State of Queensland and Another v Eileen Beryl Peglar & Others on behalf of the Widi People of the Nebo Estate #1
[2016] NNTTA 56
•2 December 2016
NATIONAL NATIVE TITLE TRIBUNAL
State of Queensland and Another v Eileen Beryl Peglar & Others on behalf of the Widi People of the Nebo Estate #1 [2016] NNTTA 56 (2 December 2016)
Application No: QF2016/0001
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination application
State of Queensland
(Government party)
- and -
Eileen Beryl Peglar & Others on behalf of the Widi People of the Nebo Estate #1 (QC2006/014)
(native title party)
- and -
Raymond Keith Richardson
(grantee party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal:Ms H Shurven, Member
Place: Perth
Date: 2 December 2016
Catchwords: | Native title – future act – proposed grant of mining claim – the act may be done subject to conditions |
| Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) Environmental Protection Act 1994 (Qld) Mineral Resources Act 1989 (Qld) Mineral Resources Regulation 2013 (Qld) Native Title Act 1993 (Cth) Nature Conservation Act 1992 (Qld) |
Cases: | Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’) McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (‘McDonald v Director-General of Social Security’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208(‘Ward v Western Australia’) |
| Representatives of the Government party: | Ms Leilehua Helu and Ms Amy Carseldine, Crown Law Ms Julieanne Butteriss and Ms Julie Hookey, Department of Natural Resources and Mines and Petroleum |
| Representative of the native title party: | Mr Graham Sauney |
| Representative of the grantee party: | Mr Raymond Keith Richardson |
REASONS FOR DETERMINATION
Background
This decision concerns an application made to the National Native Title Tribunal by the State of Queensland under s 35 of the Native Title Act 1993 (Cth). All subsequent references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated. The State seeks a determination that mining claim 72386 (the mining claim) be granted to Raymond Keith Richardson. For the reasons below, I determine that the act (the grant of the mining claim) may be done, subject to the conditions outlined at [30].
The mining claim comprises one hectare (0.01 square kilometres), located within the Isaac Regional Council, 30 kilometres south of Eungella, in the Homevale Regional Park, at the end of Mount Britton Road and along an access track. The mining claim is overlapped by the registered native title claim of the Widi People of the Nebo Estate #1 (the Widi People).
Before the State lodged the application for a determination in April 2016, it requested the Tribunal mediate between parties (per s 31(3)). Member McNamara was appointed as mediator by President Raelene Webb QC and convened a number of mediation conferences between January and March 2016. Member McNamara terminated the mediation process due to the non-participation of the Widi People’s future act representative at that time (affidavit of Ms Julie Hookey at 7(i), submitted by the State in this inquiry). The State lodged the application following the parties failure to reach agreement about the grant of the mining claim, per s 31(1)(b).
I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application. I accepted the application and notified parties that I wished to convene a preliminary conference in order to set directions for the inquiry.
Preliminary matters
Representation of the Widi People
The Register of Native Title Claims notes the Widi People’s address for service is the North Queensland Land Council (NQLC). However, the Tribunal was advised that Mr Perry Russell, of Creevy Russell Lawyers, represented the Widi People in future act matters. Prior to the preliminary conference convened on 30 May 2016, Mr Russell advised the Tribunal in a telephone conversation that the Widi People do not usually object to the grant of mining claims due to the small size of those claims, and that he would seek instructions.
On 17 May 2016, Mr Russell emailed the Tribunal and other parties stating ‘one of the Widi People Applicants Graham Sauney will be attending [the preliminary conference] by telephone on behalf of the Widi People’. Mr Sauney is one of the persons listed as the Applicant for the Widi People’s claim. At the preliminary conference, the Tribunal attempted but was unable to contact Mr Sauney on the telephone number provided. Mr Russell sent an email to the Tribunal and other parties further confirming that while he was the future act lawyer for the Widi People, he had not been instructed to act in this inquiry. On the basis of this correspondence, the Tribunal understood Mr Sauney was effectively self-representing the Widi People
Pursuant to its obligation under s 109(1) to carry out its functions in a ‘fair, just, economical, informal and prompt way’, the Tribunal allowed reasonable opportunity and time for the Widi People to provide submissions or information in this matter. The steps the Tribunal took in this regard are outlined further at [10]–[17] below.
Material before the Tribunal
At the preliminary conference, the Tribunal issued directions requiring parties to provide contentions and evidence in relation to whether any negotiation party had failed to negotiate in good faith and the s 39 criteria for a determination. The Tribunal notified parties of the directions by email on 31 May 2016.
No party made submissions as to a failure of negotiation in good faith. On 25 July 2016, the State provided their contentions in relation to the s 39 criteria to the Tribunal, Mr Russell and Mr Richardson.
The Widi People did not provide any contentions by 15 August 2016, as required by the directions. In an attempt to ensure the Widi People had adequate opportunity to provide submissions, the Tribunal emailed Mr Russell (and other parties) on 23 August 2016, requesting that the Widi People provide submissions or confirm that no submissions would be made by 26 August 2016. The Tribunal noted that if no response was received, it would contact the NQLC as the Widi People’s listed address for service on the Register of Native Title Claims. Mr Russell did not respond, and the Tribunal accordingly advised the NQLC of the history of the matter and invited it to reply by 19 September 2016.
On 19 September, the NQLC advised they were not instructed to act for the Widi People in this matter, and that they had written to each of the persons listed as the Applicant, recommending they contact the Tribunal or their legal representative for future act matters, Creevey Russell Lawyers, ‘as a matter of urgency’.
On the same day, upon receipt of the letter, Mr Sauney telephoned the Tribunal and sent a follow-up email, stating:
I confirm that the Widi People as the native title party will not be lodging a submission today and do not object to the grant of the mining claim 72386 to Mr Richardson.
As the native title holders we do however reserve our right for negotiate with Mr Richardson should he use the land for a commercial enterprise [emphasis added].
The Tribunal forwarded Mr Sauney’s email to Mr Richardson, the State, Mr Russell and the NQLC (copied to Mr Sauney) and requested comment by 23 September 2016. On the same day the State replied to the Tribunal (copied to all):
upon grant of a mining claim, the holder is entitled to undertake all associated activities permissible under the relevant provisions of the Mineral Resources Act 1989 (Qld) for mining claims and this does not exclude a commercial operation [emphasis added].
Given Mr Sauney’s apparent misunderstanding about the commercial operations permitted under the mining claim, he was invited to provide further comment. On 3 October 2016, Mr Sauney advised the Tribunal via telephone that he was obliged to meet with the other persons who formed the Widi People Applicant to discuss the matter. The Tribunal advised all parties of the Widi People’s meeting, scheduled for 11 October 2016, and requested parties attend a listing hearing on 14 October 2016 to allow Mr Sauney to ventilate any concerns which had been outlined at the Widi People’s meeting.
At the listing hearing, Mr Sauney indicated the Widi People had no objection to the mining claim being granted, as long as some mechanism for communicating with Mr Richardson was put in place, and the Widi People were kept up to date with what was happening on the mining claim. The State and Mr Sauney confirmed they were content to proceed on the basis of any submissions the Tribunal had received to date, and on the oral submissions made at the listing hearing by Mr Sauney, on behalf of the Widi People. I indicated I would give thought to what mechanism could be used to facilitate communication between Mr Richardson and the Widi People.
Mr Richardson was unable to attend the listing hearing, however, a summary of the discussion was provided to him and the other parties, on the same day, together with a number of draft conditions I indicated I would consider imposing on the grant of the mining claim. These would be in addition to those conditions the State would impose, as set out in s 81 of the Mineral Resources Act 1989 (Qld) and reg 8 of the Minerals Resources Regulation 2013 (Qld) (see Appendix 1). The State also outlines that holders of a mining claim are bound by the environmental duties under the Environmental Protection Act 1994 (Qld) (see s 319), as well as the duty of care imposed on the grantee party under the Aboriginal Cultural Heritage Act 2003 (Qld). I gave parties until close of business 21 October 2016 to lodge any submissions, if they wished, on whether or not those conditions should be imposed. Mr Richardson requested clarification regarding condition 5 and I made some minor amendments accordingly (with the final conditions listed at [30] of this decision). No response was received from the State or Mr Sauney.
Some further communications were then received from NQLC indicating the Widi People may be retaining another lawyer in future act matters. The Tribunal communicated with the NQLC and with the other lawyer, as well as the parties to this inquiry including Mr Sauney. No further information was provided, and I am unable to hold publication of an arbitral decision indefinitely. All parties have had ample opportunity to outline their issues and concerns in this matter, and the proposed conditions address those concerns as outlined.
Legal principles
The Widi People did not challenge the power of the Tribunal to determine this matter in relation to any lack of good faith in negotiations with the State or Mr Richardson. As such, I have the power, pursuant to s 38, to conduct this inquiry and make one of the following determinations: that the act must not be done, that the act may be done, or that the act may be done subject to conditions.
In making a determination, I must have regard to the criteria in s 39. The s 39 criteria relate largely to information which is exclusively within the knowledge of the native title party concerned (see Ward v Western Australia [26]). In this inquiry, the State provided substantial submissions and evidence regarding their view of the s 39 criteria. Mr Sauney and Mr Richardson provided limited information in verbal and email form. I am obliged to consider and take into account the criteria in s 39, and the information and evidence provided by parties, for the purposes of making one of the required determinations. These criteria, and my findings, are outlined at [20]–[28] below.
Findings on the Section 39 criteria
Sections 39(1)(a)(i)–(iv) – effect of the act on the enjoyment of registered native title rights and interests; effect on way of life, culture and traditions; development of social, cultural and economic structures; and freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance
The State contends the grant of the mining claim is not likely to affect: the registered native title rights and interests (s 39(1)(a)(i)); way of life, culture and traditions (s 39(1)(a)(ii)); or development of social, cultural and economic structures of the Widi People (s 39(1)(a)(iii)), because of the conditions and restrictions as outlined in paragraph [16] of this determination. The State also notes the Widi People provided no evidence to suggest their freedom to access the land and carry on rites, ceremonies or other culturally significance activities would be affected by the grant of the mining claim (s 39(1)(a)(iv)).
The State also asserts the nature of the tenure of the area (the underlying interests) suggests that native title rights and interests, particularly in regard to non-exclusive rights and interests, may continue to exist. It further asserts there will be no effect on these elements of s 39 because: there are no known Aboriginal communities on or in close proximity to the area; the mining claim is a small area of land; the mining will be small scale, using handheld implements; the area has been subject to extensive prior exploration and mining; and the non-extinguishment principle in s 24MD(3)(a) applies to the grant of the mining claim. The State indicated they were not aware of any Aboriginal community on or within the vicinity of the mining claim.
The Widi People have not provided information on these s 39 elements. On the evidence before me, I therefore conclude the act will not impact the Widi People’s: enjoyment of registered native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures; freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance.
Section 39(1)(a)(v) – effect on areas or sites of particular significance
The State undertook a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register and did not identify any Aboriginal cultural heritage sites within the mining claim. The State acknowledges it is not possible to conclusively guarantee there are no cultural heritage sites within the area, however, the Widi People have not provided any information as to the existence of such sites or areas. The Widi People have also not objected to the mining claim being granted on the basis of the conditions I have proposed to apply to the grant. I note that Mr Richardson has a duty of care under the Aboriginal Cultural Heritage Act 2003 (Qld) to avoid or minimise harm to Aboriginal cultural heritage on the area of the mining claim. For these reasons, I find the grant of the mining claim is unlikely to affect areas or sites of particular significance to the Widi People.
Section 39(1)(b) – effect on interests, proposals, opinions or wishes of the Widi People in relation to the management, use or control of land or waters
At the listing hearing in this inquiry, Mr Sauney indicated the Widi People have a good relationship with Mr Richardson, who intends to do low impact, handheld tool mining on the mining claim. Mr Sauney indicated that a meeting with the Widi People confirmed they had no objection to the mining claim being granted, as long as some mechanism for communicating with Mr Richardson was put in place, and the Widi People had updates about what was happening on the mining claim. As such, the conditions I have outlined at paragraph [30] below should ensure that any effect on the interests, proposals, opinions or wishes of the Widi People in relation to the management use or control of the land or waters of the mining claim is minimal.
Section 39(1)(c) and (e) – economic and other significance; and public interest
Very little information has been provided by Mr Richardson or the State about the economic significance or public interest of the mining activity which is intended to be done in this area. From the limited information provided, I conclude there will be very limited significance in terms of economic impact or public interest impact in Mr Richardson’s handheld mining activities.
Section 39(1)(f) and 39(2) – any other matter the arbitral body considers relevant; and existing non-native title rights and interests and use of the land
The State outlines that the mining claim is within a protected area under the Nature Conservation Act 1992 (Qld) and is surrounded by historical and current mining activities. They contend the area has been extensively mined in the past since the 1880s, and there are approximately 113 historical and mining tenements on or near the mining claim. At the listing hearing, Mr Sauney indicated he was aware of various mining activities that had been previously undertaken in the area. No contentions or evidence were provided to support a proposition that activities carried out pursuant to any mining claim or permits, granted before the Native Title Act, have affected the enjoyment of the Widi People’s native title rights and interests.
Based on the material before me, I am of the view there are no further relevant matters to be addressed (pursuant to s 39(1)(f)).
Section 39(4) – Issues relevant to the inquiry on which the negotiation parties agree
The proposed conditions as outlined at paragraph [30] were circulated to the parties and no one has objected to their form or content. The conditions will assist to minimise any impact of the grant of the mining claim on the native title rights and interests held by the Widi People over the area of this mining claim.
Conclusion
Having considered the limited evidence and information before me, including the existing non native title rights and interests and use of the land, I conclude the future act may be done, subject to the conditions I intend to impose on the grant of the mining claim.
Determination
The determination of the Tribunal is that the act, namely the grant of mining claim 72386 to Raymond Keith Richardson, may be done, subject to the following conditions (in addition to the conditions the State will impose):
1. If the grantee party submits a work program as required by s 81(c) of the Mineral Resources Act 1989 (Qld), the grantee party must provide the native title party with a copy, excluding sensitive commercial data, within 21 days.
2. If the grantee party makes an application for an environmental authority under s 121 of the Environmental Protection Act 1994 (Qld), the grantee party must provide the native title party with a copy within 21 days.
3. If the grantee party notifies the administering authority of a Notifiable Activity listed in Schedule 4 of the Environmental Protection Act 1994 (Qld), the grantee party must provide the native title party with a copy of the notice within 21 days.
4. When, prior to the cancellation or expiry of the mining claim, the grantee party submits a Final Rehabilitation Report and a compliance statement to the administering authority, the grantee party must provide the native title party with copies within 21 days.
5. Prior to commencement of operations on the mining claim, the grantee party must establish and continue a Liaison Committee (the committee) comprising up to 2 persons nominated by the grantee party; and up to 2 persons nominated by the native title party.
a)The grantee party must give written notice to the native title party of its intention to form the committee.
b)Each party may replace one or both of its members on the committee by giving at least 7 days written notice to the other party. Where a committee member is temporarily unavailable to attend meetings of the committee, the member may substitute another person to represent the interests of the party.
c)If at any time the native title party notifies the grantee party in writing that they do not wish the committee to continue, the grantee party is not obliged to continue the committee.
d)The committee may meet at least once each year.
e)The location of the committee meetings will be on the mining claim unless agreed otherwise by the members.
f)Members of the committee will bear their own costs in attending committee meetings
6. Correspondence to the native title party must be sent to:
a)the address for service listed on the Register of Native Title Claims or the National Native Title Register; and
b)any other representative named by the native title party from time to time.
7. These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the mining claim).
Helen Shurven
Member
2 December 2016
Appendix 1
Mineral Resources Act 1989 (Qld)
s 81 Conditions of mining claim
Each mining claim shall be subject to each of the following—
(a)a condition that the holder shall use the area of the mining claim bona fide for the purpose for which the mining claim was granted and in accordance with this Act and the conditions of the mining claim and for no other purpose;
(b)a condition that the holder must—
(i)comply with the mandatory provisions of the small scale mining code to the extent the code applies to the holder; and
(ii)ensure any other person carrying out an authorised activity for the mining claim complies with the mandatory provisions of the small scale mining code to the extent the code applies to the holder;
(c)if the mining claim is granted or renewed for a term of more than 5 years—a condition that the holder must, within 1 month after the fifth anniversary of the following days, give the chief executive a work program for activities to be carried out under the mining claim for the remaining term of the claim—
(i)for a grant of a mining claim—the day the claim is granted;
(ii)for a renewed mining claim—the day the term of the renewed claim started;
(d)a condition that the holder shall furnish at such times and in such manner as required by the Minister reports, returns, documents and statements and other materials whatever;
(e)a condition that the holder shall maintain the surface of the area of the mining claim in a tidy state during the term of the mining claim;
(f)a condition that the holder must carry out improvement restoration for the mining claim;
(g)a condition that prospecting and mining shall be conducted in the area of the mining claim by such method or in such manner as is provided for in or applies in respect of the mining claim;
(h)a condition that the holder—
(i)shall not erect any permanent building or other structure whatever; and
(ii)prior to the termination of the mining claim, for whatever cause, shall remove any building or structure erected by the holder and all mining equipment and plant;
on or in the area of the mining claim;
(i)a condition that without the prior approval of the Minister the holder shall not obstruct or interfere with any right of access had by any person in respect of the area of the mining claim;
(j)where the mining claim is in respect of land that is a reserve, a condition that the holder shall comply with the terms and conditions upon which the consent of the owner or of the Governor in Council to the grant of the mining claim was given;
(k)a condition that the holder shall make all payments of compensation and comply with all terms of any agreement or determination relating to compensation at the time or times as agreed or determined pursuant to section 85 or 86;
(l)a condition that the holder—
(i)shall pay the rental as prescribed; and
(ii)shall pay the royalty as prescribed; and
(iii)shall pay all local authority rates and charges lawfully chargeable against the holder in respect of the area of the mining claim; and
(iv)shall deposit as required by the Minister any security from time to time under this Act;
(m)a condition that the holder shall maintain the marking out of the area of the mining claim including any survey pegs during the term of the claim but that boundary posts or cairns need not be maintained after the area has been surveyed;
(n)a condition that the holder shall comply with this Act and other mining legislation;
(o)such other conditions as are prescribed;
(p)such other conditions as the Minister may impose (including such conditions as the Land Court may determine pursuant to this chapter).
(1AA) Without limiting subsection (1), the Minister may impose a condition on a mining claim if the Minister considers the condition is in the public interest.
If in any case there is conflict between a condition determined by the Land Court and a condition determined by the Governor in Council, then to the extent of the conflict the determination of the Governor in Council shall prevail.
Despite subsections (1) to (2), a condition must not be determined, imposed or prescribed if it is the same, or substantially the same, or inconsistent with, a relevant environmental condition for the mining claim.
A mining claim shall contain a condition as to the work commitment required of the holder.
Notwithstanding subsection (1), if the applicant for a mining claim satisfies—
(a)the Minister; or
(b)the Land Court when giving an instruction under this chapter; or
(c)the Governor in Council when giving consent to the grant of a mining claim under this chapter;
that any of the conditions prescribed in subsection (1)(f), (h)(ii) and (m) should not be imposed the mining claim may be granted without the imposition of that condition or those conditions.
Mineral Resources Regulation 2013 (Qld)
reg 8 Conditions—Act, s 81
For section 81(1)(o) of the Act, the prescribed conditions to which a mining claim is subject are stated in—
(a)subsection (2) and schedule 1, items 1 to 3; and
(b)if the claim applies to occupied land—schedule 1, item 4.
* Note—
* See also part 5.
A holder of a mining claim must not use prohibited machinery in the area of the claim.
However, subsection (2) does not apply to—
(a)using machinery to—
(i)transport mineral bearing ore or wash; or
(ii)transport equipment, materials, or water, used for mining operations; or
(iii)build storage facilities for water used for mining operations; or
(iv)rehabilitate the surface area of the land; or
(b)using an eductor dredge in the Mareeba mining district, if the eductor dredge—
(i)has an inlet nozzle diameter of no more than 200mm; and
(ii)is being used while water is flowing in, or in streams leading into, the Palmer River or Mitchell River; or
(c)using a vehicle-mounted drill in restricted area 1, 25 or 77 if the drill has a diameter no more than—
(i)if the drill is used for exploration drilling—25cm; or
(ii)if the drill is used for drilling access shafts—1m.
Also, subsection (2) does not apply to using prohibited machinery in the area of a prescribed mining claim, other than in any part of the area of a prescribed mining claim that is within the boundaries shown on any of the following plans—
(a)MP34341;
(b)MP34342;
(c)MP34343;
(d)MP36464;
(e)MP40825;
(f)MP30692;
(g)MP31027;
(h)MP31028;
(i)MP30955;
(j)MP30971.
In this section—
prescribed mining claim means a mining claim that—
(a)applies to corundum, gemstones or other precious stones, and the area of which has been decided by the Minister under section 53 of the Act; or
(b)has been converted from a mining lease under section 816 of the Act.
prohibited machinery means any of the following—
(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.
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4
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