Peter George Hunt/James Butterworth & Ors (Wiri People Core Country Claim)/Queensland
[2011] NNTTA 162
•16 August 2011
NATIONAL NATIVE TITLE TRIBUNAL
Peter George Hunt/James Butterworth & Ors (Wiri People Core Country Claim)/Queensland, [2011] NNTTA 162 (16 August 2011)
Application No: QF11/3
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Peter George Hunt (grantee party)
- and -
James Henry Butterworth, Ronald J Watson, Marilyn Joyce Duncan, Gregory Ross Dunrobin, Kenneth Stewuart Dodd, Graham Sauney, Oswald Alfred Skeen, Frank Tiers, Maurice Dallachy, Linda Joyce Wailu, Eileen Beryl Pegler on behalf of the Wiri People Core Country Claim
(native title party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 16 August 2011
Hearing date: 19 July 2011
Representatives:
Native Title Party: Mr Perry Russell, Creevy and Russell Lawyers
Grantee Party: Mr Peter George Hunt
Government Party: Ms Julieanne Butteriss, State of Queensland
Catchwords: Native title – future act – application for determination for the grant of mining claim – determination that the act may be done.
Legislation: Aboriginal Cultural Heritage Act 2003 (Qld) ss 9, 10, 23, 28
Code of Environmental Compliance for Mining Claims and Prospecting Permits
Environmental Protection Act 1994 (Qld)
Mineral Resources Act 1989 (Qld) ss 50, 52, 53, 55
Mineral Resources Regulation 2003 (Qld) ss 9, 10
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
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
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 30 August 2010, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Mining Claim (MC 72064) (“the proposed tenement”) to Peter George Hunt (“the grantee party”). For the purpose of s. 29(4)(a) 27 October 2010 was specified as the notification day.
The notice stated that the Mining Claim 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.
Mining claims are regulated by Part 4 of the Mineral Resources Act 1989 (Qld). The holder of a mining claim may, pursuant to s. 50 of the Mineral Resources Act 1989, prospect for any mineral to which the mining claim applies and hand mine in accordance with the conditions of the mining claim. Limited use of machinery is permitted for the purposes of prospecting or hand mining, and moderate use of explosives may be permitted – s. 50(1)(b) and (c). A mining claim may be granted in respect of any specified minerals other than coal – s. 52.
Generally, the prescribed area of land over which a mining claim may be granted is limited to one hectare (s. 53(3)), and a person cannot at any time be holder of or have an interest, direct or indirect, in more than two mining claims – s. 55(1).
The proposed tenement is located approximately 70 kilometres west of Sarina, within the Isaac Regional Council local government area, and covers an area of approximately 0.8971 hectares.
The proposed tenement is overlapped by the Wiri People Core Country Claim registered native title determination application (QUD372/06) (“the native title party”). The area of the proposed tenement contained with the external boundary of the Wiri People Core Country Claim is approximately 0.8522 square kilometres, or approximately 95% of the area of the proposed tenement.
The Wiri People Core Country Claim native title determination application was entered on the Register of Native Title Claims on 27 August 2009. The persons who collectively comprise the applicant are James Henry Butterworth, Ronald J Watson, Marilyn Joyce Duncan, Gregory Ross Dunrobin, Kenneth Stewuart Dodd, Graham Sauney, Oswald Alfred Skeen, Frank Tiers, Maurice Dallachy, Linda Joyce Wailu and Eileen Beryl Pegler.
The approximate area contained within the external boundary of the Wiri People Core Country Claim is 5,735.57 square kilometres.
The proposed tenement area has been subject to a number of authorities to prospect and exploration permits, all of which have expired. The government party listed in Annexure 6 of its Statement of Contentions, 16 previous prospecting and exploration permits which were granted on or overlapped the area of the proposed tenement. The prior tenements were granted from the period January 1955 until March 2005.
The government advised that there are a number of other current mining claims in the vicinity of the proposed tenement, however there are no other tenements currently on or overlapping it.
The underlying tenures are a resources reserve and unallocated State land. However the government party advises that there are known to be inaccuracies in mapping data around this area and, accordingly, it cannot guarantee the accuracy of the background tenure information for the area of the proposed tenement.
The uncontested contention of the government party is that it is not aware of any Aboriginal community on, or in the vicinity of, the proposed tenement.
The uncontested contention of the government party is that no Aboriginal cultural heritage sites within the area of 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.
Queensland legislation
The grant of mining claims in Queensland is governed by the provisions of the Mineral Resources Act 1989 (Qld) and the Mineral Resources Regulation 2003. Part 4 of the Mineral Resources Act deals specifically with mining claims.
The general conditions prescribed for mining claims are prescribed by s. 81 of the Mineral Resources Act 1989. So far as is relevant, each mining claim is subject to the holder:
(a) using the land comprising the proposed tenement bona fide for the purpose for which the mining claim was granted and in accordance with the Mineral Resources Act 1989 and conditions of the claim and for no other purpose;
(b) not assigning or mortgaging the mining claim, or any part thereof, without the written consent of the mining registrar;
(c) furnishing at such times, and in such manner as required by the mining registrar, reports, returns, documents, statements and other materials;
(d) maintaining the surface of the proposed tenement in a tidy state;
(e) carrying out improvement restoration for the mining claim;
(f) conducting prospecting and mining by such method or in such manner as is provided for in, or applies in respect of, the mining claim;
(g) not erecting any permanent or other structure and prior to the termination of the claim for whatever cause, removing any building or structure erected and all mining equipment and plant;
(h) not, without the prior approval of the mining registrar, obstructing or interfering with any right of access had by any person in respect of the land;
(i) paying prescribed rentals and royalties, local authority rates and charges and depositing any security required by the mining registrar;
(i) maintaining during the term of the claim, the marking out of the land including any survey pegs;
(j) will comply with the Mineral Resources Act 1989 and other mining legislation;
(k) will comply with such other conditions imposed by the mining registrar, including such conditions as determined by the Land Court pursuant to Part 4 of the Mineral Resources Act 1989.
In addition s. 81(1)(n) also provides that the grant of a mining claim is subject to such other conditions as may be prescribed. Section 9 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 land to which the claim applies;
(b) that the holder will take reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the land to which the claim applies;
(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 claim 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.
Section 10 of the Mineral Resources Regulation 2003 prohibits the holder of a mining claim from using prohibited machinery on the subject land. The term “prohibited machinery” is defined in s. 10(3) to mean:
(a) a backhoe, bobcat, bucket excavator, bulldozer, clamshell, continuous miner, dragline, end-loader, excavator, grader, loader, ripper, rooter, scarifier, scoop, scoopmobile, scraper, tractor or traxcavator;
(b) a cart, crane, locomotive, monorail, motor vehicle with or without a trailer, or a ropeway;
(c) a dredge;
(d) a vehicle mounted drill.
The restrictions on the use of prohibited machinery do not, however, apply to using machinery to transport mineral bearing ore or wash, or transporting equipment, materials or water, used for mining operations or building storage facilities for water used for mining operations or rehabilitating the surface are of the subject land – s. 10(2).
The regulation of the environmental management of mining is effected pursuant to the Environmental Protection Act 1994 (Qld). The holder of a mining claim is required, pursuant to Chapter 5 of the Environmental Protection Act 1994, 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 Claims and Prospecting Permits. 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, nature conservation, waste management, service/maintenance and storage areas, monitoring/reporting and emergency response procedures and rehabilitation.
Condition 14 prohibits the holder of a mining claim environmental authority from carrying “out activities within 100m of a Historical, Archaeological or Ethnographic Site.” Note 21 under this condition, advises the holder of a mining claim:
“With regard to cultural heritage issues refer to the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 and the Queensland Heritage Act 1992. Prior to carrying out any activities on the mining claim, the holder of the environmental authority should consult with the administering authority if a site has the potential to be designated as a historical, archaeological or ethnographic site.”
It should also be noted that the Aboriginal Cultural Heritage Act 2003 (Qld) imposes a duty of care on the holder of a mining claim in relation to Aboriginal cultural heritage. Section 8 of the Aboriginal Cultural Heritage Act 2003 defines “Aboriginal cultural heritage” as anything that is:
(a) a significant Aboriginal area in Queensland; or
(b) a significant Aboriginal object; or
(c) evidence, of archaeological or historic significance, of Aboriginal occupation of an area of Queensland.
The term “significant Aboriginal area” is defined by s. 9 to mean an area of particular significance to Aboriginal people because of either or both, aboriginal tradition and the history, including the contemporary history, of an Aboriginal party for the area. The term ‘significant Aboriginal object’ is defined by s. 10 in the same manner.
Subsection 23(1) requires a person who carries out an activity to take all reasonable and practical measures to ensure that the activity does not harm Aboriginal cultural heritage. This is referred to as the cultural heritage duty of care.
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. One of the matters listed is the extent to which the person consulted with Aboriginal parties about the carrying out of the activity, and results of the consultation – s. 23(2)(c). In addition, s. 28 provides that the Minister may, by gazette notice, notify cultural heritage duty of care guidelines which identify reasonable and practical measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. 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 claim 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 29 June 2011 Mr. Hunt lodged with the Tribunal a future act determination application (Form 5) pursuant to ss. 35 and 75 of the Act. The application was made more than six months after the notification day (27 October 2010) – s. 35(1)(a).
On 30 June 2011 I was appointed as the Member to conduct the future act determination inquiry and on 13 July 2011 I accepted the future act determination application pursuant to s. 77.
In response to the requirement in paragraph 10 of Form 5 that a statement is provided that the parties had not been able to reach agreement about the act within 6 months of the s. 29 notice, Mr Hunt stated:
“No less than 6 calls to NQLC, NQLC requested Wiri to contact me. Meeting with Graeme Sauney, no objection to MC 72064. Meeting with Lawyer Perry Russell, no objection to MC72064 from Wiri & says Wiri will send letter to Tribunal. I’ve made no less than 18 calls since Jan 2011. Wirri (sic) are too busy with other mining companys (sic), & agree to agree at Tribunal hearing.”
I convened a Directions Hearing on 19 July 2011 at which Ms Julieanne Butteriss, on behalf of the government party, and Mr. Hunt, who is not legally represented, participated by telephone. The native title party was represented by Mr Perry Russell of Creevy and Russell Lawyers who also participated by telephone.
Mr Hunt informed the Tribunal that he had used his best endeavours to contact the persons collectively comprising the applicant. Mr Hunt resides in Nebo in northern Queensland and has been engaged in mining for some time, although his main occupation is as a fisherman, and he often spends up to two weeks or more at sea.
Mr Russell, on behalf of the native title party, did not oppose the making of a determination, pursuant to s. 38, that the proposed future act be done without the imposition of conditions. During the course of the Directions Hearing, Mr Russell submitted that the sort of small scale mining proposed by Mr Hunt “fell through the crack” of the right to negotiate provisions. His client, the Wiri People, were not opposed to a small miner such as Mr Hunt being able to exercise his rights under the mining claim, and the only matter raised was whether an advertisement could be placed in the local Mackay newspaper to the effect that the Wiri People had cooperated in the grant of the proposed tenement. Mr Hunt indicated his preparedness to cooperate with Mr Russell in this regard.
The very helpful and professional manner in which Mr Russell, on behalf of the Wiri People, cooperated with the parties and the Tribunal assisted in the expeditious making of this determination.
The mining which is the subject of this tenement is very small scale and it is clear that the grantee party has acted in good faith and to the best of his ability. It was clear from the discussions at the hearing that there was no objection by the native title party to the grant of the mining claim and they were not seeking any financial recompense for the grant of the claim. This is another example of how many native title claim groups in Queensland have taken a practical and cooperative stance in dealing with small miners and have not sought to fully exercise their right to negotiate.
In this matter neither the native title party nor the grantee party have provided the Tribunal with written contentions. The Directions I made on 19 July 2011 did not require either of these parties to make contentions, but provided that they were at liberty to do so. The appropriate means of conducting an inquiry when the Tribunal is not in receipt of written contentions from the native title party 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 s. 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.
The major difference between this matter and the determinations referred to above, is that here the native title party is not divided. Rather, the native title party does not oppose the grant of the proposed tenement and, like the grantee party, has reached the conclusion that the simplest and most cost-effective means of achieving this goal is the making of an uncontested determination pursuant to s. 38.
Legal Principles and Government Party Contentions
Section 38 provides that the Tribunal must make a determination that 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 s. 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 s. 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 2 August 2011, the government party said :
“6.1 The State is not aware of any information indicating that the grant of MC 72064 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 MC 72064 would be likely to affect the way of life of the Wiri People and the development of their social, cultural or economic structures.
6.2In any event, the State contends that the grant of MC 72064 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 MC 72064 and the activities undertaken pursuant to it;
(b) the operation of the ACHA;
(c)there are no known Aboriginal communities situated on the area subject to MC 72064 or in close proximity to it;
(d)the very limited area of MC 72064 compared to the area contained within the external boundary of the Wiri Claim;
(e) the area subject to MC 72064 has been subject to prior exploration activities which may have already affected the Native Title Party’s enjoyment of their registered native title rights and interests;
(f) the activities of third parties conducted within the vicinity of MC 72064 which may have interfered 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 MC 72064
6.4A 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 MC 72064, and 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 claim. The Native Title Party bears the onus of establishing these matters.
6.5In any event, the State contends that the grant of MC 72064 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 claim.
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 State is not aware that the Native Title Party has any objections to the grant of the MC 72064.
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 claim 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 area of the proposed tenement has been the subject of the grant of numerous exploration permits over the past fifty years.
No evidence has been provided how, or if at all, the native title party’s registered native title rights and interests are exercised and enjoyed over the subject land and waters. Indeed, the only information supplied by the legal representative of the native title party was that the Wiri People did not oppose the grant of the mining claim to Mr Hunt. 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 Wiri 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 likelihood that previous exploration 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 s. 24MD(3)(a) to the granting of the mining claim;
(d) the small scale nature of the proposed 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 the legal representative of the Applicant who attended the Directions Hearing on 19 July 2011 that the Wiri People did not oppose the grant of the mining claim to Mr. Hunt.
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 (.8971 hectares) and the small scale nature of the proposed 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 s. 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 advised (para 6.4 of the Statement of Contentions) that a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register had not identified any Aboriginal cultural heritage within the area of the proposed tenement. Nonetheless this is not determinative, as neither the Database nor the Register purport 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 finding 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, in these circumstances, be likely to 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 is the statement by Mr Perry Russell on behalf of the native title party who appeared at the Directions Hearing on 19 July 2011 who indicated support for the government party granting the tenement to Mr. Hunt.
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 claim. It appears that the grantee party is a small miner. The proposed scale and nature of his mining operations could be categorised as small and localised. It is doubtful if the grant of the mining claim 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, especially in remote areas of Queensland. The fact that the grant of this 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 assist in facilitating a small 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 in remote parts of Queensland that are largely dependent on mining activities.
I therefore find that if the mining claim is granted, 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 a small 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 claim. 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 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). In this matter there is no other material before Tribunal which assists in making a determination.
Conclusion
As noted, there is relatively little material before the Tribunal. There are no written submissions from the native title party, but the Tribunal has been advised that the Wiri People support the grant of the proposed tenement to the grantee party.
There is uncontested evidence before the Tribunal that Mr Hunt 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 because of the small scale nature of the proposed mining activities, and the very limited resources of the grantee party, it was not practically feasible for the parties to engage in the normal right to negotiate discussions. Indeed, the very limited resources of the grantee party, taken together with the small scale nature of the mining operations, has resulted in both the grantee party and the native title party supporting the making of a s. 38 determination. This was the case, and this was perceived as the most expeditious and cost effective means for ensuring the grant of the proposed tenement. Just as the Tribunal has developed the practice of making consent determinations to facilitate the grant of tenements where there are logistic problems within the Applicant of a claim group preventing the full execution of agreements, likewise there has developed a practice in Queensland of making short form s. 38 determinations to facilitate the grant of tenements to unrepresented small miners who lack the resources to engage in full right to negotiate discussions. Such determinations are only made where it is clear that the native title party has fully considered the implications of the grant of the tenement and support this course of action.
To sum up, the proposed future act comprises a small geographical area and would involve small scale mining in a remote region of Queensland. No significant benefits of an economic or social kind to the Queensland economy will flow from the grant of the mining claim, but the grant of the mining claim will enable Mr Hunt to commence operations and will be of some small assistance for the broader small mining industry in Queensland as well as the local economy.
Therefore, there is 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 Claim 72064 to Peter George Hunt, may be done.
John Sosso
Deputy President
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