Stephen Christopher Purse v Guwa-Koa Aboriginal Corporation RNTBC
[2022] NNTTA 7
•4 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Stephen Christopher Purse v Guwa-Koa Aboriginal Corporation RNTBC and Another [2022] NNTTA 7 (4 February 2022)
Application No: | QF2021/0005 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Guwa-Koa Aboriginal Corporation RNTBC (QCD2021/004)
(native title party)
- and -
Stephen Christopher Purse
(grantee party)
- and -
State of Queensland
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Nerida Cooley |
Place: | Brisbane |
Date: | 4 February 2022 |
Catchwords: | Native title – future act – s 35 application for determination – mining claim application – s 39 criteria considered – effect on native title rights and interests – effect of act on way of life, culture and traditions – effect of act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – proposed conditions – determination that the act may be done subject to conditions |
Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 24, 25, 26, 32, 35 Environmental Protection Act 1994 (Qld) s 121 Land Court Act 2000 (Qld) s 32H Mineral Resources Act 1989 (Qld) ss 25AAA, 50, 81, 141AAA, 191AAAA, 363, 391C, 403 Native Title Act 1993(Cth) ss 29, 30, 31, 35, 37, 38, 39, 141, 151, 238 |
Cases: | Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation RNTBC [2021] NNTTA 7 (‘Atlas Iron’) Bligh Coal Limited, Idemitsu Australia Resources Pty Ltd and Bowen Investment (Australia) Pty Ltd v Jonathon Malone & Ors on behalf of the Western Kangoulu People & Another Button on behalf of the Koa People v State of Queensland Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland [2012] NNTTA 31 (‘Drake Coal’) Edwin James Wherritt and Another v Boonthamurra Native Title Aboriginal Corporation RNTBC [2018] NNTTA 19 (‘Boonthamurra’) Eureka Petroleum Pty Ltd and Bularnu Waluwarra Wangkayujuru Aboriginal Corporation RNTBC and Another [2022] NNTTA 3 (‘Eureka Petroleum’) India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC [2021] NNTTA 5 (‘India Bore Diamond Holdings’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Nyikina Mangala v Backreef Oil’) Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources Ltd [2002] NNTTA 114 (‘Western Australia v Jidi Jidi’) Western Australia v Thomas and Others [1996] NNTTA 30; |
| Representatives of the native title party: | Sheree Sharma and Rebecca Wagner, Queensland South Native Title Services Ltd |
| Representative of the grantee party: | Kevin Phillips, Queensland Opal Miners Association Inc |
| Representatives of the Government party: | Avril Prior, Crown Law; Chris Rawlings, Department of Resources |
REASONS FOR DETERMINATION
Introduction
In 2018, Mr Stephen Purse made an application under the Mineral Resources Act 1989 (Qld) (MRA) for the grant of mining claim MC 300221 (mining claim) located near Kynuna in western Queensland.
The State of Queensland (State) gave notice of the grant of the mining claim in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), specifying 6 March 2019 as the notification day.
As at the notification day, the mining claim was located within the area of the Koa People’s native title determination application (Koa claim). The negotiation parties, being the State, Mr Purse and the registered native title claimant for the Koa claim (Koa claimant), were then required to negotiate in good faith with a view to obtaining the Koa claimant’s agreement to the grant of the mining claim (s 31(1)(b) NTA).
No such agreement has been reached and Mr Purse now seeks a determination from the Tribunal that the mining claim may be granted. Having reviewed the material and considered the matters in s 39 of the NTA, I have determined that the mining claim may be granted subject to conditions. My reasons follow.
The Tribunal proceedings
On 23 July 2021 (being, as required, at least six months after the notification day), Mr Purse lodged a future act determination application under s 35 of the NTA, for a determination under s 38 of the NTA.
The application was accepted by the Tribunal on 5 August 2021 and the President of the Tribunal directed me to constitute the Tribunal for the purpose of holding an inquiry into the application.
I must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made (s 37 NTA). In his application Mr Purse outlines the course of negotiations between the parties since June 2019 and states that no agreement has been reached.
I made directions for the conduct of the inquiry requiring each party to lodge contentions and evidence, including in relation to the question of good faith.
In accordance with the directions, the State initially provided a bundle of material relating to the proposed mining claim and its area, including mapping, land tenure and tenement information.
The Koa claimant provided contentions but no evidence. It did not make any assertion that either the State or Mr Purse had failed to negotiate in good faith but it opposed Mr Purse’s application and argued for a determination that the mining claim must not be granted, or alternatively that it may be granted subject to conditions to be complied with by Mr Purse.
Mr Purse provided contentions, a map, a copy of the cultural heritage duty of care guidelines (Duty of Care Guidelines) under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) and a search of the Aboriginal Cultural Heritage Database and Aboriginal Cultural Heritage Register established under the ACHA.
The State then provided contentions and an additional bundle of material. In its contentions, the State pointed out that, on 6 October 2021, after the Koa claimant and Mr Purse had submitted their material, the Federal Court made a consent determination of native title in the Koa claim (see Koa Determination).
The Koa Determination is now entered on the Native Title Register under the NTA and in accordance with the determination, Guwa-Koa Aboriginal Corporation RNTBC (GKAC) holds native title in relation to the whole of the area of the mining claim in trust on behalf of the Koa People.
Accordingly, GKAC is now the native title party with respect to the proposed grant of the mining claim and a party to this proceeding (see ss 30(1)(c) and 141(2) NTA). In light of the determination, the Koa claimant ceased to be a registered native title claimant under the NTA and is no longer a native title party to this application (s 30(2) NTA).
GKAC has since confirmed that it adopts the submissions made by the Koa claimant in this matter.
Each of the parties also had an opportunity to provide additional contentions, but none did. Having reviewed the material, I am satisfied I can make a determination without the need for a hearing as permitted by s 151(2) of the NTA. Mr Purse and the State also supported that course. GKAC did not express a view.
Issues for determination
Under s 38 of the NTA, I am required to make one of the following determinations:
(a)that the grant of the mining claim must not be done;
(b)that the grant of the mining claim may be done; or
(c)that the grant of the mining claim may be done, subject to conditions to be complied with by any of the parties.
The matters that I must take into account in making a determination are those set out in s 39(1) of the NTA. The NTA does not specify the weight to be afforded to each matter listed in s 39 – that will depend on the evidence (see Western Australia v Thomas at 166).
Under s 39(4), I must take into account any relevant issues upon which the parties agree. Further, if all parties consent, I need not take into account the matters mentioned in s 39(1) to the extent they relate to agreed issues. In this case there are no matters in that category and I have considered each of the matters in s 39 as set out below.
Details about the mining claim and its area
Mr Purse’s application for the mining claim is made under chapter 3 of the MRA. The State has outlined relevant statutory provisions in its contentions (paragraph 5), including the statutory conditions of a mining claim in s 81 of the MRA. These include a requirement to comply with the mandatory conditions of the Small Scale Mining Code made under s 391C of the MRA.
In its contentions at paragraphs 7–8 GKAC highlights the range of activities which Mr Purse may undertake under s 50 of the MRA. It says these activities present a risk of harm to cultural heritage, as it has not been able to survey the land to confirm the existence of any cultural heritage. In particular, GKAC expresses concern with respect to the possible use of explosives.
Mr Purse proposes to mine opal and has applied for a 10 year term, with the possibility of renewal. The mining claim is 11.72 hectares in size. Both the mining claim and Mr Purse’s proposed access route cover land subject to rolling term leases for pastoral purposes.
Mr Purse’s proposed work program for the mining claim indicates the following:
(a)proposed open cut mining using an excavator with an area of disturbance of up to 0.1 hectare, working 15% of the mining claim area over the next five years;
(b)Mr Purse proposes to work the mining claim himself for 10 hours per week and does not propose to employ any others; and
(c)no buildings or structures are proposed.
In his contentions (at page 4), Mr Purse elaborates on his plans, advising that:
(a)he has arranged off-site accommodation, and any on site camping would be kept to a minimum and comprise only mobile facilities such as caravans and trailers;
(b)initially mining will be undertaken using hand held power tools within previously disturbed areas, and will be undertaken part-time during the colder months (May to November);
(c)if good opal traces are located from the hand mining activities in the areas which he says are already “significantly disturbed” by historic opal activities, then he would propose excavation using earthmoving equipment in those areas; and
(d)no explosives will be used in the mining process.
I note there is no supporting evidence of these details although they do, in part, broadly align with the proposed work program as outlined above.
The work program also includes a rough sketch showing a hill in the middle of the mining claim and Mr Purse’s proposed diggings at the base of the hill in the area of or near to previous diggings.
As indicated, Mr Purse contends that the area of the mining claim has been subject to previous mining activity. The map of the mining claim area attached to Mr Purse’s contentions, which includes an aerial view, identifies some of these areas in red boxes and numbers them 1–4. It appears that not all of Area 1 has been subject to the same degree of activity as the other marked areas. Nonetheless, the image suggests that at least parts of the mining claim area have been cleared or subject to previous mining or exploration activity. The State’s material includes information about of a number of previous mineral and petroleum exploration tenements over the mining claim area. However, there is no detail of the extent of activities previously undertaken.
Mr Purse says at page 3 of his contentions that the mining claim area is “within a Restricted Area (RA), a reserve for Opal Mining”. He says that the historical reserve has numerous old workings and more recent opal exploration and mining activities within the RA. There is no evidence regarding the historical reserve mentioned by Mr Purse. The mining claim area is subject to Restricted Area 256 gazetted under the MRA, which limits the size of exploration permits that may be granted. However, apart from what is suggested by the aerial photograph, there is no evidence of historical opal mining undertaken in the area.
Consideration of section 39 criteria
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
Effect on any area or site of particular significance: s 39(1)(a)(v)
Section 39(1)(a)(i) relates to the effect of the grant of the mining claim on Koa’s enjoyment of its registered native title rights and interests. In this case, the registered native title rights and interests are those described in the entry for the Koa Determination on the Native Title Register under the NTA (s 30(3) NTA), namely non-exclusive rights to:
(a) access, be present on, move on and travel over the area;
(b) camp, and for that purpose build temporary shelters, on the area;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take, use and share Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) be buried and bury Native Title Holders within the area;
(h) maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm;
(i) teach on the area the physical and spiritual attributes of the area;
(j) hold meetings on the area; and
(k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
What is relevant however for present purposes is the extent to which Koa People in fact enjoy those registered native title rights and interests in the mining claim area (see Western Australia v Jidi Jidi at [27]). That question, and all of the matters listed in s 39(1)(a) largely depend on evidence from the native title party.
However, in adopting the contentions of the Koa claimant, GKAC says that it does not wish to make any contentions in relation to any of the criteria in s 39(1)(a), although it does make a number of contentions under s 39(1)(b) particularly in relation to cultural heritage protection and any conditions to be imposed. Those matters are discussed further below.
Mr Purse does not make any submission with respect to the matters in s 39(1)(a).
In its contentions, the State notes that the grant of the mining claim will be subject to the non-extinguishment principle under s 238 of the NTA and points to a range of factors which it says may be relevant to the impact of the grant on these criteria.
Those factors are:
(a)the statutory restrictions that will apply to the grant under the MRA and under the Environmental Protection Act1994 (Qld);
(b)the operation of the ACHA;
(c)the absence of any known Aboriginal community in the area;
(d)the relatively small size of the mining claim compared to the Koa Determination area;
(e)the impact of previous resource exploration; and
(f)the effect of the underlying pastoral leases on the enjoyment of native title (which I am required to consider under s 39(2) NTA).
With respect to the operation of the ACHA, the State notes that it imposes a duty of care on all persons in relation to what the State calls “effective recognition, protection and conservation” of Aboriginal cultural heritage.
In fact, the duty of care on a person undertaking an activity is to “take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage”. Failing to do so is an offence under the ACHA (s 23 ACHA). Other offences include unlawful harm (s 24 ACHA), prohibited excavation, relocation and taking away (s 25 ACHA) and unlawful possession of Aboriginal cultural heritage (s 26 ACHA). An Aboriginal party may also seek a stop order (s 32 ACHA) or injunction (s 32H Land Court Act 2000 (Qld)) to prevent harm to Aboriginal cultural heritage.
As the State points out, s 23(2) of the ACHA outlines the factors a court may take into account in considering whether a person has met the duty of care. There are also a number of prescribed circumstances in which a person’s duty of care is taken to have been met, and by which no offence will be committed, one of which is acting in compliance with the Duty of Care Guidelines.
On the question of freedom of access under s 39(1)(a)(iv), the State says it is not aware of any evidence that indicates or suggests the native title party’s freedom of access would be adversely affected.
Section 403 of the MRA provides that it is an offence for any person to enter land the subject of a mining claim without permission of the holder, subject to limited exceptions which do not appear to apply here. Accordingly, the grant of the mining claim may well affect GKAC’s freedom of access. No party has addressed this point and, as I have noted, GKAC has not provided any contentions or evidence with respect to the enjoyment of native title rights in the mining claim area. The area of the mining claim is also relatively small in the context of the area of the Koa Determination.
Section 39(1)(a)(v) concerns the effect of the proposed lease on “any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions”. This requires the site to be of special or more than ordinary significance to the native title party (Cheinmora v Striker Resources at
34–35).
The State provided a search of its Aboriginal Cultural Heritage Database and Aboriginal Cultural Heritage Register maintained under the ACHA (as did Mr Purse). Those searches do not disclose any known sites, although sites or areas do not need to be recorded to be of particular significance to GKAC. It is, as the State contends, for GKAC to identify any sites or areas of particular significance. None have been identified by GKAC.
In the absence of any evidence and contentions from GKAC, there is nothing before me to indicate that the grant of the mining claim will have an adverse effect on any of the matters in ss 39(1)(a)(ii)-(v). Although the grant may have an effect on GKAC’s freedom of access as discussed, there is no evidence as to the enjoyment of native title rights in the area.
Interests, proposals, opinions or wishes of Koa in relation to the management, use or control of land or waters affected by the mining claim: s 39(1)(b)
While it has not presented any evidence or contentions in relation to the effect of the grant of the mining claim on the matters under s 39(1)(a), GKAC argues that I should determine either that the mining claim must not be granted or that it may be granted on conditions.
It states that in the absence of conditions, its concerns regarding heritage impacts will not be addressed.
The submissions originally submitted by the Koa claimant pointed to its role under the ACHA as the relevant Aboriginal party for the mining claim area. That role now falls to GKAC (see ss 34 and 35 ACHA). GKAC contends that the Aboriginal party should be involved in the assessment and management of cultural heritage and that without its involvement, Mr Purse may cause harm to, or overlook, significant cultural heritage (Contentions at paragraph 17). GKAC does not otherwise address the operation of the ACHA.
GKAC contends further (at paragraphs 19–20) that Mr Purse’s activities under the mining claim will interfere with its native title rights and interests, including the right to maintain places of importance and areas of significance to the native title holders and to protect those places from physical harm.
The effect of the grant of the mining claim on the present enjoyment of GKAC’s registered native title rights and interests, including the right to maintain places of importance and areas of significance, falls under s 39(1)(a)(i). As I have already outlined, GKAC has not contended the mining claim will have such an effect. Further, no places of importance or areas of significance have been identified by GKAC in the area of the mining claim. In Nykina Mangala v Backreef Oil at [48], the Federal Court commented on the interrelationship between ss 39(1)(a) and (b) in the context of sites of particular significance, noting that evidence of harm to sites should properly be considered under s 39(1)(a)(v) and not in an isolated way under s 39(1)(b).
What I apprehend as the basis of GKAC’s argument here is that there may be cultural heritage in the mining claim area and without the involvement of GKAC (in exercise of its native title rights), Mr Purse may cause harm to any such cultural heritage. Put another way, GKAC’s concern is the potential for risk to as yet unidentified or undisclosed cultural heritage and ensuring GKAC’s right to be involved in its protection. I accept that GKAC wishes to ensure its protection of its cultural heritage. However, as already noted, there is no evidence of any cultural heritage in the area, nor of any risk to particular cultural heritage.
Economic or other significance of the mining claim: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the mining claim to Australia, the State, the area in which it is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the mining claim, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175–176).
The State contends that the grant would provide economic benefit to the State and economic stimulus to local towns and businesses in the vicinity of the mining claim, although there is no evidence or basis given for that contention. Mr Purse says that the grant is of benefit to Queensland and Australia because it creates investment opportunity and in turn contributes to the regional economy, which he says is currently in decline (again, there is no evidence on that point). Mr Purse also says the mining claim provides him with an alternative income stream other than grazing.
The Tribunal has often found the grant of mining tenements will be of economic benefit to the State, as well as local or regional areas. While the mining claim is small in size and scale I accept it will contribute, albeit in a minimal way, to the State (including through any rent or royalty which may be payable) and potentially to the local area through Mr Purse’s investment.
Public interest in the grant of the mining claim: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the mining claim. This expression has been described as importing a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation (see discussion in Minister for Lands v Thalanyji at [266]). There can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations (Western Australia v Thomas at 176).
GKAC did not make any contentions about whether the grant of the mining claim is in the public interest.
Mr Purse says he believes the grant is in the public interest and helps to “reinvigorate a once vibrant regional mining community”. Again, there is no evidence to support that claim.
The State cites Drake Coal at [108]–[109] where Deputy President Sosso noted that the Tribunal has found on numerous occasions that there is public interest in maintaining a vibrant mining industry. In that context I am satisfied there is public interest in the grant of the mining claim in that it contributes to the maintenance of the mining industry in Queensland.
Any other matter the Tribunal considers relevant: s 39(1)(f)
There are no other matters I consider relevant and none proposed by any of the parties.
Should the mining claim be granted and, if so, should conditions be applied?
Having weighed the matters in s 39 as outlined above, I conclude that the mining claim may be granted. While GKAC opposes the grant, it does not offer any evidence in support of that position and there is no basis to conclude that the grant must not be done. The mere possibility of risk to unidentified cultural heritage is not of itself a basis to conclude the mining claim must not be granted, and GKAC itself accepts its concerns could be met through conditions.
I turn then to consider the question of any conditions to be complied with by any of the parties. The State does not advocate for any conditions but the other parties do.
Conditions proposed by GKAC
GKAC refers to the Tribunal’s wide discretion to impose conditions and relies on the decision in Boonthamurra, where the Tribunal imposed conditions despite limited evidence.
GKAC argues for the conditions as set out in Annexure A, which require Mr Purse to undertake a cultural heritage survey before undertaking any works, but also contends that the grant should be subject to the Native Title Protection Conditions (NTPCs). These are not expressed as alternatives.
While GKAC does not identify or attach a copy of the conditions it refers to or proposes as the NTPCs, I understand it to mean the conditions known as native title protection conditions under the MRA which are routinely applied to the grant of exploration tenements subject to the expedited procedure under the NTA.
The State submits that “in practice”, NTPCs are only imposed on exploration permits and mineral development licences granted under the expedited procedure. Mr Purse strongly objects to the imposition of the NTPCs, both because of their unsuitability to a mining claim (which he says would result in uncertainty) and the conditions and cost structures, which he says are “even more onerous” than those sought by the Koa claimant during negotiations (Contentions at page 6).
Section 25AAA of the MRA defines native title protection conditions for a prospecting permit, s 141AAA does the same for exploration permits and s 191AAAA for mineral development licences. Chapter 3 of the MRA relating to mining claims does not specifically provide for the inclusion of native title protection conditions on the grant of a mining claim, although the Minister has a discretion to impose additional conditions to those prescribed by the MRA and regulations.
The version of the NTPCs currently available on the website of the Department of Resources (see Native title protection conditions | Business Queensland) is entitled “Native Title Protection Conditions – Conditions to Satisfy Requirements of Expedited Procedure s.237 Native Title Act 1993” and marked as Version 8.2 October 2021. As may be expected, those conditions are directed at exploration activities and also provide for cultural heritage surveys to be undertaken.
GKAC has not explained how it sees the NTPCs, which are designed for exploration, applying in the present circumstances, to mineral production under a mining claim. Further, certain provisions of the NTPCs (such as dispute resolution by the Land Court under s 363(ea) of the MRA) are underpinned by statutory provisions which do not apply here.
Additionally, as submitted by Mr Purse, there would be inconsistency and duplication between the conditions in Annexure A and the terms of the NTPCs.
The notion of applying the NTPCs to the present case appears misguided and, apart from calling for their imposition, GKAC does not address the application of the NTPCs here. In my view there is no basis to impose the NTPCs on the grant of the mining claim.
Turning to the conditions in Annexure A, GKAC says that it is appropriate for the Tribunal to impose such conditions on the basis that its heritage concerns will not otherwise be met. It contends that in other matters the Tribunal has deemed it appropriate to impose conditions which protect the right of the native title holders to protect sites of particular significance. Mr Purse does not agree to the conditions in Annexure A, noting in particular the lack of detail around what might constitute “reasonable costs”. Further, he does not consider the existence of residual heritage to be likely given the extent of previous disturbance to the mining claim area. Mr Purse says he will comply with his cultural heritage duty of care under the ACHA.
GKAC does not identify any particular Tribunal decisions in support of its proposed conditions, save for Boonthamurra, as mentioned above. Like this matter, Boonthamurra concerned a mining claim for opal mining and, similar to this matter, the native title party argued for conditions concerning cultural heritage inspection and monitoring. However, the Tribunal declined to impose such conditions noting at [16] that the proposed conditions would not provide the necessary certainty.
As argued by Mr Purse, similar criticisms may be made of the conditions in Annexure A. They leave matters for subsequent negotiation by the parties, lack definitions and there is no means by which to resolve any disputes.
While there have been determinations where the Tribunal has imposed conditions relating to the conduct of heritage surveys, those determinations have tended to concern matters where the Tribunal has found there are sites or areas of particular significance in the tenement area. Recent examples include Atlas Iron, India Bore Diamond Holdings and Eureka Petroleum. Each of those matters also concerned projects of a considerably larger scale and size than the mining claim and, it appears that in each case, the relevant grantee party either agreed to or did not oppose the imposition of conditions regarding heritage surveys.
On the facts in this matter, much like Boonthamurra, I do not propose to impose the conditions in Annexure A as proposed by GKAC.
Conditions proposed by Mr Purse
Mr Purse contends for a condition requiring him to operate in accordance with the ACHA and the Duty of Care Guidelines under the ACHA (ACHA condition).
In addition, Mr Purse says that he is amenable to the same conditions imposed in Boonthamurra, which are Annexure B to this decision. Those conditions do not require a survey but they do ensure that GKAC would be notified of matters such as a new work program.
The Tribunal invited the other parties to provide any comments on those proposed conditions. GKAC did not comment. The State identified the need to change a statutory reference to the MRA, but otherwise viewed the conditions in Annexure B, or conditions consistent with those terms, as appropriate.
The ACHA Condition sought by Mr Purse reflects his stated commitment to comply with the ACHA and the Duty of Care Guidelines. Neither the State nor GKAC made any comment about this condition. I do not propose to impose a condition requiring compliance with State law. The ACHA will apply according to its terms.
However, parties should be aware that this determination is, for the ACHA, a “native title agreement” on which Mr Purse may rely to meet his duty of care (see definition in sch 2 and s 23(3) ACHA). The exception to that position is where Aboriginal cultural heritage is expressly excluded from being subject to the agreement. The definition of “native title agreement” under the ACHA was considered by the Tribunal in Bligh Coal in the context of s 86 of the ACHA. In that case, much like this one, there was no evidence of any sites or areas of particular significance in the tenement area. The native title party asked that the determination expressly exclude cultural heritage, however, that occurred too late and, as the President noted in his correspondence at Attachment 2 to that decision, the consequence arising from the Tribunal’s determination is a result of the operation of the ACHA itself.
There may be a case where it is appropriate to expressly exclude cultural heritage from the determination as contemplated by the ACHA, however, this is not that case. No party has made contentions on the issue or sought such a determination and there is no evidence from GKAC which would support such a conclusion.
In Boonthamurra, the Tribunal was satisfied that the imposition of the conditions in Annexure B was appropriate for a range of reasons including because the native title party had consistently asserted the importance of cultural heritage in the tenement area, the long history of positive negotiations between the parties and the grantee party’s approach to respecting cultural heritage. The Tribunal considered the conditions were appropriate to facilitate a positive ongoing relationship between the parties (Boonthamurra at [41]).
Aside from Mr Purse’s general commitment to comply with his duty of care, none of those factors apply here and GKAC has not expressed any view about the appropriateness of the conditions. Nonetheless, Mr Purse is content to abide by them and they provide a means for ongoing communication between the parties and for GKAC to be kept informed of key events. Accordingly, I propose to impose the conditions in the final form in Annexure C. Parties should note that in addition to updating the statutory reference as advised by the State, I have slightly amended condition 5b.
Determination
I determine that mining claim MC 300221 may be granted subject to the conditions set out in Annexure C.
Ms Nerida Cooley
Member
4 February 2022
ANNEXURE A
CONDITIONS PROPOSED BY GKAC
Prior to the commencement of mining operations over the area of MC300221, a survey must be undertaken.
A survey for condition 1 must be conducted by:
a. a suitably qualified archaeologist, ethnographer, anthropologist of other heritage professional, agreed between the Aboriginal Party and the grantee party, engaged and paid for by the grantee party;
b. Up to three Koa common law holders, nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice. Other Koa common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the mining claim. If within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such a survey.
Subject to any law, a survey required under condition 1 must be completed within 30 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Koa common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):
a. with the written consent of the native title party; or
b. to a bona fide prospective assignee of the lease; or
c. to an actual assignee of the lease; or
d.to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
e. as required by law; or
f. for a purpose under the Aboriginal Cultural Heritage Act 2003 (Qld)
ANNEXURE B
CONDITIONS PROPOSED BY MR PURSE
The grantee party must provide the native title party with a copy of any work program the grantee party has submitted, or submits, in compliance with s 81(c) of the Mineral Resources Act 1989 (Qld) in relation to the mining claim. The work program must be provided to the native title party within 60 days of the date of this determination or within 60 days of the date of the submission of the work program, whichever is later. The grantee party may exclude sensitive commercial data from the copy of the work program provided.
The grantee party must provide a copy of any application the grantee party has made, or makes, for an environmental authority under s 121 of the Environmental Protection Act 1994 (Qld). The application must be provided to the native title party within 60 days of the date of this determination, or within 60 days of the date of that application, whichever is later.
If the grantee party notifies the administering authority of a Notifiable Activity (as set out under Schedule 3 and defined under Schedule 4 of the Environmental Protection Act 1994 (Qld)) in relation to the mining claim, the grantee party must provide the native title party with a copy of the notice within 30 days of that notification.
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 30 days of that submission.
Correspondence to the native title party must be sent to:
a.the address for service listed on the National Native Title Register; and
b.any other representative named by the native title party from time to time.
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).
ANNEXURE C
FINAL CONDITIONS
The grantee party must provide the native title party with a copy of any work program the grantee party has submitted, or submits, in compliance with s 81(d) of the Mineral Resources Act 1989 (Qld) in relation to the mining claim. The work program must be provided to the native title party within 60 days of the date of this determination or within 60 days of the date of the submission of the work program, whichever is later. The grantee party may exclude sensitive commercial data from the copy of the work program provided.
The grantee party must provide a copy of any application the grantee party has made, or makes, for an environmental authority under s 121 of the Environmental Protection Act 1994 (Qld). The application must be provided to the native title party within 60 days of the date of this determination, or within 60 days of the date of that application, whichever is later.
If the grantee party notifies the administering authority of a Notifiable Activity (as set out under Schedule 3 and defined under Schedule 4 of the Environmental Protection Act 1994 (Qld)) in relation to the mining claim, the grantee party must provide the native title party with a copy of the notice within 30 days of that notification.
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 30 days of that submission.
Correspondence to the native title party must be sent to:
a.the address for service listed on the National Native Title Register; and
b.any other address for service notified by the native title party from time to time.
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).
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