Taroom Coal Pty Ltd/Richard Doyle and Ors on behalf of Iman People #2/State of Queensland

[2013] NNTTA 124

NATIONAL NATIVE TITLE TRIBUNAL

Taroom Coal Pty Ltd/Richard Doyle and Ors on behalf of Iman People #2/State of Queensland, [2013] NNTTA 124 (23 August 2013)

Application No:        QF2013/0001

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Taroom Coal Pty Ltd (grantee party)

- and -

Richard Doyle and Ors on behalf of Iman People #2 (QC1997/055) (native title party)

- and -

The State of Queensland (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Member Helen Shurven

Place:  Perth

Date of decision:                   23 August 2013

Hearing dates:  On the papers

Representatives

Grantee party:  Dr Jonathon Fulcher, Hopgood Ganim

Ms Courtney Smith, Hopgood Ganim

Native title party:                 Mr Michael Owens, Michael Owens & Associates

Government party:              Ms Bernadette Wrafter, Crown Law
  Ms Leilehua Helu, Crown Law

Catchwords:             Native title – future act – no agreement with native title party – application for determination for the grant of mining lease – s 39 criteria considered – whether the future act can be done – determination that the act may be done

Legislation:               Aboriginal Cultural Heritage Act 2003 (Qld), ss 28, 91 and 94

Acts Interpretation Act 1901 (Cth)

Environmental Protection Act 1994 (Qld), s 430

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 67

Land Act 1962 (Qld)

Mineral Resources Act 1989 (Qld), ss235, 276 and Chapter 6

Mineral Resources Regulation 2003 (Qld), s 18

Native Title Act 1993 (Cth), ss 23B, 23C, 23E, 28, 29, 30, 31, 35, 36, 36A, 38, 39, 77, 109, 123, 151, Schedule 1

Native Title (Queensland) Act 1993 (Qld), s 20

Water Resources (Great Artesian Basic) Plan 2006

Cases:Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 52 (‘Adani’)

Carpentaria Gold Pty Ltd/Wangan and Jagalingou People/Queensland [2010] NNTTA 148 (‘Carpentaria’)

Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21 (‘Cheinmora’)

Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Others (Birri People)/State of Queensland [2012] NNTTA 31 ('Drake Coal')

Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 ('Egerton Gold')

Little v Western Australia [2001] FCA 1706 ('Little')

Taroom Coal Pty Ltd/Richard Doyle and Ors on behalf of Iman People #2/State of Queensland, [2013] NNTTA 85 (‘Taroom Coal’)           

Western Australia v Thomas and Others (1996) 133 FLR 124 (‘Waljen’)

Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49; (2009) 2 ARLR 214 (‘Western Desert Lands’)

REASONS FOR DECISION

Background

1. On 22 September 2010, the Government party, through the Department of Natural Resources and Mines (‘DNRM’), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant mining lease ML50254 (‘the proposed lease’) to Taroom Coal Pty Ltd (‘the grantee party’). The notice specified 13 October 2010 as the notification day (see s 29(5) of the Act).

2. The notice provides any person who, four months after the notification day, is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, to a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act). On 14 February 2011, being four months from the notification day due to the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the claim of the Iman People #2 (QC1997/055) wholly overlapped the proposed lease. As there were no other claims or determinations overlapping the proposed lease on that date, Iman People # 2 (‘the native title party’) are the only native title party for the purpose of this determination (see s 29(2)(b)(i) and s 30(1) of the Act).

3. The proposed lease is 27.7 square kilometres in size in total, and is situated in the Western Downs Regional Council Local Government area, approximately 35 kilometres west of Wandoan, in Queensland. The grant of the proposed lease relates to the Elimatta Project which involves the development of an open-cut thermal coal mine, located in the Surat Basin in Southern Queensland.

4. According to the s 29 notice, the grant of the proposed lease would authorise the grantee party to mine thermal coal and carry out activities subject to the Mineral Resources Act 1989 (Qld) (‘MRA’) for a term of 40 years, with the possibility of renewals for a further term not exceeding 40 years. The notice also specifies the underlying tenure consists of:

   ·     eight parcels of freehold land;

   ·      Lot 43 on Crown Plan AB222 (a camping and water reserve subject to a pastoral lease for grazing which is held by a related body corporate of the grantee party, Elimatta Pastoral Pty Ltd); and

   ·     Horse Creek (a boundary watercourse).

5. As native title has been extinguished in respect of the freehold land within the proposed lease, Lot 43 on Crown Plan AB222 is an area over which native title may exist, and in relation to which native title rights and interests may be impacted upon. Lot 43 on Crown Plan AB222 is approximately 1.22 square kilometres in size and is located approximately in the centre of the proposed lease.  Also on the proposed lease is a boundary watercourse (Horse Creek – ephemeral watercourse) which is located between Lot 43 on Crown Plan AB222 and Lot 42 on Crown Plan AB241.

6. The proposed lease is a future act covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28, the future act will be invalid to the extent that it affects native title. In this case, s 28(1)(g) is the relevant requirement, that is, invalidity of the future act could be avoided if ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with.’

The section 35 future act determination application

1. The grantee party applied to the State of Queensland for the grant of the proposed lease on 2 June 2009. Following the notification period (13 October 2010 to 14 February 2011) for the proposed grant of the lease, parties commenced negotiations. Negotiations continued over two years but did not lead to an agreement of the kind specified in s 31 of the Act. On 11 April 2013, the grantee party made an application for the Tribunal to make a future act determination under s 38 of the Act, as the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) and at least six months had passed since the notification day specified in the s 29 notice (see s 35 of the Act).

2. On 17 April 2013, President Webb appointed me as the Member to conduct the inquiry into the future act determination application (see s 123(1)(c) of the Act), and I accepted the application according to s 77 of the Act.

3. On 26 April 2013, parties were provided with a map prepared by the Tribunal’s Geospatial Services indicating registered claims, underlying tenure, Aboriginal communities, cultural heritage sites and other topographical information.  A variety of maps and plans were also provided by the Government party and grantee party (as outlined in [15] below), and these were not contested by the native title party, and were used in the consideration of this matter.

Power to conduct the inquiry 

1. Section 31(1)(b) of the Act requires parties to negotiate in good faith with a view to obtaining the agreement of native title parties to the doing of the future act, whether or not subject to conditions. If any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination on the application (see s 36(2) of Act).

2. A preliminary conference was convened on 1 May 2013.  The parties agreed to a s 150 conference process to assist resolve the matter.  Three s 150 conferences were convened by Member O’Dea, and the s 150 process was terminated on 30 May 2013 as parties were unable to reach agreement.

3. The native title party challenged the Tribunal’s power to determine the application made under s 35 of the Act, contending that the grantee party had not negotiated in good faith as required by s 31(1)(b) of the Act.

4. After consideration of the material provided by the parties, on 9 July 2013 I handed down my decision that I was satisfied the grantee party did negotiate in good faith as required by s 31(1)(b) of the Act (see Taroom Coal). Accordingly, I concluded the Tribunal has power to exercise its jurisdiction to conduct the present inquiry into the future act determination application.

The inquiry

1. During the preliminary conference to the inquiry, I invited parties to consider whether the matter should be determined on the papers, or whether an oral hearing was necessary. I received no such request. On 20 August 2013, I informed parties that I would proceed to determine the matter on the papers, unless requests for an oral hearing were subsequently received. I did not receive any requests and I have considered it appropriate to determine the matter on the papers (see s 151(2) of the Act).

2. Following the preliminary conference, I made Directions in relation to the inquiry on 1 May 2013, which were amended on 23 May 2013 and 5 July 2013. Directions required parties to provide contentions and supporting evidence regarding the s 39 criteria to the Tribunal and other parties. In compliance with those, the following were received:

(a)On 15 July 2013, the Government party provided its statement of contentions, together with:

(i) A copy of the s 29 notice for ML 50254;

(ii) An overlap analysis report for ML 50254 generated 16 April 2013;

(iii) Topographical location map of ML 50254 prepared by the Queensland Government on 30 April 2013;

(iv) Extract from the Tribunal’s Register of Native Title Claims for Iman People #2 generated 11 April 2013;

(v) Exploration permit departmental enquiry report for EPC 650;

(vi) Mining tenure public enquiry report for ML 50254;

(vii) Land title searches of Lot 1 on AB 241; Lot 33 on AB 128; Lot 41 on AB 241; Lot 1 on SP103977; Lot 43 CP AB222 (created 01/12/1997); Lot 43 CP AB222 (created 14/02/1953); Lot 37 on AB180; Lot 38 on AB188; Lot 42 on AB241; Lot 2 on SP103977; List of Mining Tenures relating to ML 50254;

(viii) Native Title Assessment (dated 2 July 2009)

(ix) Tenure maps relating to ML50254

(x) Maps of overlapping tenure in Iman People #2 claim

(xi) Results of Cultural Heritage Register and Database Search as of 8 July 2013;

(xii) Queensland Government Code of Environmental Compliance for Exploration and Mineral Development Projects; and

(xiii) Duty of Care Guidelines (s 28 of Aboriginal Cultural Heritage Act 2003 (Qld)).

(b)On 15 July 2013, the grantee party submitted their statement of contentions, together with:

(i) Map 1: Regional context of the project (EIS Figure 3.1); Map 2: Local context of the project (EIS Figure 3.2); Map 3: Underlying tenure of ML 50254; Map 4: Native Title Party’s claim and ML 50254 overlap; Map 5: Current mining and petroleum tenements surrounding ML 50254; Map 6: Current mining and petroleum tenements surrounding ML50254 (with topography);

(ii) Public Enquiry Reports for ML 50254 (dated 11 July 2013) and EPC 650 (dated 12 July 2013);

(iii)  Extract from the Tribunal’s Register of Native Title Claims (‘RNTC’) for Iman People #2 and RNTC Attachment showing the area of land and waters covered by the application (generated 11 July 2013);

(iv) Extract from the Tribunal’s Schedule of Applications for  Iman People #2 and Attachments showing the area of land and waters covered by the application (generated 11 July 2013) and a map of the claim area;

(v) Tenure search results underlying ML 50254: Land reserve search for Lot 43 on AB 222; State tenure search for Lot 43 on AB 222; Land title search for Lot 1 on SP103977; Land title search for Lot 2 on SP103977; Land title search for Lot 33 on AB128; Land title search for Lot 38 on AB188; Land title search for Lot 37 on AB180; Land title search for Lot 1 on AB241; Land title search for Lot 42 on AB241; and Land title search for Lot 41 on AB241;

(vi)  A copy of the section 29 notice for ML 50254;

(vii) A copy of the section 29 notice for ML 50254 as published in Koori Mail on 22 September 2010;

(viii) A copy of the Form 5 future act determination application received by the Tribunal on 11 April 2013;

(ix) ASIC company search reports for: New Hope Corporation Ltd ACN 010 653 844; Northern Energy Corporation Ltd ACN 081 244 395; Taroom Coal Pty Ltd ACN 079 251 442; and Elimatta Pastoral Pty Ltd ACN 157 981 747;

(x) Affidavit of Mr Peter Thomas Isles sworn on 15 July 2013, with  the following annexures:

·PI-1: Executive Summary, Environmental Impact Statement

·PI-2: Section 3, Project Description, Environmental Impact Statement

·PI-3: Appendix Z, Economic Impact Assessment, Environmental Impact Statement;

·PI-4: Environment Protection and Biodiversity Conservation Act 1999 Referral Decision;

·PI-5: Letter from the office of the Coordinator-General confirming that Elimatta is a project of Regional Significance;

·PI-6: Initial Advice Statement regarding Project of Regional Significance Iman Cultural Heritage Report and Recommendations;

·PI-7: Iman Cultural Heritage Report and Recommendations regarding site investigations on 1 and 2 April 2008;

·PI-8: Letter from Madonna Barnes, a member of the native title party, to Brian Roache dated 14 April 2008 regarding cultural heritage; and

·PI-9: Elimatta Cultural Heritage notes.

(xi) Affidavit of Ms Courtney Smith sworn on 15 July 2013, with the following annexures:

·CS-1: the search results for historical exploration and production tenements over ML 50254;

·CS-2: Aboriginal and Torres Strait Islander Cultural Heritage Search Request Form (assumed to be submitted on 26 June 2013 as outlined at the dot point below); and

·CS-3: Email dated 11 July 2013 from Ms Alyce Hamlin of the grantee party, requesting receipt of cultural heritage search results pursuant to the search request submitted on 26 June 2013; and

(xii) Affidavit of Mr Damian John Roe sworn on 10 July 2013, with the following annexures:

·      DJR-1: Minutes of a meeting between the native title party and Northern Energy Corporation Ltd (‘NEC’) held on 9 September 2010;

·      DJR-2: Minutes of a meeting between the native title party and NEC held on 10 August 2011;

·      DJR-3: Minutes of a meeting between the native title party and NEC held on 28 September 2011;

·      DJR-4: Emails between Ms Alyce Hamlin of the grantee party and the native title party representative Mr Michael Owens dated 18 October 2011 to 1 November 2011 confirming the native title party’s list of requests from the meeting of 28 September 2011;

·      DJR-5: Minutes of a meeting between the native title party and NEC held on 21 June 2012; and

·      DJR-6: Notice of intention to develop cultural heritage management plan, addressed to the native title party and dated 14 March 2013.

1. The affidavits of Mr Isles and Mr Roe are annexed to this decision at Annexure A and B respectively.  Ms Smith's affidavit has not been reproduced as it deals with the method of requesting the cultural heritage search, and I accept that search was undertaken as described.

2. The Directions required the native title party to submit their contentions and supporting evidence on or before 12 August 2013. However, the Tribunal did not receive any contentions or supporting evidence from the native title party and did not receive any request for an extension of time. The native title party representative had foreshadowed, at the preliminary conference, that it was unlikely any such submissions would be made. As such, the s 39 criteria is to be assessed in this decision in view of the submissions and evidence provided by the grantee party and Government party.

Underlying tenure and usage

1. The Government party provided information about the tenure underlying the proposed lease.  It comprises:

(a)Eight freehold parcels confirmed as estates in fee simple (Part of Lot 1 on AB241, granted 26 June 1997; part of Lot 33 on AB128, granted 22 August 1974; part of Lot 41 on AB241, granted 26 June 1997; part of Lot 1 on SP103977, granted 5 February 1998;  part of Lot 37 on AB180, granted 24 May 1991; part of Lot 38 on AB188, granted 26 January 1983; part of Lot 42 on AB241, granted 26 June 1997; and part of Lot 2 on SP103977, granted 5 February 1998);

(b)A leasehold interest with underlying reserve (Lot 43 on AB222);

(c)The boundary watercourse Horse Creek; and

(d)Perrets Road which runs through the proposed lease.

1. In relation to the eight freehold interests, the Government party submits that native title has wholly been extinguished, either because they are previous exclusive possession acts (under s 23B(2), 23C, 23E and Schedule 1, Part 3, Clause 22 of the NTA and s 20 of the Native Title (Queensland) Act 1993 (Qld)) or because native title was extinguished at the time of granting each interest under the Land Act 1962 (Qld).

2. Native title has not been extinguished in respect of Lot 43 on Crown Plan AB222. That Lot is held by Elimatta Pastoral Pty Ltd.  It was granted on 28 October 1997 for the purpose of ‘Grazing - Reserve, Road or Stock Route’ and is due to expire on 27 October 2017. The terms of the lease are that ‘the lessee shall not deprive the public or travelling stock of the rights and enjoyment of the waters located in Horse Creek and the stock of the leased land shall be managed by the lessee in such a manner as to ensure as far as reasonably possible, that a reasonable body of pasturage is available to bona fide travelling stock’ (paragraph 3.5 Government party contentions).

3. Exploration and mining activity has occurred near the proposed lease. Annexure 17 to the Government party’s contentions reports tenements overlapping the native title party’s claim. Exploration Permit for Coal 650 (‘EPC650’), held by Taroom Coal Pty Ltd, overlaps the proposed lease and has allowed for exploration related to the proposed lease. EPC650 was granted in 5 March 1998 and is currently under renewal. Petroleum Lease 299 (‘PL299’), held by BG International (Aus) Pty Ltd, also overlaps the proposed lease.

Proposed mining activity

1. Information regarding the project is found within the grantee party contentions and both the Project Description and Executive Summary of the Environmental Impact Statement. The Elimatta Project covers approximately 44.6 square kilometres and aims to use truck and excavator methods to develop approximately 259 million tonnes of thermal coal of the Juandah formation from the Surat Basin, over a 40 year period inclusive of construction, operation, decommissioning and rehabilitation phases.

2. Some of the key aspects of the project include: open-cut mining operations; mine infrastructure; a coal handling and processing plant; water management dams; a transport and services corridor; a common user rail and services corridor; and transportation of product coal to Gladstone. It will involve the permanent diversion of a section of Horse Creek as part of the water management operation. Mine production will be approximately 5 million tonnes each year of product coal, and full scale operations will run 24 hours a day, 7 days a week.

3. The business of the project is handled by NEC, of which the grantee party is a wholly-owned subsidiary. NEC is a member of the New Hope Group.

4. The project is currently being assessed for approval under the Environmental Protection Act 1994 (Qld) ('EPA'). The Environmental Impact Statement was submitted in 2012. The project did not require assessment and approval from the Commonwealth Government under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBCA’) as it was not declared to be a ‘controlled action’ as defined under s 67 of the EPBCA (outlined at page 9 of the Executive Summary to the Environmental Impact Statement). This decision was made on 1 May 2008, as detailed by Annexure PI-4 to Mr Isles’ affidavit.

1. The proposed lease is regarded as a key component of the project. In addition to the proposed lease, mining leases 50270 and 50271 are required for the project. These leases sit to the north of the proposed lease. The rail and services corridor required covers an area of approximately 44.6 square kilometres.

2. The Environmental Impact Statement for the project indicates that '...economic benefits will include income to the State of Queensland through royalties and payroll taxes, as well as income to the Federal Government through corporate, mineral resources rent, carbon and goods and services taxes. It is estimated that the State and Commonwealth Governments will receive in excess of $2.4 billion and $1.08 billion respectively' (at page ii).

Conditions of grant

1. The grant of the proposed lease is pursuant to Chapter 6 of the MRA. Section 235 details the general entitlements of the holder of a mining lease, inclusive of entering and occupying the land of the lease area for authorised purposes and doing such things as allowed by the grant of the lease or the provisions of the MRA. Every holder of a mining lease is subject to conditions set out in s 276(1) MRA, summarised as follows:

(a)the land is only to be used for the purpose specified in the lease;

(b)the holder must carry out improvement restoration for the mining lease;

(c)prior to the termination of the lease, all buildings, structures, equipment and plant on the tenement area must be removed unless otherwise approved by the Minister;

(d)no obstruction or interference with any third party right of access to the mining lease area unless there is prior approval from the Minster;

(e)the holder shall furnish all prescribed reports, returns, documents and statements as required

(f)provide materials obtained under the mining operations to the Minister in the manner and quantities as the Minister reasonably requires;

(g)where the tenement area is a reserve, the holder shall comply with the terms and conditions upon which the consent of the owner or Governor-in-Council to the grant of the lease was given;

(h)during the term of the lease maintain all survey pegs and other markings;

1. make all payments of compensation and comply with terms of any agreement or determination relating to compensation pursuant to s 279-282 MRA;

(j)payment of rental, royalties, local authority rates and deposits as required;

(k)comply with the MRA and other mining legislation;

(l)comply with other conditions as prescribed;

(m)comply with other conditions as determined by the Minister

1. Section 18 of the Mineral Resources Regulation 2003 (Qld) contains further conditions to be imposed, summarised as follows:

(a)using, where practicable, only existing roads or tracks on the relevant land;

(b)taking reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the relevant land;

(c)not allowing an animal on the land, unless the land is fenced in a way to prevent the animal leaving the land or restraining the animal; and

(d)not to discharge a firearm on the land unless the holder has the consent of the owner of the land and the consent is lodged with the mining registrar.  

1. The environmental regulations associated with the grant of the mining lease are covered by the EPA, which requires the holder of a mining lease to obtain environmental authority for mining activities on the proposed lease area. One aspect of an environmental authority is that the holder must comply with the conditions contained in the Code of Environmental Compliance for Mining Lease Projects (provided as annexure 22 to the Government party’s contentions). A key requirement of the Code is that the holder must use measures to minimise disturbance to land and vegetation and must not carry out activities within 100 metres of an identified historical, archaeological or ethnographic site (see Condition 15 of the Code). The conditions of the Code are enforceable, breach of which is an offence resulting in penalties under s 430 EPA. I adopt the explanatory summary of the Code as set out in Drake (at [58]-[59]).

Legal Principles

1. The Tribunal must determine whether the act must not be done, or that the act may be done, or that the act may be done subject to conditions (see s 38 of the Act). Section 38(2) prohibits the Tribunal from imposing a profit-sharing condition with its decision. To determine the matter, the Tribunal must assess the evidence provided by each party in terms of the criteria in s 39 of the Act, which reads as follows:

   39 Criteria for making arbitral body determinations

   (1) In making its determination, the arbitral body must take into account the following:

   (a) the effect of the act on:

   (i) the enjoyment by the native title parties of their registered native title rights and interests; and

   (ii) the way of life, culture and traditions of any of those parties; and

   (iii) the development of the social, cultural and economic structures of any of those parties; and

   (iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

   (v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

   (b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

   (c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

   (e) any public interest in the doing of the act;

   (f) any other matter that the arbitral body considers relevant.

   Existing non-native title interests etc.

   (2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

   (a) existing non-native title rights and interests in relation to the land or waters concerned; and

   (b) existing use of the land or waters concerned by persons other than the native title parties.

   Laws protecting sites of significance etc. not affected

   (3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

   Agreements to be 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.

1. The Tribunal must weigh the various s 39 criteria on the basis of evidence presented. The Act does not require greater weight to be given to some criteria than others. It is a discretionary exercise in assessing the various factors of s 39 of the Act, and it will depend on the evidence provided in relation to each criterion (see Western Desert Lands at [37]). In Waljen,  the Tribunal explained (at 165-166):

   We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us.  The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.

   The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.

   The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.

2. Section 36(1) of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable. Section 109(3) of the Act details that the Tribunal is not bound by technicalities, legal forms or rules of evidence. Although there is no burden of proof which falls on any of the parties in a future act inquiry, the Tribunal can only act on evidence (see Waljen at 157-158). Ultimately, a common sense approach to evidence is required and the determination will be based on logically probative evidence and application of the law (see Waljen at 162-163).

Section 39 Criteria

Section 39(1)(a)(i)– enjoyment of registered native title rights and interests

1. The  registered native title rights and interests as appear on the Register of Native Title Claims for Iman People #2 (QC1997/055) are as follows:

   2.  Over areas where a claim to exclusive possession cannot be recognised, the claim group claims the  

   non-exclusive right to:

   (a) live and be present on the application area;

   (b) take, use, share and exchange Traditional Natural Resources for personal, domestic and non-commercial, communal purposes;

   (c) conduct burial rites;

   (d) conduct ceremonies;

   (e) teach on the area about the physical and spiritual attributes of the area;

   (f) 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;

   (g) light fires for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation.

   3. For the purposes of 2. Above;

   “Live” means to reside and for that purpose erect shelters and temporary structures but does not include a  

   right to construct permanent structures.

1. The native title rights and interests are subject to the valid laws of the State of Queensland and the Commonwealth of Australia and the rights conferred under those laws (as noted in the Register).

Evidence provided      

1. The Government party states that it is unaware of information indicating that the enjoyment of registered native title rights and interests would be affected for the purposes of s 39(1)(a)(i). It also contends that the grant of the proposed lease would not affect the native title party’s enjoyment of registered native title rights and interests due to the following:

   (a)The Government party is not aware of any Aboriginal communities within the proposed lease, or in close proximity to it.

   (b)The underlying tenure, as outlined above, would have already affected the enjoyment of those rights and interests, due to the freehold component and the grants of Lot 43 on Crown Plan AB222, EPC 650 and PL299, such that the grant of the proposed lease may not have a further effect.

   (c)The restrictions of the EPA and the operation of the Aboriginal Cultural Heritage Act 2003 (Qld) (‘ACHA’). The Government party does not explain specific provisions, but suggests those Acts generally would detract from those rights and interests being affected.

   (d)The proposed lease covers a limited portion of the native title party’s claim area.

   (e)The proposed lease has been subject to various activities of third parties carried out under exploration permits and mining leases in the general area of the proposed lease.

2. The grantee party contended that s 39(1)(a)(i) is a matter for the native title party to address, as the grantee party has limited information. In its contentions, the grantee party refers to paragraphs 8 and 9 of Mr Roe’s affidavit, where Mr Roe states that over the course of negotiations, the grantee party ‘sought to discuss and understand the way in which the enjoyment of the Native Title Party’s native title rights and interests would be affected by the grant of MLA50254’ and that ‘the Native Title Party did provide the Applicant with some general information’ in relation to s 39(1)(a)(i).

3. Mr Roe provides one specific example in his affidavit: at paragraph 10 he refers to a member of the native title party’s statement at the meeting on 21 June 2012 that ‘I want to go out and camp on that area of the reserve [Lot 43 on Crown Plan AB222] – I think my father used to camp there and I have some strong feelings about it’. In relation to camping on the proposed lease, the grantee party believes access will be problematic due to health and safety risks (see paragraph 29 of Mr Isles’ affidavit).

4. Mr Isles’ explanation demonstrates that the grant of the proposed lease would affect camping activities, which would in turn affect the registered right to live on the proposed lease. However, in the absence of evidence from the native title party that camping does occur on that area, rather than it being an aspirational area for camping, I am unable to find this registered right to be affected.

5. In addition, according to the minutes of the meeting between NEC and the native title party on 10 August 2011, Ms Fesl, a member of the native title party, raised concern that ‘after mining a huge area, nothing will ever grow and we are left with the deep holes, often filled with water. These holes full of water are extremely dangerous’. Also within that meeting, Mr Roe, solicitor for the grantee party, mentioned that the project will require Horse Creek to be diverted. This is confirmed by Government party and grantee party submissions and evidence.  However, no contentions or evidence was put forward on this point by the native title party to confirm the nature and extent of any relevant native title interests in relation to this area of land.

6. The grantee party contends the grant of the proposed lease is unlikely to have a significant impact on the registered native title rights and interests due to:

   (a)The absence of Aboriginal communities situated within or near the proposed lease;

   (b)The size of the proposed lease, and more specifically the size of Lot 43 on Crown Plan AB222 and Horse Creek, is limited in proportion to the size of the claim area;

   (c)The operation of the non-extinguishment principle, the effect of the conditions of the mining lease and the operation of the Mineral Resources Act 1989 (Qld) (‘MRA’) and associated Regulations;

   (d)The grantee party is not yet aware of any cultural heritage, though this may change as it is waiting on cultural heritage search results (see s39(1)(a)(v) below);

   (e)The grantee party’s view that the suspension of the exercise of any native title rights and interests which may exist will not impact on the exercise of claimed native title rights and interests which may exist in all other parts of the native title claim area other than Lot 43 on Crown Plan AB222 and Horse Creek;

   (f)The proposed lease has been subject to past exploration activities and is already subject to the rights granted to third parties and the holder of EPC650, which would already interfere with their rights and interests;

   (g)The grantee party did not receive a response to its notice of its intention to develop a cultural heritage management plan (see [57] below).

Consideration

1. Section 39(1)(a)(i) requires the Tribunal to determine the likely impact of the proposed future act on the registered native title rights and interests of each native title party, and not assume that there will, in fact, be an impact on those rights and interests. Such a determination requires actual evidence of the exercise of the registered native title rights and interests on, or in close proximity to, the area of the proposed lease. The only party that can provide such evidence is the relevant native title party. While there is no obligation imposed on a native title party to provide such evidence, as a matter of common sense there is a responsibility to do so if the relevant native title party has concerns about the grant of a proposed lease (see Egerton Gold at [25]). In this matter, no evidence has been provided by the native title party of the past, present or potential exercise or enjoyment of their registered native title rights and interests.

2. The native title rights and interests may exist to varying degrees over the native title party claim area, however, there is no material before me indicating that the grant of the proposed lease will negatively impact on the registered native title rights and interests of the native title party in relation to the particular subject area.

Section 39(1)(a)(ii) – way of life, culture and traditions of the native title party

Evidence provided

1. The Government party states it is unaware of any information indicating the native title party’s way of life, culture and traditions would be affected by the grant of the proposed lease, but contends it would not be affected in any event (as outlined under s 39(1)(a)(i) above).

2. The grantee party notes, through reference to paragraph 8 and 9 of Mr Roe’s affidavit, the native title party provided the grantee party with some general information as to the way of life, culture and traditions, as found generally in the Minutes of various meetings.

Consideration

1. The Tribunal has no evidence before it to base a finding that there would be any negative impact by the granting of the tenements on the way of life, culture and traditions of the native title party.  Consequently, I cannot conclude that there will be any effect on the way of life, culture and traditions of the native title party.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

Evidence provided

1. The Government party states it is not aware of any information indicating the social, cultural and economic structures of the native title party would be affected by the grant of the proposed lease and contends it would not be likely to affect those matters (as outlined under s 39(1)(a)(i) above).

2. The grantee party contends the employment opportunities of the Iman People will be positively impacted by the grant of the proposed lease. At paragraph 30 of Mr Isles affidavit, he states 'NEC is willing to use its best endeavours to maximise the employment opportunities available to members of the native title party on the Project, in accordance with its existing employment strategies, protocols and policies'. The potential employment opportunities were discussed at meetings held between NEC and the native title party on 9 September 2010, 10 August 2011, 28 September 2011 and 21 June 2012. Over the course of these meetings, attendees discussed how an employment strategy might focus on local residents, inclusive of considering Iman People. The native title party’s request for a target of 15-20 per cent of employees to be Iman People was not met and NEC proposed a liaison committee to handle the indigenous employment strategy. Although no agreement was reached on these matters, these discussions indicate an intention for the employment strategy to incorporate the Iman People to some extent.

Consideration

1. If the future act is likely to positively impact the development of social, cultural and economic structures of the native title party, this can be taken into account in assessing s 39(1)(a)(iii) (see Waljen at 170).

2. The Tribunal in this matter has little evidence before it that assists in undertaking such an evaluation.  Material provided by the grantee party suggests that the grant of the proposed lease may have a positive impact on the general local community by providing economic benefit and possible employment opportunities.  However, there is insufficient evidence for me to draw conclusions as to whether the impact would be a positive or negative one on the native title party, in relation to this section of the Act.

Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

Evidence provided

1. The Government party contends there is no evidence to suggest the grant of the proposed lease would affect the freedom of access of the native title party and the Iman People generally.

2. The grantee party states it is unaware of the native title party’s current access to Lot 43 on Crown Plan AB 222 and Horse Creek. It contends that access to the proposed lease, and Lot 43 on Crown Plan AB222 in particular, will be problematic due to the health and safety concerns associated with open-cut mining (see [47] above).

Consideration

1. Due to the nature of open cut mining, there is no doubt that access to any part of the proposed lease, including the subject area, will be problematic and restricted.  However, I have not been presented with any evidence that the native title party do access the area to carry out rites and ceremonies.  As noted earlier in this decision, the area within the proposed lease that may be subject to such native title rights and interests is approximately 1.22 square kilometres, in the context of the entire claim area which covers approximately 14,024 square kilometres.  In the absence of any such evidence, I cannot conclude that such activities in this area will be interfered with.

Section 39(1)(a)(v) – effect on areas or sites of particular significance and s 39(3) – laws protecting sites of significance not affected

Evidence provided

1. The Government party states it is unaware of any sites of particular significance within the proposed lease that would be affected by the grant of the proposed lease. According to the search results issued through the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register, the Government party did not identify any Aboriginal cultural heritage sites within the proposed lease. The Government party contends that any sites of particular significance would not be likely to be interfered with due to the operation of the MRA, the EPA and the ACHA.

2. The grantee party states it is unaware of any areas of particular significance within Lot 43 on Crown Plan AB222 and Horse Creek. While noting the anticipated receipt of search results from the Aboriginal Cultural Heritage Register, it states it is unaware of any cultural heritage within the proposed lease.  It also states that the native title party did not indicate any areas of particular significance. This appears to be supported by the minutes of meetings annexed to Mr Roe’ affidavit, and the uncontested proposition that there was no response from the native title party to the grantee party’s notice of intention to enter into a cultural heritage management plan (see [57] below). 

3. The grantee party has also provided the following documents in relation to cultural heritage negotiations, which may shed some light on s 39(1)(a)(v):

   (a)The Iman Cultural Heritage Report and Recommendation (Annexure PI-7 to Mr Isles’ affidavit). It details that a preliminary site investigation of the area of EPC650, and the camping reserve, occurred over 20-21 March 2008. On 1 and 2 April 2008, the Iman Cultural Heritage Officers, Ms Barnes and Mr Bundi, and ‘Ian’ from NEC attended Elimatta Station and the Auger area within EPC650 to identify artefacts around drill hole sites. On 1 April 2008, various artefacts were found, recorded and relocated to another place outside the 50 metre perimeter required for each drill hole. No artefacts were found on 2 April 2008, though it was noted that artefacts may be discovered later. The report was forwarded to NEC and other Iman Cultural Heritage Officers prior to planning a Cultural Heritage Management Plan (‘CHMP’).

   (b)A letter dated 14 April 2008 from Ms Barnes, a member of the native title party, to Mr Roche of NEC (Annexure PI-8 to Mr Isles’ affidavit). Ms Barnes expressed concern on behalf of the Iman People regarding cultural heritage sites and artefacts being impacted upon by the development activities and she indicated a willingness to develop a CHMP and to undertake surveys to protect significant objects prior to proposed activity.

   (c)Elimatta Cultural Heritage Notes (Annexure PI-9 to Mr Isles’ affidavit) written in October 2006, which recorded initial observations in relation to EPC650 during 2005-2006.

4. The grantee party (at 45 of its contentions and 15-16 of Mr Roe’s affidavit) explains that it issued a notice on 14 March 2013, in relation to s 91 of the ACHA, indicating its intention to develop a CHMP. The notice specified that any interest holder wishing to take part in developing the CHMP must notify the grantee party within the 30 day notification period (being 20 March to 19 April 2013 as specified on the notice, and pursuant to s 94(2) of the ACHA). The grantee party did not receive any responses within the notification period.

5. I note in the minutes of the meeting held on 9 September 2010 (Annexure 1 of Mr Roe’s affidavit),  the following was recorded:

   There is a possible burial site in the area. Damian Roe is to investigate with the Cultural Heritage Coordination unit the location of this burial site. The burial is reported to have taken place in November 2009.

Further information regarding whether this burial site exists and where it is located has not been provided in other evidence or any contentions, and as such, it cannot form part of my assessment.

Consideration

1. Section 39(1)(a)(v) focuses on area or sites of 'particular significance'. For an area or site to be of particular significance, the site must be known, it must be able to be located and the nature of its significance must be explained (see Cheinmora at 34). The term ‘sites of particular significance’ was explained by Carr J at page 34-45 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...If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word ‘particular’ out. 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.

2. The Government party acknowledges that the ACHA covers all cultural heritage, regardless of whether a site is registered or not.

3. An area or site can only be characterised as being of ‘particular significance’ if it is identified by a native title party, its significance explained, and the person identifying the area or site has the necessary authority to speak about the traditions of the claim group (Little at, for example, [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 a native title party.  Possible exceptions to this are where there is direct and compelling evidence from government databases, previous cultural heritage studies or previous direct evidence from a qualified member of the claim group.

4. 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 in this matter.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party

Evidence provided

1. The Government party observes that the native title party does not object to the grant of the proposed lease.

2. The grantee party is aware that the native title party expressed interest in having ownership of the land after the mining activities had been completed. On page 9 of Annexure 1 to Mr Roe’s affidavit (the minutes of the meeting between NEC and the native title party on 9 September 2010), the following was recorded:

   Madonna [Madonna Barnes, a member of the native title party] asked whether NEC would be buying the land that would be the subject of the mining leases. Mark Turner [Chief Executive of NEC] indicated that it would be necessary to buy all those areas. Madonna asked how much land would the company give to the Iman People when the mine had been completed. Mark indicated that the mining lease was yet to be approved and they had not thought about buying the land yet as they were focussing on trying to get approval of the mine.

3. I also note that during the meeting on 10 August 2011 (as outlined at page 5 of Annexure 2 to Mr Roe’s affidavit), Ms Fesl of the native title party queried whether the land (ie Lot 43 on Crown Plan AB222) could be allocated to the Iman people and she received no positive response.

4. Beyond that, the grantee party notes it is a matter for the native title party to express their opinions in respect of the management, use or control of the relevant land, being Lot 43 on Crown Plan AB 222 and Horse Creek. The grantee party regards any wishes, opinions or proposals as being confined to issues surrounding the terms of the agreement, and that they did not amount to an objection to the grant of the proposed lease itself.

5. It is notable that another opinion regarding the management, use or control of the land was raised by Ms Fesl during the meeting on 10 August 2011, where she spoke of concern about the inability of growth after large-scale mining and being left with dangerous deep holes filled with water (as outlined at page 8-9 of Annexure 2 of Mr Roe’s affidavit), and as noted at [49] above.

Consideration

1. Apart from the information contained in minutes of meetings, as reflected by the grantee party, there is no evidence from the native title party that would materially assist the Tribunal in evaluating this sub-section of the Act, and concluding that any mining activities in the relevant area would be likely to affect any areas or sites of particular significance to the native title party.  In addition, I broadly note that it appears, from the available information, the native title party did not object to the doing of the act, but rather parties were unable to reach agreement on terms related to the doing of the act.

Section 39(1)(c) – economic or other significance

1. The Tribunal is required to evaluate the impact of the proposed lease and is not required to inquire generally about the general importance of mining to the economy, whether localised or national (see Adani at [99], referring to Drake Coal at [102]).

Evidence provided

1. The Government party contentions (at 6.6) and the grantee party contentions (at 50) state that the grant of the proposed lease would provide economic benefit to the State of Queensland and local communities through employment opportunities, infrastructure upgrades, improved services, royalties and economic stimulus to local towns and businesses within the area of the proposed lease.

2. The grantee party expects a positive impact will occur for: local industries associated with mining due to the services and equipment required; the State of Queensland due to the associated royalties and payroll taxes; and the Federal Government through corporate and mineral resources rent, the carbon tax and the goods and services tax. The grantee party also refers to paragraph 27 of Mr Isles’ affidavit, where he indicates the project will support a workforce of approximately 600 personnel during the construction phase, and 300 personnel during the mine phase. The grantee party refers to Appendix Z, the Economic Impact Assessment, of the Environmental Impact Statement (prepared in 2012), which indicates the likely economic benefits from the project are as follows:

   (a)$1.92 billion  in net benefits (in net present value terms);

   (b)The construction phase of the project will involve approximately $725 million being contributed to Gross State Product (‘GSP’) and 500 personnel being supported;

   (c)The operational phase of the project will involve annual payment of approximately $564 million being contributed to GSP (42 per cent of which will be generated in the region) and a workforce of approximately 300 personnel being supported.

The Executive Summary and the Project Description of the Environmental Impact Statement were also provided, containing details of the economic status of the project.

1. The grantee party contends the economic importance of the project is exemplified by the following:

(a)the Coordinator-General declaring it a ‘Project of Regional Significance’ for the purpose of s 25(1) of the Water Resources (Great Artesian Basic) Plan 2006 which deems it permissible for an application to be made for water from the unallocated State reserve. The declaration allows the grantee party to take water for the operation of the mine; and

(b)the Project will ‘contribute significantly’ to meeting the objectives of the regional development plans for the Western Downs region by generating income and employment (according to page 255 of Section 3, the Project Description of the Environmental Impact Statement).

Consideration

1. Given the evidence outlined above in relation to this sub-section, I find the grant of the proposed lease is likely to facilitate the commencement of a major mining project, including extraction, processing and infrastructure, that will be of economic significance to Queensland and Australia.

Section 39(1)(e) – the public interest

Evidence provided

1. The Government party contends that the grant of the proposed lease accords with public interest, citing Carpentaria at [51], which points to exploration permits being of central significance to a healthy and feasible mining industry, and Drake Coal at [108]-[109] which reads as follows:

   [108] Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income, and creates jobs and wealth for the Australian economy. Reference need only be made to the following observations of R D Nicholson J in Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 at 215:

   “Where there is evidence the proposed act will have the effect of contributing to on-going exploration essential to the health of the mining industry and the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry.”

   [109] The Tribunal accepts that the mining industry plays a pivotal role in maintaining Australia’s economic strength. The export income generated from mining is critical to the maintenance of Australia’s standard of living and its general economic health. However, despite the importance of the mining industry to local and State economies as well as the national economy, this does not mean that the other criteria in s. 39 are in any way subordinated to this consideration. What is highlighted in the above quote of R D Nicholson is that it is permissible to have regard to the importance of a vibrant mining industry. What neither His Honour, nor numerous Tribunal determinations have ever said, is that this is the only consideration that needs to be factored in when making a s.38 determination, or that it is of greater significance to the other factors. Each of the criteria have to weighed independently having regard to the nature of the evidence presented.

.

While I note that Carpentaria referred to exploration leases, I accept the general principle can be applied to mining leases, as in the present matter.

1. Similarly, the grantee party raises the Tribunal’s acceptance in Adani of the principle outlined in DrakeCoal that it is 'permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income and creates jobs and wealth for the Australian economy' (see DrakeCoal at [108]). The grantee party also refers to the factors outlined in relation to sub-section 39(1)(c) above and contends that the grant of the proposed lease would contribute to the development of the State and local regional economy, and to an increased competitive advantage for Australia in the coal and energy export industry (see paragraph 27 of Mr Isles’ affidavit).

Consideration

1. The grantee party has highlighted the benefits that the grant of these tenements will create for the national, State and regional economies.  In the absence of any evidence to the contrary, I conclude that the public interest will be served by the grant of the proposed lease.

Section 39(1)(f) – any other relevant matters

1. No party has drawn the Tribunal’s attention to any other matter and accordingly, I have not taken any other matter into account in making the determination.

Section 39(2) – existing non-native title rights and interests

1. In making an assessment under s 39(1)(a) of the Act, the Tribunal is also required to take into account existing non-native title rights and interests in the relevant area (see s 38(2)), as well as the existing use of the land by other persons (see s 39(2)).

2. The Government party reiterates that the majority of the proposed lease is subject to freehold and leasehold interests and makes no further observations.

3. As noted earlier in this decision (under s 39(1)(a)), I have had regard to the existing non-native title rights and interests which may have already had an adverse impact on the enjoyment of native title rights and interests.

Section 39(4) – Issues relevant to the inquiry on which the negotiation parties agree

1. None of the parties have indicated that there are any relevant agreements to be taken into account, and as such, there are no issues to address under s 39(4).

Proposed conditions

1. The grantee party seeks a determination that the future act may be done, subject to a condition that the grantee party comply with the requirements of the ACHA and takes all steps required to ensure it meets the cultural heritage duty of care. It outlines that some cultural heritage artefacts were noted in the cultural heritage survey of 2008 (as outlined at Annexure 7 to Mr Isles’ affidavit).

2. Whilst I acknowledge the grantee party’s willingness to accommodate its obligations under cultural heritage legislation, I do not think it is necessary to consider the imposition of that condition, as its obligations under the ACHA are mandatory. The conditions which will be imposed on grant by the Government party are outlined at [28]-[30] above, and given the available evidence in this matter, I do not intend to impose additional conditions.

Determination

1. The determination of the Tribunal is that the act, being the grant of Mining Lease 50254 to Taroom Coal Pty Ltd, may be done.

Helen Shurven
Member
23 August 2013

ANNEXURE A

Affidavit of Peter Thomas Isles

I, Peter Thomas Isles of c/- New Hope Group, 3/22 Magnolia Drive, Brookwater QLD, say on oath:

1. I am the Project Director (NEC Projects) for New Hope Group. I have been in this role since October 2011

2. The Applicant if a wholly owned subsidiary of Northern Energy Corporation Ltd (NEC) which is a member of the New Hope Group.

3. NEC conducts the business activities associate with the Elimatta Project (the Project) on the Applicant’s behalf. It is through NEC that all of the negotiations with the Native Title Party in respect to the grant of MLA50254 have been conducted.

4. Throughout this affidavit, where I refer to NEC having taken a particular step or done a particular thing, I am referring to the Applicant having also taken that step.

5. I make this affidavit in support of the Applicant’s application for a future act determination.

Background

1. Mt previous experience includes:

   a)Extensive management of open pit coal mining operations in Queensland;

   b)Representation with a variety of industry Associations; and

   c)Representations and dealings on behalf of my employers to Government Agencies.

1. In my current role as project Director (NEC Projects) with the New Hope Group, I oversee the Elimatta Project (the Project). I have overall supervision of this Project including directing all approvals processes as required. I work under the instruction of the Senior Management of the New Hope Group who are, in turn, responsible to the Board of Directors of new Hope Corporation Ltd ACN 010 653 844.

2. NEC commenced its negotiations with the Native Title Party for the grant of MLA50254 in or around September 2010. At this time, Keith Barker (then the Chief Executive Officer) and Mark Turner (then the Chief Operating Officer) were leading the negotiations on behalf of NEC.

3. I became involved in the negotiations with the Native Title Party on behalf of NEC following the takeover of NEC by the New Hope Group in or around August 2011, at which point Mr Barker and Mr Turner had left NEC.

10.The first meeting I attended with the Native Title Party was the meeting held on 10 August 2011 at Brisbane.

11.I subsequently attended a meeting with the Native Title Party held on 28 September 2011 at Brisbane.

12.I was unable to attend the meeting with the Native Title Party held on 21 June 2011 at Brisbane. I instructed Damien Roe of HopgoodGanim Lawyers to attend as representative of NEC.

The Project

13.The Project involves the development of an open-cut thermal coal mine southwest of Taroom in Sothern [sic] Queensland. The Project covers approximately 4,460 hectares in total and includes mining lease applications 50254, 50271, 50270 and a long rail and services corridor.

14.The Project has an expected life of approximately 40 years including construction, operation, decommissioning and rehabilitation.

15.An assessment of the Project and its impacts is contained in the Environmental Impact Statement (EIS) which was prepared for the Project in 2012. The EIS was prepared by AustralAsian Resource Consultants (AARC). I instructed AARC throughout the preparation of the EIS and oversaw the final preparation and submission of the EIS.

16.A supplementary EIS is proposed to be submitted for the Project in early-mid 2014. I will be overseeing the preparation of this supplementary EIS.

17.The full EIS can be accessed at I refer to and rely upon the EIS in its entirety in support of the future act determination application. However because it is a voluminous document, attached to this affidavit are hard copies of the following key sections of the EIS only:

a)Executive Summary marked as “PI-1”;

b)Section 3, Project Description marked as “PI-2”; and

c)Appendix Z, Economic Impact Assessment marked as “PI-3”.

Major elements of the Project

18.The major elements of the Project include the following:

a)open-cut mining operations;

b)construction and operation of a Coal Handling and Processing Plant (CHPP) and associated mine infrastructure, including tailings storages, rail load-out facility and an accommodation village;

c)water management dams and the permanent diversion of the section of Horse Creek;

d)a transport and services corridor for the transportation of Run-of-Mine (ROM) coal from the pit to the CHPP;

e)development of a common user Rail and Services Corridor to service the Project which will extend approximately 36 km;

f)rail loading at the Project site and transportation of product coal to the Wiggins Island Coal Export Terminal in Gladstone; and

g)progressive rehabilitation, as well as ultimate rehabilitation, of entire the Project area once the site has been decommissioned.

Environmental Approval

19.NEC has applied for an environmental authority for the Project. NEC prepared the EIS referred to above in response to the assessment by the Department of Environment and Heritage Protection (EHP) that the Project constituted a Non-code Compliant Level 1 mining project. I, on behalf of NEC, am continuing to work with EHP on the environmental approvals for the Project.

20.The Project was referred to the Commonwealth Government for consideration of the Project’s likelihood to cause significant impact on matters of national environmental significance. It was subsequently determined that the Project was not a controlled action and therefore would not require assessment by the Commonwealth. A copy of this notification is attached and marked “PI-4”.

Economic significance

21.The economic significance of the Project is detailed in the ‘Economic Impact Assessment’ which was prepared as part of the EIS. A copy of the Economic Impact Assessment is attached and marked “PI-3”.

22.In summary, as at the date of preparation of the Economic Impact Statement, it was expected the Project would deliver the following economic benefits:

a)The delivery of $1.92 billion in net benefits (in net present value terms);

b)During the construction phase of the Project, contribute an estimates $725 million to Gross State Product (GSP);

c)During the operational phase of the Project, contribute an estimated annual $564 million to GSP, 42% of which will be generated in the region;

d)Increase economic activity, population and consumption demand in the region;

e)Increase regional incomes by $150million during the construction phase and by $230 million during the operational phase,

(at pages 254 and 255 at “PI-3”).

23.As I have outlined above at paragraph 16, the intention of the Applicant is to prepare and submit a supplementary EIS in early-mid 2014. An updates prediction as to the economic impact of the Project will be developed and provided as part of that process.

24.The Project also meets the objectives of the regional development plans that have been developed for the Western Downs to build the region’s economic strength and enhance business opportunities. The proposed project will contribute significantly to these objectives by generating employment and income in the region (at page 255 at “PI-3”).

Project of regional significance

25.The Project has been declared a project of ‘regional significance’ by the Coordinator-General. A copy of this notification is attached and marked “PI-5”.

26.An initial advice statement was prepared and submitted to the Coordinator-General in support of the application that the Project be declared a project of ‘regional significance’ (Statement). A copy of the Statement is attached and marked “PI-6”.

27.This Statement sets out the key reasons supporting the making of a declaration that the Project is one of ‘regional significance’. Some of these reasons are:

a)The declaration is required so that the Applicant is able to take water that is required for the operation of the mine from the Walloon Coal Measures under the State Reserve;

b)The project and the rail and services corridor are strategically significant in the region;

c)The Project will support a workforce of approximately 500 personnel during construction and 300 personnel during mine operations and preference will be given to recruiting locally; and

d)The Project will produce coal for the export markets and will be regionally significant in providing energy security for Queensland and more broadly Australia;

e)The Project will bring positive flow-on effects to the local and regional economy and community including:

(1)Local industries associated with mining will be positively impacted through the required provision of services and equipment;

(2)Broader economic benefits will include income to the state of Queensland through royalties and payroll taxes; and

(3)Income to the Federal Government through corporate, mineral resources rent, carbon and goods and services taxes,

(at 318 & 319 at “PI-6”).

Impact on Native Title

28.To the best of my knowledge, there are no aboriginal communities situated on or in close proximity to the area of MLA50254.

29.In terms of access by the Native Title Party to the area of MLA50254, and more particularly, the camping reserve, it is unlikely that the Native Title Party would be able to access those areas during the Project’s lifetime. This is because the area of MLA50254 is the proposed site of the open cut mine. The reserve area is currently accessed via a public road which transects the mine area and which will be closed for the duration of the Project. An alternative route outside of the mine area will be provided instead – this alternative does not intersect the reserve area. It is likely that access to the reserve area (which forms part of the mine excavation) would therefore constitute too great a risk to health and safety. I recall that the location of key infrastructure for the Project such as pits, the rail corridor and wash plant were discussed by reference to maps of the Project at a meeting with the Native Title Party. I understand and verily believe that the minutes of the meetings with the Native Title Party are annexed to the affidavit of Damian Roe sworn 12 July 2013.

30.The New Hope Group, including NEC, is ‘an equal opportunity employer’ and encourages Indigenous people to apply for employment and/or contracts in connection with all of its projects. NEC is willing to use its best endeavours to maximise the employment opportunities available to members of the Native Title Party on the Project, in accordance with its existing employment strategies, protocols and policies.

Cultural heritage

31.I am also aware that two cultural heritage surveys were carried out for exploratory activities that were undertaken in 2008 in the area of MLA50254. This was before my involvement with exploration activities for the project.

32.I have taken the following steps to locate the records of these surveys:

33.I have made enquiries with Keith Barker and Brian Roache, both former employees of NEC; and

34.I have caused to be undertaken comprehensive searches of the NEC electronic files.

35.As a result of these enquiries searches, I have located the following documents:

a)“Iman Cultural Heritage Report and Recommendations” attached and marked “PI-7”;

b)Letter from Madonna Barnes to Brian Roache dated 14 April 2008, attached and marked “PI-8”;

c)Elimatte Cultural Heritage notes, which I believe have been authored by Michael Vickers, a former geologist in the employ of NEC, attached and marked “PI-9”.

Despite my best efforts, I have been unable to locate any other records of these cultural heritage surveys.

36.NEC is currently taking the necessary steps under Part 7 of the Aboriginal Cultural Heritage Act 2003 (Qld) to ensure that it meets the Aboriginal cultural heritage duty of care within the Project area.

37.All the fact and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my affidavit.

Sworn by the deponent at Brisbane in Queensland on 15 July 2013 before [Courtney Smith, Solicitor].

ANNEXURE B

Affidavit of Damian John Roe

I, Damian John Roe of c/- HopgoodGanim Lawyers, Level 8, Waterfront Place, 1 Eagle Street Brisbane QLD, Solicitor, say on oath:

1. I am a legal practitioner in the Supreme Court of New South Wales and High Court of Australia.

2. I currently hold a practicing certificate as a solicitor pursuant to the provisions of the Legal Profession Act 2007.

3. I am a solicitor (Senior Associate) in the employ of HopgoodGanim, the solicitors for the Applicant. I am authorised to make this affidavit.

Background

1. I make this affidavit in support of the Applicant’s application for a future act determination for the grant of LMA50254 (the Application).

2. I acted for the Applicant in its negotiations with the Native Title Party from 2010 to 2012 regarding the grant of MLA50254. Another solicitor of HopgoodGanim, Courtney Smith (Associate), acts for the Applicant in its Application. I am acting for the Applicant currently in relation to other aspects of the Elimatta Project (the Project), in particular, I am currently working on cultural heritage management issues and other environmental approvals required for the Project.

Negotiations with the Native Title Party

1. The negotiations with the Native Title Party regarding the grant of MLA50254 commenced in around September 2010. Over the course of the negotiations a total of four meetings were held. I attended all of these meetings on behalf of the Applicant. The dates of those meetings were:

   a)9 September 2010;

   b)10 August 2011;

   c)28 September 2011; and

   d)21 June 2012.

2. Attached and marked as annexure to this affidavit (“DJR-1”, “DJR-2”, “DJR-3” and “DJR-5” respectively) are the minutes of those meetings. Those minutes are an accurate and contemporaneous record of the meetings and accord with my recollection of the meetings.

3. During those meetings and more broadly over the course of the negotiations, the Applicant sought to discuss and understand:

   a)The way in which the enjoyment of the Native Title Party’s native title rights and interests would be affected by the grant of MLA50254;

   b)The Native Title Party’s way of life, cultural and traditions;

   c)The Native Title Party’s access to the area of MLA50254 to carry out rites, ceremonies or other activities of cultural significance; and

   d)Any areas within MLA 50254 of particular significance.

4. The Native Title Party did not provide the Applicant with any information or evidence in relation to paragraphs (c) and (d) above. The Native Title Party did provide the Applicant with some general information is relation to (a) and (b) above as reflected in the minutes of meeting.

10.One particular matter was raised by Mr Waddy on 21 June 2012 when he expressed a desire to camp on the reserve as he thought that his father may have camped there at some point (at page 39 at “DRJ-5”). Mr Waddy said he had ‘some strong feelings about it’.

11.The Native Title Party did not put forward any proposals, opinions or wishes regarding the management, use or control of the proposed area of MLA50254 during the negotiations other than a desire to have ownership of the land after the mining activities had been completed (at page at “DRJ-1”). Rather, the maters articulated by the Native Title Party went to the content of the agreement that was being negotiated for the grant of MLA50254.

12.In summary, the Native Title Party expressed a wish to have the following elements incorporated in an agreement for the grant of MLA50254:

a)Employment strategy with an implantation and auditing process and workforce targets;

b)Mining and non-mining related employment training;

c)Preferential tendering for Project contracts;

d)Business planning assistance in relation to establishing a capital fund of obtaining finance;

e)Funding for secondary/tertiary/post-graduate scholarships;

f)Returning the land the subject of MLA50254 to the Native Title Party at the end of the project;

g)Compensation in the form of a royalty and/ or cash payment or equity in NEC.

13.These matters are set out in a list of the Native Title Party’s requests compiled as part of the action items following the meeting on 28 September 2011 (at page 31 at “DJR-3”). The solicitor for the Native Title Party confirmed that the Applicant should proceed on the basis the list was comprehensive in an email dated 1 November 2011 which is attached and marked “DJR-4”. The remaining matters are found in the proposal made by the Native Title Party at the meeting on 21 June 2012 (at page 42 at “DJR-5”).

Status of cultural heritage

14.The Applicant has taken steps to comply with its obligations pursuant to the Aboriginal Cultural Heritage Act 2003 (QLD) (ACHA).

15.On 14 March 2013, the Applicant issued a notice pursuant to section 91 of the ACHA of its intentions to develop a cultural heritage management plan for the Project (the Notice). Attached and marked “DJR-6” is a copy of this notice.

16.The notice day was set as 20 March 2013 and accordingly, the end of the 30 day period in which parties could elect to be endorsed pursuant to the ACHA was 19 April 2013. The Notice was sent to the solicitors on the record for the registered native title claimants for the Iman People #2 Native Title Claim. The Applicant did not receive any responses within the notice period from parties electing to be endorsed.

17.All the facts and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appears on the face of this my affidavit.

Sworn by the deponent at Brisbane in Queensland on 10^th July 2013 before [witness].