Terry David Keyse v Kyburra Munda Yalga Aboriginal Corporation RNTBC
[2019] NNTTA 49
•11 July 2019
NATIONAL NATIVE TITLE TRIBUNAL
Terry David Keyse and Another v Kyburra Munda Yalga Aboriginal Corporation RNTBC [2019] NNTTA 49 (11 July 2019)
Application No: | QF2019/0001, QF2019/0002 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Kyburra Munda Yalga Aboriginal Corporation RNTBC (QCD2014/014)
(native title party)
- and -
Terry David Keyse
(grantee party)
- and -
State of Queensland
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member JR McNamara |
Place: | Brisbane |
Date: | 11 July 2019 |
Catchwords: | Native title – future act – proposed grant of mining claims – prescribed body corporate – native title decision – cultural heritage duty of care - s 39 criteria considered – the act may be done |
Legislation: | Aboriginal Cultural Heritage Act 2003 (QLD) ss 8, 9, 10, 23, 28 |
Cases: | Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), [2006] NNTTA 3 (‘Gugu Badhun’) Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Watson v Backreef Oil’) |
| Representative of the native title party: | Andrew Morrell, Kyburra Munda Yalga Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Paul Crossland |
| Representatives of the Government party: | Margot Clarkson, Crown Law Dale Leathbridge, Department of Natural Resources, Mines and Energy |
REASONS FOR DETERMINATION
Background
The State of Queensland (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant Mining Claim 10034 and Mining Claim 10035 to Terry David Keyse (‘the grantee party’). The notification date specified in the notice was 6 August 2015.
The notice states that the proposed mining claims would authorise the grantee party to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld) (‘MRA’) for a term not exceeding ten (10) years with the possibility of renewal for a further term not exceeding ten (10) years. The notice shows MC10034 to be over an area of 9056 square metres, located approximately 4.6km North North West of Kyburra, and MC10035 to be over an area of 8741 square metres, located approximately 5km North North West of Kyburra. Both mining claims are located in the Whitsunday Regional Council local government area.
Mining claims are regulated by Chapter 3 of the MRA. The holder of a mining claim may, pursuant to s 50 of the MRA, prospect for any mineral to which the mining claim applies and hand mine in accordance with the conditions of the mining claim. Limited use of machinery is permitted for the purposes of prospecting or hand mining, and moderate use of explosives may be permitted (s 50(1)(b) and (c)). A mining claim may be granted in respect of any specified mineral other than coal (s 52).
Generally, the prescribed area of land over which a mining claim may be granted is limited to one hectare (s 53(3)), and a person cannot at any time be holder of or have an interest, direct or indirect, in more than two mining claims (s 55(1)).
Both MC10034 and MC10035 fall wholly within the determined land of the Kyburra Munda Yalga Aboriginal Corporation RNTBC (‘the native title party’). The Federal Court determined the non-exclusive native title rights and interests of the native title party in and around the relevant area on 11 July 2014.
Tribunal proceedings
On 7 and 8 January 2019, a date more than six months after the notification day, the grantee party lodged future act determination applications in relation to the mining claims (see ss 35 and 75 of the Act). The applications were accepted and I was appointed as Member for the purposes of the inquiry.
From mid-January 2019 efforts were made by Tribunal staff to convene a preliminary conference of the parties to settle directions for the conduct of the inquiry. There was some delay in making contact with the native title party. A number of conversations occurred with the former legal representative of the native title party, but ultimately they did not hold instructions to act. A search of the website of the Office of the Registrar of Aboriginal Corporations (‘ORIC’) informed the Tribunal that the ‘Contact person/secretary’ was Mr Andrew Morrell. Mr Morrell is also a Director of the native title party.
Mr Morrell was successfully contacted by telephone on 4 March 2019. Due to work commitments Mr Morrell advised that he was unavailable to participate in the preliminary conference the following day. Mr Morrell provided a contact email address.
It was decided to proceed with the preliminary conference in the absence of Mr Morrell on the basis that no decision against the interest of the native title party would be made without further engagement. The Tribunal wrote to Mr Morrell by email informing him that the conference proceeded and was adjourned in order to enable Mr Morrell to participate and sought his availability. Attached to the email were copies of the s 35 application and annexures, correspondence explaining the purpose of the preliminary conference, and draft directions for the conduct of the inquiry.
Subsequently, a Senior Officer of the Tribunal spoke with Mr Morrell regarding the timing of the adjourned preliminary conference. Mr Morrell informed her that the material received had been forwarded by him to the other Directors for their consideration, and that he would consult with the Directors regarding their attitude towards the grant of the tenements.
On 13 March 2019, Mr Morrell sent a letter to the Tribunal by email and asked if the Tribunal could forward it ‘to all concerned in this matter’. The letter, signed by Mr Morrell ‘on behalf of the Board’, was forwarded to the parties on 14 March 2019. The key content of the letter is as follows:
The Board of Native title party Kyburra Munda Yalga Aboriginal Corporation RNTBC (ICN 7581) would like to let it be known that there is no objection from the families represented on the board to the issuing of grant to Grantee party Terry David Keyes, represented by Paul Crossland to carry out activities as stated in the application on Tenements MC10034, MC10035.
The issuing of the grant must include provision for the Queensland Aboriginal Cultural Heritage Act and sections within to be enacted under the guidelines as stated within the act, and that if any Aboriginal Cultural Heritage is to be found during activities, Kyburra Munda Yalga Aboriginal Corporation RNTBC (ICN 7581) is to be notified and appropriate measures under the act will need to be undertaken.
The adjourned preliminary conference was convened on 2 April 2019. Mr Morrell, Secretary, Kyburra Munda Yalga Aboriginal corporation RNTBC attended by telephone. Directions were made, with Direction 1 requiring the grantee party and the Government party to provide documents and contentions on or before 23 April 2019. The grantee party provided their material on 18 April and the Government party on 23 April 2019. Exhibit 10 to the grantee party material is a document marked ‘Ancillary Agreement Draft 1 – 29 August 2017’ with the cover page titled:
Mining Claim 10034 and 10035
Ancillary Agreement
Between
Kyburra Munda Yalga Aboriginal Corporation RNTBC
(“The Native Title Party”)
And
Terry David Keyse(“The Miner”)
Direction 2 provided that a directions hearing would be held on 24 April 2019 at 5pm, prior to Direction 3 requiring the native title party to provide contentions and evidence.
On 24 April 2019 at the directions hearing the matter was further discussed between the parties, and Mr Morrell.
Standing of the Secretary and board members
In compliance with Direction 3, Mr Morrell provided ‘Submission by Kyburra Munda Yalga Aboriginal Corporation RNTBC’. In the second paragraph it says: ‘The following submission is written by Andrew Morrell and Peta Ross in conjunction with the current board members of Kyburra Munda Yalga Aboriginal Corporation (KMYAC) on behalf of their respective families’. The submission goes on to refer to the relevant provisions of s 39 ‘Criteria for making arbitral body determinations’. I will refer specifically to the submissions later in these reasons.
For the purposes of the right to negotiate procedure, and on the facts in this matter, the native title party is the registered native title body corporate in relation to any of the land or waters that will be affected by the act, that is, Kyburra Munda Yalga Aboriginal Corporation RNTBC (s 29(2)).
The Corporation extract viewed on the ORIC website informs me that the RNTBC was registered on 5 July 2011, its place of business is listed, as are the names of Directors and the contact person/Secretary, Andrew Morrell. Member’s names and addresses are also listed. Under the heading ‘Documents lodged’ it states: 21/12/2018 Notification of Termination of Special Administration – Cover letter. The letter, dated 20 December 2019 relevantly says:
I write to confirm that the special administration will end at 11:59 pm on Monday, 31 December 2018 and after this time the control of the corporation’s affairs will rest with the directors who have been appointed by the special administrator using his powers under section 499-5(3)(d) of the CATSI Act. The persons who have been appointed as directors of the corporation by the special administrator are:
Ms Tracey Solomon
Mr Andrew Morrell
Ms Peta Lynn Ross
Ms Toni Pryor
Ms Carol Prior
Mr Justine Power.
These directors will hold office until the annual general meeting for the year ended 30 June 2021 is held. At this AGM the corporation will implement the rotational system as stated at rule 6.8 of the corporation’s rule book.
Also accessible on the ORIC website is the Kyburra Munda Yalga Aboriginal Corporation RNTBC Consolidated Rule Book (registered 21 December 2018). The Rule Book, amongst other things, sets out the processes required for ‘native title decisions’. Relevantly, the Rule Book provides that in performing a function or exercising a power the Corporation shall act in accordance with the consent and direction of affected Juru common law holders (traditional owners). Further, ‘native title decisions’ can only be made after the Corporation has consulted with and obtained the consent of affected Juru common law holders (traditional owners) in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) and section 251A[1] of the Native Title Act. The consent must be given by the affected Juru common law holders (traditional owners) in accordance with the process of decision making agreed to, or adopted, by them for the proposed native title decision, or for decisions of the same kind as that decision.
[1] Section 251A NTA concerns authorising the making of Indigenous Land Use Agreements and authorising the making of native title determination applications or compensation applications and is not pertinent to the decision making of the Corporation being considered.
‘Native title decision’ is defined in the PBC Regulations to mean a decision to surrender native title rights and interests in relation to land or waters; or, to do, or agree to, any other act that would affect the native title rights or interests of the common law holders. Importantly, Regulation 8 and 8A, would require the Corporation for a native title decision to consult with, and obtain the consent of, the common law holders in accordance with that regulation, unless the Corporation’s constitution provides for a different consultation process to which the common law holders have consented. Evidence in the form of a certified document confirming consultation and consent is necessary (Regulation 9).
In this matter Mr Morrell does not assert that a native title decision has been made. Accordingly, the material received from Mr Morrell concerning the future act determination application including the 14 March 2019 letter and material provided in accordance with Direction 3 cannot be considered to be the contentions of the native title party. Despite the fact that the Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence (s 109 NTA), this would not displace the unambiguous requirements concerning native title decisions set out in the Regulations. In the second paragraph of the document provided in response to Direction 3 it says ‘The following submission is written by Andrew Morrell and Peta Ross in conjunction with the current board members of Kyburra Munda Yalga Aboriginal Corporation (KMYAC) on behalf of their respective families’.In the final paragraph of the document provided in response to Direction 3 it says:
Currently there are two Juru apical ancestor families which are not represented by the Board of Directors. The two families have however been provided opportunity to participate in negotiation processes for the ancillary agreement prior to the establishment of the Current Board of Directors.
Although not explained in the material why the Corporation has not made a native title decision, there is no suggestion that the common law holders, or some of them, hold a view different to that expressed in the submission. As is apparent from [17] above, the Corporation emerged from special administration on 31 December 2018. The paragraph quoted immediately above suggests that families not currently represented on the Board, were ‘provided the opportunity to participate’ in negotiations ‘prior to the establishment of the Current Board of Directors’, presumably prior to emerging from special administration.
In the circumstances, and in the absence of any other advice or submissions provided by the common law holders, I have decided to take into account the content of the material provided in accordance with Direction 3, on the understanding that it does not constitute a native title decision.
Conditions
Direction 4 required any party who proposed that the determination of the Tribunal be that the acts may be done subject to conditions to be complied with, advise the Tribunal of this, along with reasoning, on or before 1 May 2019.
In the letter dated 13 March 2019, provided prior to the making of directions, Mr Morell requested the grant include provision for the Aboriginal Cultural Heritage Act (Qld) 2003 (the ACHA) and guidelines, drawing particular attention to the process for cultural heritage finds. The ‘Submission by Kyburra Munda Yalga Aboriginal Corporation RNTBC’ provided in response to Direction 3, also addresses access for the Juru People (native title party) to the area, and contains a request for a Cultural Heritage Management Plan (CHMP).
In its 18 April 2019 statement of contentions, the grantee party states ‘The Applicant proposes to have an agreement with the Juru People [native title party]’ which will address access the area of the mining claims and cultural heritage. As mentioned above the ‘proposed Ancillary Agreement’ was attached to the Grantee party contentions as Exhibit 10. The grantee party contentions include a request that the determination be made with the proposed ancillary agreement as a condition. In submissions of the Government party concerning the question of conditions (Direction 4) provided 1 May 2019, it opposed the proposed ancillary agreement being made a condition for the following reasons:
(a)a number of the proposed ancillary agreement terms and conditions are beyond the scope of the Minister to make conditions of the grant under the MRA;
(b)some terms and conditions of the proposed ancillary agreement are regulated under Queensland statutes and it would be redundant to make them a condition of the grant;
(c)the Government party is concerned about possible indirect inconsistency between the terms and conditions of the proposed ancillary agreement and relevant statutory schemes and the increased demands on the Government party’s compliance and enforcement resources; and
(d)failure by the grantee party to comply with a condition of a mining claim can result in cancellation of the tenement or a monetary penalty; the Government party is not able to take any corresponding action in the event of non-compliance by the native title party.
In response to the Government party contentions (concerning conditions), Mr Morrell and Mr Crossland on behalf of the grantee party, further clarified their positions regarding conditions and the proposed ancillary agreement. Mr Morrell advised the proposed ancillary agreement is intended to operate as a stand-alone contract and not as a condition on the grant. Mr Morrell clarified that the proposed ancillary agreement has been referred to as evidence of potential benefits the grant will bring to KMYAC and the Juru People (native title party). The grantee party confirmed it is not seeking the proposed ancillary agreement be included as a term of the grant and that it will be a private agreement between the Juru People (native title party) and Mr Keyse. The Government party sought confirmation that the grantee party withdrew the paragraph of its contentions requesting the proposed ancillary agreement be made a condition. In response, the grantee party stated that if the State is satisfied no other conditions should be added to the standard conditions of grant, the grantee party makes no further submission that the Tribunal should include conditions in the determination.
Accordingly, I accept that it is the position of the Government party and the grantee party that the determination sought is that the act may be done. The Government party and the grantee party do not propose a determination that the act be done subject to conditions.
To the extent it is relevant, Mr Morrell does not propose a condition relating to matters the subject of the draft ancillary agreement. In relation to heritage protection, the statement by Mr Morrell that ‘Cultural heritage guidelines need to be addressed, all be it, through duty of care’ simply confirms the operation and effect of the ACHA.
The ACHA requires that a person must exercise due diligence and reasonable precaution before undertaking an activity which may harm Aboriginal cultural heritage. Section 23(1) of the ACHA states that a person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage (the ‘cultural heritage duty of care’). Section 28 of the Act states that the Minister may by gazette notice notify guidelines (‘cultural heritage duty of care guidelines’) identifying reasonable and practicable measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. Guidelines were gazetted on 16 April 2004. A person acting in compliance with gazetted duty of care guidelines is taken to have complied with the cultural heritage duty of care.
Legislation relevant to mining claims
The grant of mining claims in Queensland is governed by the MRA and the Mineral Resources Regulation 2003 (Qld) (‘MRR’).
The general conditions for mining claims are set out in s 81 of the MRA. So far as is relevant, each mining claim is subject to the holder:
·using the land comprising the tenement bona fide for the purpose for which the mining claim was granted and in accordance with the MRA and conditions of the claim and for no other purpose;
·complying with the mandatory provisions of the small scale mining code to the extent it applies to the holder and ensuring any other person carrying out an authorised activity for the mining claim also complies;
·furnishing at such times, and in such manner as required by the mining registrar, reports, returns, documents, statements and other materials;
·maintaining the surface of the tenement in a tidy state;
·carrying out improvement restoration for the mining claim;
·conducting prospecting and mining by such method or in such manner as is provided for in, or applies in respect of, the mining claim;
·not erecting any permanent or other structure and prior to the termination of the claim for whatever cause, removing any building or structure erected and all mining equipment and plant;
·not, without the prior approval of the mining registrar, obstructing or interfering with any right of access had by any person in respect of the land;
·paying prescribed rentals and royalties, local authority rates and charges and depositing any security required by the mining registrar;
·maintaining during the term of the claim, the marking out of the land including any survey pegs;
·complying with the MRA and other mining legislation; and
·complying with such other conditions imposed by the mining registrar, including such conditions as determined by the Land Court pursuant to Chapter 3 of the MRA.
In addition, s 81(1)(o) provides that the grant of a mining claim is subject to such other conditions as may be prescribed. Regulation 8 of the MRR has the effect of prescribing the following conditions:
·that the holder must not use prohibited machinery in the area of the mining claim;
·the holder or another person acting under the authority of a mining tenement must use, if practicable, only existing roads or tracks on the land;
·the holder, or another person acting under the authority of a mining tenement must take reasonable steps to ensure no reproductive material of a declared plant is moved onto, within or from the land;
·the holder, or another person acting under the authority of a mining tenement must not allow an animal in their custody to be on the land unless the area is fenced or the animal is restrained; and
·if the mining claim is occupied land, that the holder shall not discharge a firearm on the land unless the holder has the written consent of the owner and such consent has been lodged with the mining registrar.
The environmental management of mining is regulated by the Environmental Protection Act 1994 (Qld) (‘EPA’). In contentions at [31] the State says: ‘Under the Environmental Protection Act, the grantee party will need to apply for and obtain an environmental authority approving and regulating the carrying out of activities authorised by the mining claims (if granted)’. It has not been suggested that the particular mining claims would fall within the definition of small scale mining activities in the EPA. The eligibility criteria (formerly known as codes) for mining claims includes that the mining activity is not, or will not be, carried out … in a category B environmentally sensitive area. A category B environmentally sensitive area is defined in Schedule 12, Part 1 of the Environmental Protection Regulation 2008 (QLD) and includes: ‘an area recorded in the Aboriginal Cultural Heritage Register established under the Aboriginal Cultural Heritage Act 2003, section 46 … ‘. Further, standard condition A14 prohibits the holder of a mining claim environmental authority from carrying ‘out activities within 100m of a Historical, Archaeological or Ethnographic Site.’ Note 21 under this condition, advises the holder of a mining claim:
Refer to the Aboriginal Cultural Heritage Register established under the Aboriginal Cultural Heritage Act 2003 …. . Prior to carrying out any activities on the mining tenement, the holder of the environmental authority should consult with the administering authority if a site has the potential to be designated as a historical, archaeological or ethnographic site.
The ACHA imposes a duty of care on the holder of a mining claim in relation to Aboriginal cultural heritage. Section 8 of the ACHA defines ‘Aboriginal cultural heritage’ as anything that is:
·a significant Aboriginal area in Queensland; or
·a significant Aboriginal object; or
·evidence, of archaeological or historic significance, of Aboriginal occupation of an area of Queensland.
The term ‘significant Aboriginal area’ is defined in s 9 of the ACHA to mean an area of particular significance to Aboriginal people because of either or both, Aboriginal tradition and the history, including the contemporary history, of an Aboriginal party for the area. The term ‘significant Aboriginal object’ is defined in s 10 of the ACHA in the same manner.
Subsection 23(1) of the ACHA requires a person who carries out an activity to take all reasonable and practical measures to ensure that the activity does not harm Aboriginal cultural heritage. This is referred to as the cultural heritage duty of care.
Subsection 23(2) of the ACHA provides a non-exhaustive list of matters that a Court may have regard to when determining if a person has discharged their duty of care. One of the matters listed is the extent to which the person consulted with Aboriginal parties about the carrying out of the activity, and results of the consultation (s 23(2)(c)). In addition, s 28 provides that the Minister may, by gazette notice, notify cultural heritage duty of care guidelines which identify reasonable and practical measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. Such guidelines were gazetted on 16 April 2004. The guidelines provide the holder of a mining claim with detailed information on how to properly discharge their duty of care.
These provisions were considered by the Tribunal in Gugu Badhun and the following conclusion was reached:
[37] Summing up, the above brief and non-exhaustive overview of the current state of mining, environmental and cultural heritage law impacting on relatively low impact mining activities, highlights that Queensland possess(es) a comprehensive and well integrated regime that aims to an appropriate level of environmental and cultural protection ....
[38] The material before the Tribunal demonstrates that the legislative regime cumulatively provides a protective framework which ameliorates the likely or potential effect of the future act on the native title rights and interests of the native title party.
I adopt these findings for the purpose of this inquiry.
Criteria for making arbitral body determinations
Central to the scheme by which the Tribunal makes a determination about whether the future act may be done, with or without conditions, or must not be done, are the requirements of s 39 of the Act. Subsections (1) and (2) of that section provide a list of the criteria the Tribunal must take into account when making its decision. I consider each criteria in detail later in these reasons.
The Tribunal’s task involves weighing the various criteria in s 39 by giving proper consideration to them on the basis of evidence. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. The Act does not direct that greater weight be given to some criteria over others. The Tribunal undertakes the task set by s 39 by considering ‘each of the criteria … individually’ in light of the evidence and the submissions made by each party to the inquiry in relation to that criterion, and then engages in a ‘weighing process’ before making its determination: Watson v Backreef Oil at [27]-[28] per Siopis J.
Findings on the Section 39 criteria
As has been noted, I have taken into account the material provided by Mr Morrell on the understanding it does not constitute a native title decision.
Section 39(1)(a)(i)) – effect on the enjoyment by the native title party of their registered native title rights and interests
Section 39(2) – nature and extent of existing non-native title rights and interests in relation to the land or waters concerned; and existing use of the land or waters concerned by persons other than the native title parties
Section 39(1)(a)(ii) – effect on the way of life, culture and traditions of the native title party
Section 39(1)(a)(iii) – effect on the development of social, cultural and economic structures of the native title party
Section 39(1)(a)(iv) – effect on the freedom of access by the native title party 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
The Government party contends it ‘is not aware of any information indicating the grant of the mining claim application would be likely to affect the native title party’s enjoyment or exercise of its native title rights and interests’. The Government party does not make any contentions about the effect of the grant of the mining claims on the native title party’s: way of life, culture or traditions; the development of their cultural and economic structures; or freedom of access to the land and waters concerned to carry out rites, ceremonies or other activities of cultural significance. The Government party states it considers these matters are for the native title party to address.
The Government party draws attention to the statutory conditions and obligations imposed on the grantee party’s activities under the ACHA, EPA and MRA. The Government party also notes the enjoyment or exercise of the native title party’s native title rights and interests may already be affected by the existence of a rolling term lease over the area.
The grantee party contends the grant of the mining claims will have a positive effect on the enjoyment of the native title party’s registered native title rights and interests. The grantee party asserts the holder of the rolling term lease does not allow the public or native title party access to the area of the lease, resulting in the native title party being unable to access coastal land which can only be accessed through the rolling lease area. The grantee party intends to have an agreement with the native title party allowing access to the area of the mining claims, facilitating access to the coastal area.
Section 39(2) directs that, in considering s 39(1)(a), the arbitral body must take into account the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters concerned by persons other than the native title parties. The Government party has provided evidence of the existence of a rolling term lease – pastoral, over Lot 91 on Crown Plan SB749. The term of the lease commenced on 7 July 1981 with the current expiry listed as 30 June 2060. I also note the mining claims are located within a larger area covered by exploration permit (minerals) (EPM 25770), also held by the grantee party. The exploration permit (minerals) will expire on 17 May 2021.
In my evaluation of the criteria outlined in ss 39(a)(i)-(iv) and 39(2), I have taken into account the willingness of the grantee party to have an agreement in place with the native title party to address any effect on the matters in ss 39(1)(a)(i)-(iv). I have also considered the evidence from the Government party and grantee party regarding the nature and extent of existing non-native title rights and interests in relation to the area of the proposed mining claims.
I note the material provided by Mr Morrell supports the statements made by the grantee party regarding the intention to negotiate an agreement between the grantee party and native title party. Mr Morrell’s material also refers to the benefit to native title party from the granting of the mining claims, that being improved access to the area of the mining claims and coastal area.
Given these factors, I find the grant of the mining claims is unlikely to affect the enjoyment by the native title parties of their registered native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures; and freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance.
Section 39(1)(a)(v) – effect on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions
Section 39(1)(b) – the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters what will be affected by the act
The Government party contends it ‘is not aware of any information indicating that the grant of the mining claim applications would affect any area or site of particular significance to the native title party’. The Government party has provided a report from the Cultural Heritage Database and Register showing there are no Aboriginal or Torres Strait Islander cultural heritage sites located in the area of the proposed mining claims and wider rolling lease area. The Government party contentions point to the cultural heritage duty of care under the ACHA, along with the constraints on conduct imposed under the EPA and MRA, as reducing the ‘risk that the grant of the mining claim applications will affect any area or sites of particular significance’. The Government party makes no contentions about any interests, proposals, opinion or wishes of the native title party as it considers ‘these are properly matters for the native title party to address in their statement of contentions’.
The grantee party describes a site known as Mine Hill: ‘a small hillock in the tidal area of the creek and has a number of ancient aboriginal fishing traps constructed out of stones. This is also a ceremonial site of significance. It is likely that there are artifacts (sp) or objects of significance to the Juru People [native title party] that lie on or under the ground in the area of the EPM and the mining claims’. The location of Mine Hill in relation to the mining claims areas is not explained. The material provided by Mr Morrell also refers to the Mine Island archaeological sites and ceremony ground.
The grantee party refers to the 13 March 2019 letter from Mr Morrell, noting it says the native title party does not object to the grant of the mining claims and identifies the native title party’s main concern as recognition and protection of cultural heritage. The material provided by Mr Morrell also draws attention to the native title party’s wish for a CHMP.
The grantee party submissions state the grantee party is committed to protecting and reporting any cultural heritage finds in the area of the mining claims to the native title party. The contentions outline the grantee party’s policy towards addressing the native title party’s concerns regarding cultural heritage:
a)to give regard and respect to the cultural heritage of the Juru People [native title party] by way of continuing consultation with KMYAC board of directors and their representatives;
b)to protect any known objects or sites of cultural heritage significance; and
c)remain vigilant for any possible artefacts within his EPM area and within the proposed mining claims that may relate to the Juru People [native title party].
The contentions state the policy is contained within the proposed ancillary agreement.
In evaluating the criteria outlined in ss 39(1)(a)(v) and 39(1)(b), I have taken into account the willingness of the grantee party to work with the KMYAC board of directors and their representatives to protect cultural heritage, reflected in the policy included in the proposed ancillary agreement. I have also considered statements from Mr Morrell indicating the families represented on the Kyburra board do not oppose the grant of the mining claims. Based on these factors, I find that the interests, proposals, opinions or wishes of the native title party, to the extent they can be discerned, have been taken into account by the grantee party and the grant of the mining claims is unlikely to affect any area or sites of significance.
Section 39(1)(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
Section 39(1)(e) – any public interest in the doing of the act
Section 39(1)(c) requires me to take into account the economic or other significance of the grant of the mining claims to Australia, the State of Queensland, the area in which the land concerned is located and Aboriginal peoples who live in that area. I am also required to consider any public interest in the granting of the mining claims (s 39(1)(e)).
The Government party does not suggest that the grant of the mining claims would have a major economic significance for Australia or the State of Queensland. The Government party contentions point to possible local economic benefits in the immediate area of the mining claims and potential royalty payments to be made to the Government party depending on the amount of mineral won through the mining claims. The Government party does not make any contentions about any economic significance to the native title party or Aboriginal or Torres Strait Islander people who live in the area. The Government party states the grant of the mining claims is in the ‘public interest insofar as it contributes generally to the maintenance of a viable mining industry within Queensland’.
The grantee party states the grant of the mining claims is of economic significance as the mineral to be extracted is valuable to the economies of the State of Queensland and Australia. The grantee party points to taxable income, royalty payments, statutory fees and money spent by the grantee party in the local community for the mining operations as further economic benefits, particularly for the local economy. The grantee party also states the grant of the mining claims is in the public interest due to its economic importance and potential employment opportunities through the encouragement of mining in the area.
I am satisfied the grant of the mining claims will have economic and other significance for the local Aboriginal community, as well as the State of Queensland.
Section 39(1)(f) – any other matter the Tribunal considers relevant
The Government party notes in its contentions that ‘the native title party and grantee party may have been close to reaching, or may in fact have reached, an ‘in-principle’ agreement about some or all of the issues relevant to the future act determinations’. The grantee party refers to the intention to have an agreement in place with the native title party throughout its contentions, citing sections of a proposed ancillary agreement. In his submissions, Mr Morrell also states that KMYAC and the grantee party intend to negotiate an agreement to operate as a stand-alone contract.
I have referred to the intention of the native title party and grantee party to have an agreement in place, and some of the matters addressed in that agreement, where it has been relevant to the various s 39 criteria. I note that the proposed ancillary agreement has not yet been finalised but parties appear willing to reach an agreement that will address the s 39 criteria.
Conclusion
After taking into account the effect of the proposed grant of the mining claims on the matters set out in s 39(1), I conclude the acts may be done.
Determination
The determination of the Tribunal is that the acts, being the grant of mining claim 10034 and mining claim 10035 to Terry David Keyse may be done.
JR McNamara
Member
11 July 2019
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