(iii) – development of social, cultural and economic structures
While there is no evidence of any negative impacts on the development of social, cultural and economic structures of the native title party, the fact that the “deal” offered by the grantee party will result in the employment of at least two Birri People on a full-time basis, as well as the payment of money, is supportive of the proposition that there will be positive impacts on the development of the economic structures of the claim group.
The grantee party contended that the proposed mine will have a productive life of approximately 18 years and around 150 workers will be employed during the construction and mining phases. There may well be other employment and contracting opportunities for Birri People during this time. Certainly the employment of two Birri People is an agreed minimum benefit, and the very fact that a coal mine will come on stream in a remote part of Queensland, necessarily brings with it economic and related benefits and opportunities for the local community, including members of the claim group residing in the locality.
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 rites, ceremonies or other activities of cultural significance being carried out on the proposed tenement, or in the immediate vicinity; and
(c) the relatively small area of land disturbance (531 hectares) involved in the operation of the open cut coal mine compared with the large amount of land and waters covered by the Birri People’s native title determination application.
In addition, the grantee party has contended that it will facilitate, where legally and practically possible, the ongoing access of members of the native title party to the area of the proposed tenement:
“To the extent the Mining Lease will impact upon the enjoyment by the Native Title Party of their registered native title rights and interests, the Grantee Party intends 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 the proposed Mining Lease in circumstances where the coexistence of the activities under the Mining Lease is permissible and can be accommodated in accordance with statutory obligations and workplace health and safety regulations for a mine site.”
Accordingly, I find that the grant of the proposed tenement is unlikely to have 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.
The government party contended that, while a search of the Aboriginal Cultural Heritage Register had identified Aboriginal cultural heritage sites within the area of the proposed tenement, it was not aware of any area or site of particular, as distinct to ordinary, significance to the native title party. Reference was made to a recent Queensland determination – Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People/Queensland [2010] NNTTA 210 (“Queensland Gas”). In that matter, the Tribunal was also faced with a situation where the native title parties had submitted no material. When evaluating this paragraph the Tribunal said (at [70] – [73]):
“[70] However, no evidence has been provided to the Tribunal by either native title party of any sites of particular significance on or near to any of the tenements. The government party informed the Tribunal that a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register identified a number of Aboriginal cultural heritage sites within the area of the tenements. These sites are set out in annexure 18 to the government party’s Statement of Contentions. A perusal of this material indicates that there are a great many sites identified, and certainly in excess of 100. Almost all of these “sites” are described in short hand fashion either as “tree” or “artefact”.
[71] As previously highlighted there is no further material before the Tribunal about any of these sites. For example, there is no evidence describing any site, its significance or its relevance to the laws and customs of either native title party. In short, there is no material before the Tribunal that suggests that any of these sites is of ‘particular significance’ as explained by Carr J.
[72] An area or site can only be characterised as of ‘particular significance’ if it is identified by a native title party, its significance explained and that the person identifying the area of site has the necessary authority to speak about the traditions of the claim group – Little v Western Australia [2001] FCA 1706. 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 a native title party. Possible exceptions to this proposition are where there is direct and compelling evidence from government databases, previous cultural heritage studies or previous direct evidence from a qualified member of the claim group.
[73] I find that there is no direct or indirect evidence before the Tribunal identifying any areas or sites of particular significance to members of either native title party.”
As in Queensland Gas, there is no evidence before the Tribunal of any areas or sites of particular significance to the native title party located within, or near, the area of the proposed tenement. Further, the uncontested contention of the grantee party is that QCoal and the native title party conducted a cultural heritage impact assessment study of inter alia, the proposed tenement area between August 2008 and December 2009. No areas or sites of particular significance were, it was submitted, identified by the native title party during the course of that survey, and the grantee party has not subsequently been informed of any such areas or sties.
Having regard to the uncontested submissions of the grantee party, and the absence of any information on areas or sites of particular significance from the native title party, I find that there are no areas or sites of particular significance to the native title party located on, or in the vicinity of ML 10346.
Subparagraph 39(1)(b) – interests, proposals, opinions or wishes of the native title party
The only information before the Tribunal relevant to this subparagraph is contained in the email letters of Mr. Owens, which have been set out previously, and his oral submissions to the Tribunal at the status conferences I have convened. Mr. Owens has made it very clear throughout that:
(a) the native title party engaged in detailed negotiations with the grantee party;
(b) the native title party had no in principle objection to the mining lease being granted;
(c) the native title party was disappointed with the quantum of the offer eventually put forward by the grantee party;
(d) the inability of the Applicant of the Birri People to unanimously agree to the deal was resolved with the involvement and support of Mrs. Smallwood; and
(e) the native title party was not prepared to expend further time, money and effort in negotiating the finer details of a deed to record the “in principle” agreement but supported the Tribunal making a conditional determination pursuant to s.38(1)(c).
Accordingly, the material before the Tribunal is that the native title party supports the grant of the proposed tenement and, in that regard, is keen to ensure that the Tribunal makes a conditional determination that reflects the tenor of the agreement reached with the grantee party.
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] as follows:
“[70] 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.
[71] A few observations can be made about the statutory task required of the Tribunal. First, the paragraph focuses on the significance of the act. It is not a generalized inquiry about the importance of exploration or mining to the economy (localized or national). It is a specific evaluation about the impact of the future act the subject of the inquiry. Accordingly, the Tribunal is not required under this paragraph to look any further than the evidence of how the proposed future act will impact on the economies and persons specified. Issues about the benefits of the mining industry to the health of the local, Queensland or Australian economy are not relevant to this paragraph. The only focus of this paragraph is the act in question and the only issue which the Tribunal is required to evaluate is the significance of the future act. The symbolic, cumulative or ripple impacts of the future act fall outside the purview of this paragraph.
[72] 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.
[73] 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.”
As previously pointed out, the grant of the proposed tenement is likely to result in the creation of approximately 150 jobs for persons in the local community, including members of the native title claim group. The proposed mine will be an open cut operation designed to extract up to 1.8 million tonnes of raw coking coal each year. Importantly the coal will be initially processed at QCoal’s nearby Sonoma Mine and then transported by rail to Abbot Point for export.
The uncontested material before the Tribunal is that the grant of the proposed tenement will be of significant economic importance both locally and regionally. It will result in the creation both directly and indirectly of employment opportunities for many persons in the Collinsville and Mackay communities, including Indigenous residents. It will result in the immediate creation of two permanent full-time jobs for Birri People, with many other employment and related opportunities for other members of the native title claim group.
I therefore find that the grant of the proposed tenement is likely to result in the creation of employment and wider wealth opportunities for numerous persons in the Collinsville and Mackay regions and also for members of the native title claim group. The implications of the grant of the proposed tenement for the broader State and national economy is dealt with in the consideration of subparagraph 39(1)(e).
Subparagraph 39(1)(e) – the public interest
Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this subparagraph to take into account the public interest in developing and maintaining a vibrant mining industry. In this regard reference can be made to the following observations of Nicholson J in Evans v Western Australia (1997) 77 FCR 193 at 215:
“Where there is evidence the proposed act will have the effect of contributing to on-going exploration essential to the health of the mining industry and the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry.”
The grantee party has set out at some detail the significant benefits that the grant of the mining lease will generate for the national economy. It is clear from the material before the Tribunal that the proposed open cut coal mine is part of wider operations in the region by the grantee party, and will dovetail into those related operations. The cumulative effect is to ensure the maintenance of a well integrated and commercially viable coal mining operation that generates jobs and wealth locally, for the State of Queensland and for Australia.
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 s.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).
There is scant material before the Tribunal which materially assists in identifying and evaluating any other matter of relevance. Clearly, the Tribunal is entitled to take into account the environmental protection measures imposed by the government party. In that regard the government party pointed out that under the Environmental Protection Act 1994 (Qld), the grantee party is required to hold an environmental authority, which in turn requires the grantee party to comply with the Code of Environmental Compliance for Mining Lease Projects – see [12]. Matters dealt with in the Code include requirements to minimise disturbance to land and vegetation and not carry out activities within 100 metres of an identified historical, archaeological or ethnographic site.
I find that there is in place in Queensland a regulatory regime which operates so as to minimise where possible, the deleterious environmental impacts of mining activities. I also find that the grantee party is currently operating in Queensland, and there is no evidence before me that it has not complied with the relevant statutory requirements contained in the Environmental Protection Act 1994 (Qld).
Conclusion
The grant of the proposed tenement will result in significant economic benefits for the economies of various localities in central Queensland as well as maintaining a vibrant coal mining industry in Queensland which is of major significance to the national economy.
The very nature of open cut coal mining is environmentally intrusive, and potentially disruptive to native title parties being able to enjoy their registered native title rights and interests. However, it is clear from the material before the Tribunal that the grant of the tenement will have minimal negative impacts on the native title party and in fact, will produce a number of financial and employment benefits.
The negotiations between the grantee and native title parties ultimately ended on a less than amicable note, but this does not derogate from the fact that the native title party still supports the grant of the proposed tenement. There is no material before the Tribunal that the grant of the mining lease will have any negative impact on the cultural, social or physical lives of members of the native title claim group.
It is unfortunate that in this matter, there were at the outset some problems within the Applicant. These problems were later resolved but, due to the government party having doubts about the power of the Tribunal to make a conditional determination of the type sought by the grantee and native title parties, a consent determination was not possible.
In any event, I have formed the view that the financial and employment benefits package negotiated cannot be characterised as “compensation” and accordingly, it is open to the Tribunal to make the conditional determination sought. Further, having regard to the factors to be taken into account in s.39, I have reached the conclusion that it is appropriate that a conditional determination of the type sought by the grantee and native title parties should be made.
Determination
The determination of the Tribunal is that the grant of Mining Lease 10346 to Jax Coal Pty Ltd may be done subject to the following conditions:
Financial Benefit
(a) Within 10 Business Days of the grant of Mining Lease 10346, the grantee party pay $100,000 to an entity nominated in writing to the grantee party by the native title party to receive the money on behalf of the native title party, provided the entity is either:
(i) an incorporated body;
(A) whose membership or shareholding is restricted by its constitution to members of the Birri People native title claim group;
(B) which complies with the standards of accountability required by the laws
under which the incorporated body was established; and
(C) which is not in administration, receivership or liquidation under any laws
applicable to the incorporated body; or
(ii) a trust created at law:
(A) whose beneficiaries are restricted by the terms of the trust deed to
members of the Birri People native title claim group;
(B) which complies with the standards of accountability and is constituted in
accordance with the laws of Queensland; and
(C) the trustee of which is not an undischarged bankrupt or which is not in
administration, receivership or liquidation under any applicable laws.
(c) If by the time the payment falls due, the native title party has not nominated an entity that satisfies these criteria, the grantee party hold the amount in an interest bearing bank account in trust until the native title party nominates to the grantee party an entity that satisfies the criteria.
Employment Benefit
(c) That the grantee party make available, either directly or through an onsite contractor, two full time permanent positions on the Jax Coal Mine to two members of the Birri People native title claim group, subject to and in accordance with the following conditions:
(i) The grantee party advise the native title party of relevant employment positions, which may include traineeships, either with the grantee party directly or with an onsite contractor, as and when the positions arise during the term of Mining Lease 10346;
(ii) The native title party seek suitable members of the Birri People native title claim group to apply for the positions and submit applications to the grantee party on behalf suitable candidates, being persons who:
(A) are able to pass, or have passed, all required medical checks;
(B) have sufficient levels of literacy and numeracy to be able to undertake employment;
(C) meet the required criteria for the position advertised;
(iii) The grantee party assess any applications received on merits and satisfaction of the above requirements, and notify the native title party of any successful applications;
(iv) The members of the Birri People native title claim group who are successful in obtaining the employment positions will be employed under the grantee party's or the relevant contractor's standard terms of employment, which may include a probationary period and regular reviews.
John Sosso
Deputy President
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