Victorian Gold Mines NL/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4) - [2002] NNTTA 130

NATIONAL NATIVE TITLE TRIBUNAL

Victorian Gold Mines NL/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4), [2002] NNTTA 130 (4 July 2002)

Application No: VF02/1

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

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IN THE MATTER of an inquiry into a Future Act Determination Application

Victorian Gold Mines NL (Grantee Party)

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The State of Victoria (Government Party)

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Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4) (Native Title Party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President
Place: Melbourne

Date: 4 July 2002

Catchwords: Native title – future act - application for determination in relation to a mining licence – ‘native title party’ is all registered native title claimants acting collectively – disputes and factions within native title party – native title party unrepresented – approach to evidence where native title party unrepresented – procedures for grant of mining licences in Victoria – mining operations no effect on matters in s 39(1)(a) of Native Title Act 1993 (Cth) – no sites of particular significance – comprehensive Aboriginal site protection regime in Victoria – economic benefit – public interest in environmental rehabilitation – no evidence to support imposition of conditions – determination that the act may be done.

Legislation:Native Title Act 1993 (Cth) ss 24MD(3), 29, 31(1)(b), 33, 35, 37, 38, 38(2), 39(1), 39(2), 41A(1), 139, 142, 151, 202(4)
Mineral Resources Development Act 1990 (Vic) ss 6(1)(c), 6(1)(d), 14(1), 15, 18, 24, 25-44
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 9, 10, 21B, 21C, 21D, 21E, 21F, Part IIA
Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) ss 15, 16, 45(1)(a)(xi), 45(1)(a)(xii), 45(6)
Land Act 1958 (Vic) s 149

Cases:Western Australia v Thomas (1996) 133 FLR 124
Cheinmora v Striker Resources NL (1996) 142 ALR 21
WMC Resources & Anor v Evans (1999) 163 FLR 333.
Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd and Others, NNTT WF98/267, WF98/268 and WF98/270, Hon C J Sumner, 20 August 1999
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 24 February 2000
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001
Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, NNTTNF01/1, John Sosso, 24 September 2001
Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, John Sosso, 1 February 2002

Words and Phrases: ‘native title party’

Hearing Date: 6/7 June 2002

Representative of the
grantee party: Mr Bill Flannery, Victorian Gold Mines NL

Counsel for the
Government party: Mr Tim Jacobs

Solicitor for the
Government party: Ms Georgia Denisenko, Victorian Government Solicitor

REASONS FOR FUTURE ACT DETERMINATION

Background

On 30 November 2000, Victoria Gold Mines NL (‘the grantee party’) applied for mining licence MIN5320 (‘the mining licence’) under s 15 of the Mineral Resources Development Act 1990 (Vic) (‘the MRDA’).
On 4 April 2001, the State of Victoria (‘the Government party’) gave notice in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘the NTA’) that it was considering granting the mining licence. The s 29 notice specified the mining licence to be over an area of 50 hectares with its centre 3.1 kilometres south of Cassilis and 8.1 kilometres north of Brookville. It falls within Crown Allotments 11 and 12 of Section 4, Parish of Jirnkee, County of Dargo. The underlying tenure is part reserved forest and part unreserved Crown land. Although the s 29 notice given under the Act gave the area of the application as 50 hectares the proposal now is for the mining licence to be granted over 8.64 hectares. It is common practice in Victoria for an application for a mining licence to cover a larger area than may be required and for the precise boundaries and area of the mining licence to then be defined by surveys. The grant is then made over that smaller area.
The proposed future act is the grant of the mining licence under s 25 of the MRDA for a term of 5 years and cannot validly be done unless the right to negotiate provisions of the Act are complied with (Subdivision P of Division 3 of Part 2 (ss 25-44)).
At the time the s 29 notice was given Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose and Robert James Farnham were registered native title claimants over an area which includes the area of the mining licence. They are still the registered native title claimants and are ‘the native title party’ in these proceedings (Native title determination application VG6007/98 (Tribunal Claim No VC97/4), made and originally registered on 4 April 1997 and amended and accepted for registration under the amended Act on 1 April 1999).
On 4 January 2002, being a period of 6 months after the s 29 notice was given, the grantee party made an application to the Tribunal under s 35 of the Act for a future act determination (‘the s 35 application’).
Section 31 of the Act imposes an obligation on all negotiation parties (i.e. the Government party, the grantee party and the native title party) to negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the act with or without conditions. If an agreement of the kind mentioned in paragraph s 31(1)(b) of the Act (referred to in these proceedings as ‘a s 31 Deed’) has been made, the Tribunal must not make a determination (s 37). A copy of the agreement must be given to the Tribunal (s 41A(1)). No agreement between the negotiation parties to the grant of the mining licence has been made and given to the Tribunal and the Tribunal must conduct an inquiry (s 139) and make a determination (s 38). This is the first future act determination made in Victoria after a completed inquiry.
The native title party has not taken issue with whether the Government party or the grantee party have negotiated in good faith and no other jurisdictional issues have been raised. I find that the Tribunal has jurisdiction to conduct this inquiry and make a determination (Walley v Western Australia (1996) 67 FCR 366).

Preliminary proceedings

In accordance with its normal Procedures under the Right to Negotiate Scheme the Tribunal gave directions for the provision of contentions and documents for the purposes of the inquiry. At a Preliminary Conference held on 4 March 2002 it became apparent that there was division within the claimant group. The Register of Native Title Claims says that the claim ‘is made jointly on behalf of the Aboriginal people who are the custodians of land owned traditionally by peoples known as the Gunai/Kurnai people “native title claim group”’. It now appears that the claim group have effectively split into what, for convenience, I will refer to as two factions. Of the registered native title claimants Graham (Bootsie) Thorpe and Robert James Farnham are in the Gunai faction and Lindsay Gordon Mobourne and Regina Lillian Rose are in the Kurnai faction. Throughout the inquiry, the spokesperson for the Kurnai faction was Ms Pauline Mullett who is a member of the claim group.
The Tribunal takes the view that a native title party in any right to negotiate inquiry comprises all the registered native title claimants acting collectively. Each individual registered native title claimant is not a separate native title party (Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 24 February 2000 at (5-11) and Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001 at [19]-[20]. It follows that each individual registered native title claimant is not entitled to be separately represented in an inquiry. I made this ruling at the Preliminary Conference and it was confirmed by letter from the Tribunal dated 5 March 2002 to each of the registered native title claimants. The Tribunal also offered to convene a conference under s 150 of the Act to help resolve any matters relating to the inquiry. This offer was not formally taken up but possible avenues for settlement were pursued before me at the Listing Hearings and subsequently before the Tribunal’s Case Manager, Mr Chris Loorham.
At the Preliminary Conference Mr Bill Flannery of Victorian Gold Mines NL advised that he had negotiated terms of an agreement with the Kurnai faction but that the Gunai faction had not considered it. The solicitor from Mirimbiak Nations Aboriginal Corporation (‘Mirimbiak’ - the representative Aboriginal/Torres Strait Islander body under the Act covering the claim area), Mr Paul Simmons, proposed that Mirimbiak engage an independent barrister to act for the native title party in relation to the inquiry who would meet with both the Gunai and Kurnai factions to ascertain if they would sign a s 31 Deed (involving all three negotiation parties) and a Project Consent Deed (involving the native title party and the grantee party).
On 2 April 2002 Mirimbiak informed the Tribunal that an independent barrister (Mr Rowan Skinner) was engaged and met with representatives of both claim group factions. The Gunai representatives were prepared to enter into the agreement on the terms and conditions offered which had been negotiated with the Kurnai faction and to have the independent barrister represent them. However, the Kurnai faction advised Mr Skinner that it was unwilling to sign a s 31 Deed or Project Consent Deed with the Gunai faction or have Mr Skinner represent them. Mirimbiak informed the Tribunal that as neither they nor Mr Skinner had instructions to act for the collective native title claim group they could not assist in complying with the Directions.
On 11 April 2002, the Tribunal (Mr Chris Loorham, Case Manager) wrote to each of the registered native title claimants informing them:

that neither Mirimbiak nor an independent barrister acted for the native title party;
of the Directions made on 4 March 2002 which required contentions and documentary evidence to be provided by 3 May 2002;
of the requirement for the Tribunal to conduct an inquiry into whether the mining licence can be granted;
that all parties are given a reasonable opportunity to present their case, to inspect documents and make submissions (s 142 of the NTA); and
if a party does not submit documentary evidence or appear before the Tribunal or make submissions, then the Tribunal will normally make its determination on the basis of the evidence or submissions provided by the other parties, which in this case meant on the evidence and submissions made by the Government and grantee parties.

Arrangements were made for the contentions and documents of the Government and grantee party to be sent to the registered native title claimants and Mirimbiak. In addition on 2 April 2002 Mirimbiak sent a copy of the Directions to each member of the native title claim group from the membership list held by Mirimbiak.

A Listing Hearing was convened on 10 May 2002. Contentions and documents had been provided by the Government and grantee parties and the Kurnai faction. The Kurnai faction’s contentions included a copy of an agreement entitled ‘Project Consent Agreement between Victorian Gold Mines NL (VGM) and the Kurnai to enable VGM to carry out work on Mining Licence 5320’. Among other things the agreement provided for royalty type payments to the Kurnai faction based on gold and silver recovered from the mining operations. The Listing Hearing was attended by representatives of both the Kurnai and Gunai factions and Mirimbiak. During the Listing Hearing I:

explained the nature of the inquiry and the factors in s 39 of the NTA which the Tribunal must take into account in making a determination;
explained that it is important to realise that this is not a hearing about the native title claim in general but is about the effect of the grant of this particular mining licence on the enjoyment of registered native title rights and interests and other matters referred to in s 39 of the Act;
said the Tribunal had no power to make a determination with a condition that required payment in the nature of royalties (i.e. payments based on profit sharing). While such payments can form part of an agreement between the parties (s 33) they cannot be made a condition of a determination (s 38(2));
said that while the Act permits a condition for an amount to be paid into trust on account of future compensation for the effect of a future act on native title, the Tribunal had not in any future act determinations to date imposed such a condition and that in a case like this where the area had already been substantially mined there would be a real question about how much compensation the native title party would be entitled to;
said that the hearing would not be about any dispute within the claimant group and that any conditions would relate to the claim group as a whole; and
said that the contentions provided by the Kurnai faction were general statements which did not specifically refer to the area of the mining licence or the effect of it on the factors in s 39 of the NTA.

At the Listing Hearing the Government party confirmed that before it would sign a s 31 Deed it required each of the registered native title claimants to execute it. Discussion ensued about whether the matter could be resolved by agreement, given that all registered native title claimants supported the agreement which had been negotiated with Mr Flannery by the Kurnai faction. Ms Pauline Mullett said that the Kurnai faction was not prepared to sign an agreement which included the other faction. The position as explained in their contentions is that they do not recognise the Gunai tribe as a legitimate group belonging to the Gippsland region and that any agreement signed with them gives legitimacy to their claim. I directed that the Government party forthwith provide to the Tribunal and other parties its witness statements and, by 17 May 2002, a draft Statement of Agreed Facts. These were provided to each of the registered native title claimants. There was some discussion about whether the matter could be resolved by the execution of separate Project Consent Deeds for each faction and a s 31 Deed in two parts or by payment of the agreed amount into trust pending the determination of native title.
At an adjourned Listing Hearing on 30 May 2002, I directed:

the Government party to provide its witness statements in affidavit form and file them at the commencement of the hearing; and
the Gunai faction (through Mr Paul Simmons) and the Kurnai faction to advise whether there were any issues to be raised in relation to the Government party’s witness statements or the draft Statement of Agreed Facts.

Ms Pauline Mullet informed the Tribunal that she wished to ask James (Stewart) Simmons (Manager – Heritage Policy and Information in the Heritage Services Branch of Aboriginal Affairs Victoria) about sites in the mining area. Further discussion ensued about the possibility of settlement, canvassing the issues raised at the first Listing Hearing. Mr Flannery made it clear that his offer was open until 4 June 2002. At the conclusion of the Listing Hearing, further discussion with Mr Loorham and amongst the parties occurred without me but no agreement was reached.

Determination ‘on the papers’

Section 151 of the Act says that the Tribunal may make a determination in relation to a right to negotiate application by considering, without holding a hearing, the documents or other material provided to the Tribunal (i.e. make a determination ‘on the papers’). However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. At the Listing Hearing on 31 May 2002, I ruled that a hearing was necessary. In making this decision I had regard to the fact that the native title party was unrepresented and that there was an irreconcilable split in the claimant group. To ensure as far as possible that all members of the claim group whether from the Gunai or Kurnai factions could give evidence a hearing in Gippsland was desirable. In deciding to travel to Gippsland I was also informed by the Kurnai faction that some claim group members may not have been able to come to Melbourne. In other circumstances I consider this to be the type of matter in which a determination on the papers may have been appropriate.

The hearing

The hearing was conducted on the country of the native title party at Warragul and Bairnsdale (on 6 June 2002) and Omeo (on 7 June 2002) and included a visit to the mine site. Bill Flannery gave evidence of the proposed mining operations. The Government party tendered affidavits from a number of Government officials dealing with the regulatory regime applicable to the grant of a mining licence, Aboriginal heritage protection and the economic and other benefits of the grant of the mining licence. Stewart Simmons of Aboriginal Affairs Victoria supplemented his affidavit with oral evidence. The Government party provided a Draft Statement of Agreed Facts. Although these were not formally agreed to by the native title party, there is nothing contentious in them and I have accepted them as accurately reflecting the evidence before me.
A number of the members of the claimant group attended the hearings. Ms Pauline Mullett was present throughout. At various times the following were present:

Regina Rose, Daryl Mobourne, Howard and Michelle Mullett and Norman Hood (Kurnai faction); and
Albert Mullett, Collin Mullett, Rachel Tatchell, Fay Harrison, Frank Harrison, Eileen Baxter (Gunai faction).

At the Listing Hearing and at the Warragul and Bairnsdale hearing I made it clear that any member of the claimant group, whether a registered native title claimant or not, could provide evidence to the Tribunal. Sworn evidence was given by Pauline Mullett and Albert Mullett, and Ms Fay Harrison made some comments which I accepted as evidence.
Mr Paul Simmons of Mirimbiak also attended the hearing. The function of a representative body under the Act is, if requested, to assist claimants in relation to native title applications and future acts (s 202(4) NTA). Although not formally instructed to act for the native title party I ruled that in the circumstances of this case Mr Paul Simmons was entitled to attend the hearing and to provide assistance to the Tribunal if requested.

The Tribunal’s approach to evidence

The Tribunal established the following principles in Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’) (at 154-163) which were followed in this inquiry:
‘(1)The Tribunal's determination must be based on logically probative evidence and by application of the law.
(2)The Act recognises the interests of the negotiation parties in the outcome of the inquiry and gives them various procedural rights, including a reasonable opportunity to present their case.
(3)There is no onus of proof as such but there is a common sense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge. Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions.
[see McDonald v Director-General of Social Security (1984) 1 FCR 354 (per Woodward J at 356-358); Ward v Western Australia (1996) 69 FCR 208, per Carr J at 215-217]
(4)Although the Tribunal may conduct its own inquiries and obtain evidence itself, it is not generally required to do so and, as a matter of general practice where parties are represented before the Tribunal, would not do so. In other words, the Tribunal is not required as a matter of general practice to make out a party's case for it where that party chooses not to produce relevant evidence.
(5)The Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.
…’

I was mindful of the fact that the native title party was unrepresented. At the Listing Hearings and at Warragul and Bairnsdale, I explained the role of the Tribunal in a future act determination inquiry and the factors which I was required to take into account in s 39 of the Act and invited any member of the claim group who wished to do so to give evidence. I did not regard it necessary to conduct my own inquiries but explained the process to the claimants and by questions gave them the opportunity to provide evidence specific to the matters set out in s 39.

The law

In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:

ReKoara People (1996) 132 FLR 73 (‘Koara 1’);
Evans v Western Australia (1997) 77 FCR 193 (‘Evans’). (Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans & Others (1998) 163 FLR 274 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’); and
WMC Resources & Anor v Evans (1999) 163 FLR 333.

Although concerned with the grant of mining leases under the Mining Act 1978 (WA) these general principles are applicable to this case.

The centrally relevant statutory provisions are ss 38 and 39 of the NTA.

‘38 Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)    a determination that the act must not be done;
(b)    a determination that the act may be done;
(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a)    is not reasonably capable of being determined when the determination is made; and
(b)    is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration
(1B)If:
(a)    the manner specified is arbitration (other than by the arbitral body); and
(b)    the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)    the amount of profits made; or
(b)    any income derived; or
(c)     any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

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.’

Of particular relevance to this matter is that since the 1998 amendments to the Act the Tribunal:

is limited in its inquiry to native title rights and interests which have been accepted for registration and placed on the Register of Native Title Claims;
is to assume for the purpose of the inquiry that the native title rights and interests which potentially could be affected are those set out in the Register of Native Title Claims; and
must consider evidence, which ordinarily will come from the native title parties, of how the future act including any rights exercised pursuant to any grant, will affect the registered native title rights and interests. This means that the Tribunal needs to consider how the native title rights and interests are being exercised or enjoyed in the vicinity of the mining licence area and how the mining activities will affect them or the other matters referred to in s 39(1)(a) (Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at 166-167 and WMC Resources & Anor v Evans (1999) 163 FLR 333 (at 337-341).

Procedures for granting mining licences under the MRDA and the regulatory regime applicable to them

Section 14(1) of the MRDA provides:
‘Mining licences
14.    Mining licences
(1)     The holder of a mining licence who obtains a work authority is entitled to carry out mining on the land covered by the licence and-
(a)to explore for minerals; and
(b)to construct any facilities specified in the licence, including drives, roads, water races, tailing dumps, tailing dams, drains, dams, reservoirs and pipe-lines; and
(c)to do anything else that is incidental to that mining.
(2)     The licensee may-
(a)use, for any mining purpose, any tailings produced by the licensee during work under the licence or a former licence or a former title within the meaning of clause 2 of Schedule 2 (whether before or after 6 November 1991); or
(b)with the consent of the Minister and in accordance with any conditions imposed by the Minister on that consent, dispose of any tailings referred to in paragraph (a).
(2A)    A licensee must not dispose of any tailings referred to in sub-section (2)(a) otherwise than with the consent of the Minister under sub-section (2)(b) and in accordance with any conditions imposed by the Minister on that consent.
Penalty applying to this sub-section: 60 penalty units.
(3)     A mining licence-
(a)is current for the time specified in the licence, not exceeding 20 years from the date on which it is registered unless the Minister decides otherwise; and
(b)may be renewed in accordance with the provisions of this Part; and
(c)applies to the land described in the licence.
(4)     The area of the land described in a licence must not exceed 260 hectares, unless the Minister decides otherwise.
(5)     A mining licence that covers an area of more than 5 hectares does not entitle the holder of the licence to only explore for minerals during the currency of the licence.
(6)     However, the Minister may, by notice in writing, authorise the holder of such a mining licence to only explore for minerals for a specified period of up to 2 years.’

There is provision for renewal of a mining licence for a period not exceeding 20 years (s 32(1)).

Section 15 of the MRDA says that a person may apply to the Minister for a mining licence. A mining licence applicant must satisfy the Minister in accordance with s 15(6) of the MRDA that the applicant:

is a fit and proper person to hold the licence;
intends to comply with the MRDA;
genuinely intends to do work;
has an appropriate program of work; and
is likely to be able to finance the proposed work and rehabilitation of the land.

There is provision for a person to object to the grant (s 24).

Section 18 of the MRDA requires the Department Head to give notice of the application to:

any person or body nominated by the Minister administering the Archaeological and Aboriginal Relics Preservation Act 1972; and
any person or body nominated by the Minister to whom a power has been delegated under s 21B of the Aboriginal andTorres Strait Islander Heritage Protection Act 1984 (Cth). The ‘local Aboriginal communities’ specified in the Schedule to that Act have been nominated.

Section 26 of the MRDA says that the Minister:

may grant a mining licence over an area that is smaller than the area specified in the application; and
may impose conditions, including (among others) conditions about rehabilitation of the land; protection of the environment; protection of ground water; expenditure; reporting of the discovery of minerals; entering into a rehabilitation bond; payment of fees; payment of an environmental levy; and payment of royalties.

Section 39 of the MRDA requires an applicant to have a ‘work authority’ prior to commencing work in a mining licence area (s 39(3)). Section 42 says that the holder of a mining licence may apply to the Department Head for a work authority. To obtain a work authority under the MRDA the applicant must have:

an approved work plan (including rehabilitation plan) (s 42(2)(a)(i));
lodged a rehabilitation bond (s 42(2)(a)(ii));
obtained a planning permit where applicable or completed an Environment Effects Statement (EES), and other relevant consents (s 42(2)(a)(iii);
given seven days notice to the Inspector of Mines and the owners/occupiers of the land of the intention to commence work (s 24(2)(b));
obtained consent or made a compensation agreement with the landowner and occupier (s 42(2)(c)); and
public liability insurance.

Section 6(1)(c) of the MRDA prohibits mining on an Aboriginal area or place subject to a permanent declaration under ss 10 or 21E of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and land that is a permanent archaeological area under s 15 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). Section 45(1)(a)(xi) and (xii) prohibits any work within 100 metres of an archaeological area as defined in the Archaeological and Aboriginal Relics Preservation Act 1972 or any archaeological relic as defined in that Act considered worthy of preservation. Section 45(6) prohibits work on land that is an Aboriginal area or place in contravention of a declaration under ss 9, 10, 21C, 21D or 21F of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) or a declaration under s 15 or 16 of the Archaeological and Aboriginal Relics Preservation Act 1972.
To obtain an approved work plan (a requirement for the work authority), the applicant must lodge a work plan under s 40 of the MRDA. The work plan is considered by the Department of Natural Resources and Environment and usually involves consultation involving the District Mining Inspector, Environmental Officer, Regional Crown Land Manager, Shire and the applicant. An important consideration of the work plan assessment is the amount required for the rehabilitation bond.
In approving a work plan, the Department Head may specify conditions to be observed by the licensee (grantee party) in carrying out the work plan (s 40(6)). There are standard conditions imposed on the grant of all mining licences as well as conditions tailored to the particular project. The standard conditions give more detailed effect to the statutory requirements.
The conditions specify that work must be carried out in accordance with the approved work plan, incorporating a rehabilitation plan. There are conditions covering:

fencing and security and signposting where public access may present a safety hazard within the mining licence;
buffer zones and visual screening measures;
maintenance and preservation of existing vegetation (excluding weeds) within the buffer zones:
a prohibition on the introduction of plant diseases or noxious weeds;
fire precautions;
regulating surface disturbances, vegetation removal and soil management;
proper maintenance of internal roads;
control of the diversion of water free of pollutions as far as possible;.
tailings dams to be constructed in accordance with the approved work plan;
minimisation and rectification of land erosion;
adequate bunding around tanks used for fuel and lubricant storage;
minimisation of dust generation, so as to not cause detriment to surrounding areas and residents and revegetation of disturbed areas as soon as possible;
noise emissions to comply with environmental standards;
detailed regulations covering cyanidation operations;
progressive rehabilitation in accordance with the approved work plan;
final rehabilitation, where practicable, to reinstate all disturbed areas back to the natural surface;
public liability insurance; and
heritage sites, including Aboriginal sites (Standard Condition No 20).

Where the grant of a mining licence might constitute a future act under the NTA, the applicant must also satisfy the requirements of the NTA before a work plan will be approved by the Department, and a work authority granted.
The grantee party has prepared a work plan under s 40 of the MRDA, a copy of which was received in evidence (Cassilis Gold Tailings Project – Work Plan for mining licence applications 5320 and 5332 and mining licences 32 and 4005). The Work Plan is a comprehensive document which describes the Project in detail and deals with the issues required by the MRDA and its associated regulatory regime. There are consultants’ reports on tailing’s spills, tailing’s storage, flora and fauna studies, water and creek sediment conditions, groundwater monitoring, revegetation and heritage. It also includes a Cultural Heritage Assessment relating to Aboriginal heritage, which assumed some importance in the inquiry and which is dealt with below.
This case does not call for a detailed analysis of the above provisions and conditions but in some cases the protective measures in legislation and required by the conditions could be relevant to whether, and to what extent, a future act will have an effect on native title rights and interests and other matters referred to in s 39(1)(a) of the Act. Since the amendment to the Act in 1998, the effect of a future act on ‘the natural environment’ is no longer a discrete factor which the Tribunal must take into account. Nevertheless the Tribunal may have regard to measures designed to reduce environmental impact as, depending on the evidence, these may reduce the effect of the future act on some of the matters referred to in s 39(1)(a) (WMC Resources & Anor v Evans (1999) 163 FLR 333 at 341; Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, NNTTNF01/1, John Sosso, 24 September 2001 at [136]-[154]).

The proposed mining operations

The Cassilis Gold Tailings Project (‘the Project’) involves the removal of tailings from old mining areas in the vicinity of Swifts Creek township and transporting them to a central processing plant for treatment and the extraction of residue gold.
The Project may eventually cover four areas:

Power’s Gully – Mining Licence application MIN 5320
King Cassilis Tailings and Mullock – Mining Licence MIN 4005, Mining Lease ML 2032 and Mining Area Licence – MAL 32. These are already held by the grantee party.
Grey Creek Tailings – Mining Licence application MIN 5322. This mining licence has not yet been granted. It is covered by the Gunai/Kurnai claim.
Warden Mullock – Mining Licence MIN 4016 held by the grantee party.

An exploration licence (EL 3463) has been granted over a large area incorporating these four areas which the grantee party will utilise to ascertain if there are further areas for the potential mining of tailings.
The treatment plant is covered by MIN 5332 which has already been granted and is over freehold land. Native title has therefore been extinguished.
MIN 5320 (Power’s Gully), MIN 4005 and MAL 32 (King Cassilis) and MIN 5332 (treatment plant) are covered by the grantee party’s work plan for the Project. The other areas are potential sites for the removal of tailings but their incorporation in the Project will be the subject of a further work plan if proceeded with. There is another area near Brookville, also the subject of the Gunai/Kurnai claim which may become part of the Project.
The treatment plant is to be situated three kilometres from Swifts Creek township. It is on general farming land. After treatment the reprocessed tailings will be secured in a tailings dump that will be built in accordance with current practice by sealing them with an impermeable base and wall and capping the top. Once the Project is finished the land will be rehabilitated for farming purposes.
MIN 5320 is situated some 10 kilometres west of the treatment plant site on Power’s Gully in the historic Tongio West goldfield. Sampling of the tailings shows that they are heavily contaminated by arsenic, which currently leaks into the creek. MIN 5320 is located in an area of natural bushland but most of it is covered with two metre high tailing dumps which are devoid of vegetation. Part of it includes old treatment works and plant from past mining which have been provisionally added to the Victorian Heritage Register kept under the Heritage Act 1991 (which relates to non Aboriginal heritage) pending deliberations of the Heritage Council. An old tailings dump adjacent to these historic works is also included in the registration. Very little of the area remains undisturbed by prior mining or associated activity.
On MIN 4005 and MAL 32 there is mullock (waste rock) material in two dumps located at the old King Cassilis treatment plant. The current proposal is to use this mullock for road construction on top of the Powers Gully tailings dumps. Both the mullock used to construct the roadway and the tailings will be excavated and trucked to the treatment plant. Tailings and mullock are waste material left over from previous mining operations and the Project is based on the expectation that this waste material when reprocessed using modern technology will yield economic gold recovery.
Power’s Gully is approximately 2 kilometres west of Tongio West and access to the site is via an unsealed track. The grantee party does not envisage that the track will need to be substantially upgraded but two temporary water crossings will need to be constructed. These will be removed on completion of the Project. At Tongio West the track joins the sealed road to Swifts Creek which will be used to truck the tailings to the treatment plant.

Gold was discovered in the Tongio West minefield in 1853 and mining commenced in 1854. In 1866 a Gold Mining Lease was granted over part of the MIN 5320 area and between 1867 and 1917 three other Gold Mining Leases covered the area. There were numerous other mining leases granted in the vicinity of MIN 5320 from 1866 to 1938. Mining continued on MIN 5320 until 1918 and the tailings and mullock have been lying in dumps on the surface of the land since then. In recent years mining titles have been granted over much of the Cassilis area but, other than exploration, little work has been undertaken.

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

The Register of Native Title Claims (VC97/4): The following native title rights and interests are entered on the Register of Native Title Claims:
‘1. Exclusive Possession
The rights and interests possessed by the applicants under the traditional laws acknowledged and traditional customs observed by them confer on them possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.
The applicants seek a determination that the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to the rights validly granted by the Crown pursuant to statute to others to possess, occupy, use or enjoy the land or waters.
2. Ownership
The right and interest of possession, occupation, use and enjoyment of the land and waters.
The right to be acknowledged as the traditional Aboriginal owners (the indigenous owners, or the owners according to traditional law and custom) of the land and waters.
3. Right to Natural Resources
The right and interest of ownership of the natural resources of the land and waters, and the right to take, use and enjoy those resources.
The natural resources of the land and waters includes, but is not limited to, animals, birds, plants, fish, marine animals, shellfish, timber, water, ochre, stone, minerals and subsurface materials.
4. Right to Trade
The right to trade in the natural resources of the land and waters by exchange, barter, sale or otherwise.
5. Right to Make Decisions
The right to make decisions about the use of the land and waters in accordance with traditional laws and customs.
This right includes the right to care for the land and waters, to maintain the environmental health of the land and waters, and to protect the land waters and the natural resources of the land and waters from damage or harm.
6. Right to Give or Refuse Access
The right to give or refuse permission to have access to the land and waters, or to occupy, use or enjoy the land and waters, or to use and enjoy the natural resources of the land and waters.
7. Protection of Heritage
The right to protect places and areas of importance in the land and waters.
Such places include places of significance to the applicants, places of spiritual significance, places of historical and cultural significance, burial grounds, places that record the presence of the applicants' ancestors including scarred trees, camping areas, middens.
8. Management of Spiritual Business
The right to manage the spiritual business and to safeguard the cultural knowledge associated with the land and waters.
This includes the right to the cultural knowledge relating to the land and waters, to perform ritual relating to the land and waters, to teach and transmit the knowledge, ritual and cultural heritage relating to the land and waters, to possess sacred objects relating to the land and waters.
9. Transmission of Rights
The right to inherit and dispose of our land and waters in accordance with our laws and customs.
10. Cultural and Intellectual Property Rights
The right to own, control and manage our cultural and intellectual property in accordance with our laws and customs.
The Native Title Rights and Interests are subject to the following qualifications:
The application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined under section 23F of the Native Title Act 1993 save where the Native Title Act 1993 and/or the common law allows such a claim to be part of a Native Title Determination Application.
To the extent that the Application includes native title rights and interests claimed in relation to an offshore place - the Application does not exclude all other legal and valid rights and interests in relation to the whole or part of the offshore place.
To the extent that the Application includes native title rights and interests consisting of or including ownership of minerals, petroleum or gas, the application does not consist of or include ownership of minerals, petroleum or gas where the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas.
The applicants seek a determination that the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to the rights validly granted by the Crown pursuant to statute to others to possess, occupy, use or enjoy the land and waters.’
Contentions were made by Ms Pauline Mullett in relation to each of the s 39(1)(a) criteria but only on behalf of the Kurnai faction. These contentions are very general and directed to issues more relevant to the native title claim than the specific criteria in s 39(1)(a) and to the conflict in the claim group. The contentions of the Kurnai faction in relation to s 39(1)(a)(i) were:
‘The land is very important aspect of our culture and to our people. We the Kurnai Tribes are the original inhabitants of the Gippsland region.
Traditional and continuous association and claim to land within the Aboriginal community is through the mother. The Kurnai tribes have been historically recognised in the Gippsland region since the mid 1800’s. Only 5 tribes have been historically documented in the Gippsland region. These are Tatungoloong, Krowathunkooloong, Brayakoloong, Brabuwooloong and Bratowoloong.
There is no tribe, nor has there been a tribe by the name of Gunai. This is evidenced by the total lack of historical evidence and supported by the Kurnai Elders. The people claiming to be Gunai have no traditional association with Gippsland region. They have no traditional or ancestral association with the Kurnai people. They have no rightful claim or connection with the land.’
Evidence of Albert Mullett (Gunai faction): Mr Mullett said that the mine site and the area generally is very significant to him. Aboriginal people do not separate out or categorise one area as significant. To them the whole of the landscape is a culturally significant site and any sort of development has a devastating effect on it. He said there were lots of sites in the general area including campsites and places where ceremonies, hunting, fishing, gathering and teaching children about culture and heritage took place. Some families in the claim group still carry out customs and practices on their country including in the vicinity of the mine sites around Swifts Creek and Omeo. He said he travelled to the country a lot and was there six or eight months ago but that while he knew where the mine site was he had not been there for a long while. He exercises his native title rights by collecting cultural material and making traditional weapons and teaches children from the claim group and students about his culture.
Although not very specific Mr Mullett’s evidence establishes that members of the claim group still engage in traditional cultural pursuits in the claim area generally but it falls short of establishing that any of the native rights and interests are enjoyed in and around the immediate vicinity of the mine site.
Evidence of Pauline Mullet: Ms Mullett said that the area of the mine site was part of the country of the Krowathunkooloong Clan of the Kurnai People but because there were currently no known descendents of that clan she had the authority to speak for it. She said that the Kurnai people enjoy their registered native title rights and interests as a very important part of their culture. They use the land to provide for their needs. She last visited the Swifts Creek area in October 2001. Gold to the Kurnai People was a very sacred resource which under traditional law could not be given to anyone else. The area of the mine site is very significant to the Krowathunkooloong and Brabuwooloong Clans and the Kurnai people generally. The land has been taken away by European settlement but under the NTA the Kurnai People have a right to access to traditional lands and native title rights should be secured by the processes of the NTA. There will be an impact on the land and native flora and fauna and the rivers and environment. Ms Mullett’s evidence is of a general kind and does not establish that native title rights are exercised or enjoyed in the vicinity of the mine site.
Any native title which is determined to exist over the area will not be extinguished by the grant of MIN 5320 (s 24MD(3) NTA).
There is no evidence to support a finding that, in any practical sense, the registered native title rights and interests of the native title party are enjoyed in the locality of MIN5320. I am satisfied that the general regulatory regime for mining licences will lessen the impact that might otherwise have occurred from mining. Further the proposal of the grantee party to return the area to natural bushland after mining can only enhance the capacity for the native title party to enjoy and exercise traditional rights over it.
A conclusion that the mining operations will have no effect on the enjoyment of native title is not a surprise as most of the MIN 5320 area is covered by tailings and has been for decades. There is a small strip of natural bushland on one side of MIN 5320 which will be interfered with by the construction of a drain. On the other side a bund wall will be built to stop the tailings falling into the creek during removal. Whatever the temporary disturbance (estimated to last 10 months), the Project is designed to remove the old tailings and the source of arsenic leaking into the creek and restore the whole area (except possibly that subject to non-Aboriginal heritage issues) to natural bushland.

Section 39 (1)(a)(ii) - way of life, culture and traditions

The contentions of the Kurnai faction on this issue were:
‘The Kurnai Tribes used the land to maintain their culture and way of life. We used the land to provide for all our needs. We did not differentiate between the land providing our sustenance or spiritual needs. Every inch of the land and sea is important. It is the white man that has tried to make us identify which areas are more important than others ie. Sacred Sites. This is akin to asking a white person which part of their house is most important to them. Their house is their home. There is no part of the home that is more important than another part of the house. The relationship with our land is very similar. All of it is important, the land, the plants the animals are as important to us as the air we breathe. Our cultural heritage and history is all part of this Kurnai land which is now called Gippsland.
The Kurnai can trace their association with the land long before the white man came. The five Kurnai tribes have been historically documented since the early 1800’s. We the Kurnai people have not heard of a Gunai tribe prior to 1996 nor is there any support historical documentation of such a tribe. The chance of an unknown tribe residing in the Gippsland region without the local inhabitants knowing about it is quite ridiculous.’
These contentions are of general nature and relate more to the issue of sites which I deal with below. There is no evidence to support a finding that the grant of MIN 5320 will have any affect on the way of life, culture and traditions of the native title party. Evidence covering the issues dealt with in these contentions may be relevant in the Federal Court proceedings to determine the native title claim.

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

The contentions of the Kurnai faction on this issue were:
‘The Kurnai clan have been the custodians and traditional owners of the Gippsland region for thousands of years. The five tribes of the Kurnai occupied different parts of the region however they had very close ties with each other through both marriage and common cultures. Each tribe had their own totem and designated Elders that maintained and enforced the Kurnai culture and traditions. The tribal ancestry and lineage was recognised only through the mother. There were very strict rules defining marriages between the tribes. Depending on his or her parents each individual was associated with their totem. Only compatible totems could marry. This precluded interbreeding and maintained a healthy and vibrant society.
Tribes outside the Kurnai were treated as an enemy. Clear delineation of territories were observed and trade between the tribes was a complex process with substantial protocols to maintain the status quo. Appropriately identifiable messengers were used by both parties to initiate a trade at a neutral ground. Often wives would be stolen from other clans outside the Gippsland but these women or descendents were never recognised as Kurnai. The stolen women would be treated with respect but as an outsider. Her children would not be initiated however in all other respects they were treated equally within the tribe. Having woman from other clans often helped when trading with other clans as they would be aware of the needs of the other clan.’
These contentions are not specifically directed to the effect of the grant of MIN 5320 on the development of the native title party’s social, cultural and economic structures and there is no evidence to support the grant having adverse effect on them. Again, evidence covering the issues raised in these contentions may be relevant in the Federal Court proceedings to determine the native title claim.

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

The contentions of the Kurnai faction on this issue were:
‘Over the last 150 years much of the land has been taken from us. A deliberate policy of removing our people from our land by any means including, killing, poisoning and introducing disease was adopted by successive governments. Later, forced relocation and integration was the preferred method. Our people were force to live on missions with people from other clans, often our enemies. We were discouraged from practicing our traditional culture by mission staff associated with the Christian churches. We were dispossessed of our land and our way of life.
We the remaining Kurnai people are trying to salvage our culture. Our land is sacred to us and is a major part of reconciling our past. Corporations treat our land as a commodity for their own private use only for profit without and recompense or compensation to the traditional owners. They are destroying our past with little regard to our future.’
These contentions do not address how the grant of MIN 5320 will effect the activities covered by this criterion. There is no evidence to suggest that the native title party conduct any of the activities at the mine site. Again, evidence covering the issues raised in the contentions may be relevant in the Federal Court proceedings to determine the native title claim.
Mr Albert Mullett said that he did not want access restricted by erection of a fence during mining. It is not clear from the evidence whether the area will be fenced off during removal of the tailings although conditions requiring it could be imposed. It may be that for safety reasons there will be some restrictions on access to the site during the mining operations but as these will only be temporary, and thereafter the area will be rehabilitated, I do not consider any temporary restrictions on native title party access to be of any weight particularly as members of the claim group seldom visit the mine site area.

Section 39(1)(a)(v) – areas or sites of particular significance

The Kurnai faction’s contentions on this issue were
‘All the land, water, flora and fauna belonging to the Kurnai people is sacred. Often the white man asks us to identify the sacred or culturally significant places. There is even a register to document these areas. To the Kurnai everywhere is sacred and culturally significant. When you need to fish than the river is sacred, when you need to find food then the bush is sacred and when you need to shelter a small outcrop or a camp site is sacred and when an initiation ceremony is held that area is sacred. There are also areas that are secret and would not be identified to the uninitiated for cultural reasons. The land is full of our cultural history and remnants of our ancestors.’
The evidence of Pauline and Albert Mullett is set out above. During the mine site visit Daryl Mobourne said that he had been taught by his elders that he needed to talk to the spirits before coming to places in the hills similar to the area of the mine site. Ms Fay Harrison said she did not know personally of any sites in the mine area.
The evidence does not establish that the area of MIN 5320 is a site of particular significance to the native title party in accordance with their traditions. The Act refers to sites of particular significance (i.e. of special or more than ordinary significance). In the context of the expedited procedure where the same terminology is used in s 237(b), the Federal Court (Cheinmora v Striker Resources NL (1996) 142 ALR 21, Carr J at 34-35) said:
‘a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough, that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the tribunal will have to make its own factual assessment of that matter.’

This interpretation is equally applicable to s 39(1)(a)(v).

It is also necessary for there to be evidence of the nature of the significance so that whether it is a special place or not can be properly assessed by the Tribunal (Moses Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, John Sosso, 1 February 2002 at [91]). Statements that there are sites in the general area does not suffice to establish the special nature of the mine site to the claim group in accordance with their traditions.
I acknowledge that the mine site is located in what is, if it had not been for the prior mining activity, an area of beautiful native bushland and the presence of native bird species was apparent during the site inspection. But this does not on its own mean that it is special place to the claimants in the sense used in s 39(1)(a)(iv) of the Act.
The native title party’s contention is that all of the claim area is of special significance to the claim group. The Tribunal acknowledges that Indigenous people have a special and unique spiritual attachment to land generally but in addition to this the Tribunal must consider whether there are any areas or sites of particular (i.e. special and above the ordinary) significance which may be interfered with. This provision of the Act is based on the assumption that to Indigenous people there are some ‘special places’ which need consideration and protection. Indeed, this is the basis of Aboriginal site protection legislation which in various forms applies throughout Australia.

Ms Pauline Mullett referred to other places in the general vicinity where she said there were over 100 artefact sites. No more specific information was provided and the assertion did not relate to MIN 5320, nor was any evidence given of whether such sites were of particular significance in accordance with the traditions of the native title party. If there are such artefact sites and there is any possibility of them being interfered with by any part of this Project, I am satisfied that the protective measures in Victoria’s legislation described below will be adequate to deal with the situation.
The Aboriginal site protection regime in Victoria: The protection of Aboriginal cultural heritage in Victoria is governed by two principal Acts. The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) and the Aboriginal and Torres Straight Islander Heritage Protection Act 1984 (Cth).
Archaeological and Aboriginal Relics Preservation Act 1972: This Act protects an ‘archaeological relic’ or ‘relic’ which is defined as a relic pertaining to the past occupation by Aboriginal people whether or not the relic existed prior to the occupation of that part of Australia by people of European descent and includes any Aboriginal deposit, carving drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia.
An Archaeological Relics Advisory Committee is established with 11 members including three Aboriginal people nominated by the Minister and with the function of advising the Minister on all matters relating to archaeological relics and their preservation. The Secretary of the Committee is to keep a register of all known occurrences of relics and all persons known to be holding private collections of artefacts or unique specimens that includes relics. The Secretary is to seek information about any new discovery of relics and arrange for the protection of relics. Archaeological areas may be proclaimed where necessary to preserve any relics and entry to such area is forbidden without permission. The Minister may compulsorily acquire land where informed by the Advisory Committee that there is a unique and irreplaceable relic which is in danger of loss or damage.
It is an offence to wilfully or negligently deface, damage or otherwise interfere with a relic unless Ministerial consent has been obtained after recommendation of the Advisory Committee provided the relic is not of special significance. In determining whether a relic is of special significance the Minister must have regard to any former use or significance based on Aboriginal oral tradition or historical association; any existing or potential anthropological, archaeological or ethnographic research of importance; and any recommendation made by any Aboriginal person during consideration of the issue by the Advisory Committee or following public notification that the Minister is considering giving consent. It is an offence to disturb or excavate any land for the purpose of uncovering or discovering a relic without Ministerial consent. Discovery of relics is to be reported unless already on the register and will be preserved if they are worthy of it.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): In addition to the general provisions applicable Australia wide, Part IIA of this Act contains provisions applicable to Victoria only. Its administration is delegated to the State Minister. It provides for the protection of Aboriginal objects and Aboriginal places which are of particular significance to Aboriginals in accordance with Aboriginal tradition. Emergency and temporary declarations can be made to prevent Aboriginal places and objects from injury or desecration as well as a permanent declaration of preservation. An inspector (a person appointed after consultation with a local Aboriginal community who has knowledge and expertise in the identification and preservation of Aboriginal cultural property), the Minister or a magistrate may make an emergency declaration if there are reasonable grounds for believing that the place or object is under threat of injury or desecration. It may last up to 44 days. A temporary declaration may be made by the Minister after advice from a local Aboriginal community that an Aboriginal place or object is under threat of injury or desecration. It may last up to 120 days. A Declaration of preservation may be made by the Minister after advice from a local Aboriginal community that a declaration should be made because of the importance of maintaining the relationship between Aboriginals and the place or object. The Minister can specify the manner of preservation to be adopted including prohibition of access to or interference with the place or object. There is provision for arbitration in relation to temporary or preservation declarations. It is an offence to contravene the terms of a declaration or to wilfully deface, damage, interfere or do anything likely to endanger an Aboriginal object or place.
A local Aboriginal community may enter into an Aboriginal Cultural Heritage Agreement with anyone who owns or possesses any Aboriginal cultural property (Aboriginal places, objects or folklore) for its preservation, maintenance, exhibition, sale or use. The Minister may compulsorily acquire any Aboriginal cultural property if satisfied on the advice of a local Aboriginal community or otherwise that the property is of such religious, historical or cultural significance that it is irreplaceable and no other arrangements for its preservation or maintenance can be made. The property is then held by the local Aboriginal community on trust for that community or otherwise by the Minister on trust for Aboriginal people in Victoria. A number of organisations are specified as local Aboriginal communities in the Schedule to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
The evidence of Stewart Simmons, Manager of Aboriginal Affairs Victoria (‘AAV’) outlined the statutory and administrative process for protection of Aboriginal cultural heritage in relation to mining under Victorian legislation. He has overall responsibility for management of the Register of Aboriginal Cultural Heritage Sites and Objects (‘the sites Register’) maintained under the Archaeological and Aboriginal Relics Preservation Act 1972. There is an arrangement between AAV and the Department of Natural Resources and Environment (‘DNRE’) to check applications for mining licences against the sites Register so that applicants can be advised of any Aboriginal heritage sites situated within, or immediately adjacent to, the boundaries of the proposed licence area so that the sites can be avoided (ss 6(1)(c), 6(1)(d) and 45(1)(a) of the MRDA). Details with a map of the mining licence are provided to AAV which checks it against the sites Register. If sites are present in the area a map of registered site locations and details of the number, name, type and map grid co-ordinates of each site are sent to DNRE for incorporation into the licence when issued. If no registered Aboriginal heritage sites exist AAV request advisory clauses be inserted in the licence alerting the applicant to their legal responsibilities in relation to any Aboriginal heritage sites that may exist. These are in the form of standard condition No 20.
These procedures were followed in this matter and AAV advised the DNRE that there were no Aboriginal archaeological relics registered under s 10(a) of the Archaeological and Aboriginal Relics Preservation Act 1972 in the area affected by MIN 5320 and requested that the following clause (Standard Condition No 20) be attached to the licence when issued.
‘Tenure of this licence does not exempt the holder from the following provisions of the Archaeological and Aboriginal Relics Preservation Act 1972:
Section 21(1) – “A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act”; and
Section 23(1) – “A person who discovers a relic shall forthwith report the discovery … unless he has reasonable grounds to believe that the relic is recorded in the register …”.
Reports in compliance with section 23(1) should be submitted to the Executive Director, Aboriginal Affairs Victoria, PO Box 515, East Melbourne Vic 3002 ph. 9616 2911.’
The sites Register was established in 1973. A relatively small number of sites were included on it from information held by the Government party including the Museum. In addition surveys were carried out to identify and record sites. Others were registered following reports made during the environmental assessment of development proposals. The field surveys were not a comprehensive attempt to map all Aboriginal sites in Victoria. There are still vast areas of Victoria where no heritage assessment or investigation or survey has been carried out. At present there are approximately 22,500 registered sites and 600 to 1000 are added each year. The survey process is ongoing. There have been no field surveys in the area of MIN 5320 and there are very few records of sites for the area generally. The sites Register is not a complete register of Aboriginal sites in Victoria and the prohibition on interference with relics applies whether or not they are on the Register.
The Government party has established and funds throughout Victoria an administrative program for the delivery of services to Aboriginal communities and for the protection of Aboriginal cultural heritage. The program is based on five regions. Each region has a board made up of representatives of local Aboriginal community organisations and bodies within the region. Each board employs staff and there are 21 currently employed throughout the State. Each region has a manager and a number of heritage protection officers. The Gippsland Cultural Heritage Board covers the area of MIN 5320. Within the Gippsland region there are seven ‘local Aboriginal community’ organisations established under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Of relevance are the Gippsland and East Gippsland Aboriginal Cooperative based in Bairnsdale (whose area includes MIN 5320) and the Moogjii Aboriginal Council East Gippsland Inc based in Orbost. Representatives from these local community organisations are entitled to participate in the Gippsland Cultural Heritage Board.
Aboriginal cultural assessment of the area of MIN 5320: Both factions of the native title party contended that no proper Aboriginal cultural survey had been carried out over MIN 5320 and that a condition should be imposed requiring one to be done. On 15 June 2001, Mr Flannery wrote to the AAV inquiring about the correct procedure for obtaining an Aboriginal cultural and heritage sites assessment for inclusion in his work plan. On 10 July 2001, AAV replied advising there were no records of Aboriginal archaeological sites on MIN 5320 but that it is located in an area that may be sensitive for Aboriginal cultural heritage values. It recommended that a thorough survey for Aboriginal and historic archaeological sites by a qualified archaeologist be carried out to locate, record and assess any sites which might be affected and provide recommendations for management of any significant ones. The letter said that it was normal practice for representatives of the Aboriginal communities to participate to assist the archaeologist and nominated the appropriate community organisation under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) as the Gippsland Aboriginal Co-operative Ltd at Bairnsdale. The then Regional Co-ordinator of the Gippsland Regional Cultural Heritage Program Mr David Hewat was identified as someone who may be able to assist with any enquiries. At about the same time as writing to AAV Mr Flannery approached the Gippsland Cultural Heritage Program and Mr Hewat agreed to carry out the assessment. This was done on 5 July 2001 before the AAV had replied to his letter.
David (Buzzy) Hewat and Barry Kenny (both of whom are of Aboriginal descent and members of the broad claim group) accompanied Mr Flannery to the treatment plant site, the King Cassilis area and MIN 5320 for the purpose of carrying out the assessment. After the inspection Mr Hewat provided Mr Flannery with a signed document headed ‘Cultural Heritage Assessment’ which Mr Flannery has included in his work plan. The document says that the Gippsland Cultural Heritage Unit has considered an assessment of the proposed works and recommends that they require no more investigation and can proceed. The document seems to be in a standard form which contains a number of other options including that an Aboriginal monitor be required during excavation; that the proposed works require more consideration and deliberation within the Aboriginal Community; and that the proposed works may proceed with recommendations. I can infer that Mr Hewat considered these options before deciding that no further survey was required.
An assessment of the type carried out by Mr Hewat and Mr Kenny is to determine whether further investigation and a more comprehensive survey is required. The initial assessments are carried out by a local Aboriginal community or sometimes AAV. If the assessment is that a cultural heritage survey is required, then the responsibility for conducting this rests with the development proponent. Mr Stewart Simmons agreed that the process adopted by Mr Flannery was consistent with the general practice and legislation in Victoria.

Both the Kurnai and Gunai factions complained about this process. Ms Mullett says that a proper Aboriginal heritage survey should be carried out. Mr Mullett said that the survey should be carried out by his son Ricky Mullett who is a heritage officer with the Gippsland Aboriginal Co-operative Ltd. Apparently Mr Hewat is associated with the Moogjii Aboriginal Council East Gippsland Inc based at Orbost which it was argued made it inappropriate for him to do the assessment even though he was employed as the Regional Coordinator of the Regional Gippsland Cultural Heritage Board. Both Stewart Simmons and Paul Simmons suggested that it could be a condition of the determination that a cultural heritage survey be carried out. In my view this is not necessary. Mr Hewat’s recommendations are consistent with the evidence in these proceedings which does not suggest that the area of MIN 5320 is an area or site of particular significance to the native title party in accordance with their traditions or that there are any sites, places or objects covered by Victorian legislation. Mr Flannery behaved conscientiously in trying to address Aboriginal heritage issues, is aware of his obligations and, in the highly unlikely event that any objects are discovered, will comply with the Archaeological and Aboriginal Relics Preservation Act 1972.
Conclusion in relation to areas or sites of particular significance: As I have found there is no evidence to establish that the area of MIN 5320 is or contains a site of particular significance which could be affected by the grant, it was strictly not necessary to consider the site protection legislation in Victoria. I have done so because it shows that areas or sites of particular significance, found to exist in a future act inquiry, will in all probability be protected by the existing State regime. This may be of importance in subsequent matters.

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

Neither the Gunai nor Kurnai factions opposed the grant but the Kurnai faction made the following contentions in relation to conditions:
‘We the Kurnai people understand that progress in inevitable. We wish to participate in the development of the area whoever we should also be the beneficiaries of what the land has to offer. We believe it is totally unreasonable for the Kurnai people to incur costs as a consequence of some organisation undertaking a commercially profitable project. We acknowledge that many organisations are aware of our rights and work with us to achieve mutually beneficial outcomes. We are very concerned at the behaviour of some organisations in our region. Our minimum requirements are:-
1)   To be provided with adequate funding to assess the impact of the project
2)   To be consulted and have final say on all cultural heritage issues
3)   To be provided with funding for any legal costs associated with the project
4)   To be fairly compensated for any work undertaken as a consequence of the project
5)   To be fairly compensated for the usage of our land
6)   To share in the profits from the land/project
7)   To be provided with funds to restore/manage the land upon completion of the project’
This is not a case where the evidence supports the imposition of any conditions. The grant of MIN 5320 will not adversely affect the enjoyment of native title rights or adversely affect the other matters referred to in s 39(1)(a).
The Tribunal does not have power to award compensation as a condition of a determination but can only direct that payment be made into trust on account to be paid out if a determination of compensation is made by the Federal Court. The Tribunal has declined to impose such a condition in all future act determinations to date (Western Australia/Richard Guy Evans & Others/Anaconda Nickel Ltd and Others, NNTT WF98/267, WF98/268 and WF98/270, Hon C J Sumner, 20 August 1999 at 14-23; Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales, NNTT NF01/1, John Sosso, 24 September 2001). Not all the factors mentioned in these cases are present here but it remains true that the law on determining compensation is unclear, there will be no immediate benefit for the native title party and the failure to impose a trust condition will not prevent the native title party subsequently making a claim for compensation in the Federal Court, if native title is determined to exist. In addition the lack of evidence of any effect of the grant on native title is a compelling reason for not imposing a trust condition. It is difficult to see, on the facts of this case, how any claim for compensation for the grant of MIN 5320 will succeed.
The Tribunal is prohibited from imposing a condition requiring payments to the native title party based on a share of profits (s 38(2) NTA).

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

I accept the Government party’s contentions that the grant of MIN 5320 will have economic significance to Victoria and the local community of Swifts Creek as mining production provides direct and indirect economic benefits to Victoria and particularly to regional economies. The Government party is strongly committed to revitalisation of rural Victoria and believes that a healthy mining industry which meets local community expectations on social and environmental impacts can contribute to this. Although not high in creating direct employment compared to other industries, mining contributes indirectly to employment through the injection of funds to local communities for the provision of goods and services. Exploration and mining can broaden the economic base of local communities from agriculture and other local industries. The grantee party will spend $150,000 on the Project in the first year and 1 million during the first 5 years. The Project will employ 4-6 people as treatment plant operators and additional subcontractors with up to 15 people being employed at the treatment site from time to time. Strictly the Tribunal is concerned in this inquiry only with MIN 5320 which on its own it is unlikely to have a great impact in the context of the Victorian economy as a whole. However it has significance as part of the overall Project which, if it proceeds, will bring economic benefits.

Section 39(1)(e) - public interest

The Tribunal finds, as it has in a number of previous determinations, that there is a public interest in the maintenance of a viable mining industry in Australia. In this matter the public interest would also be served by the rehabilitation of the natural environment and the removal of arsenic which currently contaminates Power’s Creek.

Section 39(1)(f) – any other matter that the arbitral body considers relevant

The Kurnai faction made the following contentions:
‘We the Kurnai have in good faith negotiated an agreement with VGM specifically for Mining Licence 5320.
We do not recognise the Gunai tribe as a legitimate group belonging to the Gippsland region. Mirimbiak erroneously put the tribe on the Native Title Claim with no proof of legitimacy. There is no historical evidence of the existence of this tribe. The Kurnai Elders do not recognise the Gunai people as having any association or relationship with the Kurnai clan and have signed a Statutory Declaration to that effect. Any co-agreements signed with this group gives legitimacy to their claim.
We believe that unless the Gunai people can provide supporting historical reference (pre 1900) as to the existence of their tribe and their co-relationship with the other five Kurnai tribes they should be removed from any negotiation in relation to this agreement.’
Comments on the dispute within the claimant group: It should be obvious to everyone involved in this inquiry that the Gunai/Kurnai native title claim is in a most unsatisfactory state. The conflict between the factions has manifested itself in the contentions and throughout the hearing. It is not my role to resolve this dispute and I made this clear to the parties throughout the inquiry. There can be no doubt that the conflict means that the right to negotiate provisions of the Act cannot function as Parliament intended particularly when an agreement cannot be finalised because the Kurnai faction will not sign the same agreement as the Gunai faction for fear of giving the Gunai faction some legitimacy on the claim. The native title party has also missed out on financial benefits available under Mr Flannery’s original proposal. I also suspect that there will be considerable difficulty in progressing the claim in the Federal Court. On the information provided to this inquiry I have considerable doubt whether registration of the claim would be justified if the decision were being made today.
Ms Pauline Mullett is a passionate advocate for the cause of the Kurnai faction and I have no doubt that her views are genuinely held. In her final submission she produced a number of books which she said justified her stance:

‘The Native Tribes of South-East Australia’ by A.W. Howitt;
‘Kamilaroi and Kurnai’ by Fison and Howitt;
‘The Kurnai of Gippsland’ by Pepper and De Arango;
‘Journey to Aboriginal Victoria’ by Aldo Massola; and
‘Jackson’s Track: memoir of a dreamtime place’ by Carolyn Landon & Daryl Tonkin.

I did not accept these books as evidence as they were produced to show that the Kurnai people were the proper claimants and that is not a matter with which I am directly concerned. However, I feel compelled to point out that if Ms Mullett is correct in her view that the area of the claim is the country of the Kurnai people only and that some people have been wrongly included on the claim then serious questions are raised about the future of the claim. I have made these comments constructively, in the hope that they will encourage the claim group members to resolve the issues arising in relation to their claim.

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

Part of the area is currently the subject of a right to occupy land for the purpose of an apiary under s 149 of the Land Act 1958 (Vic), which the Government party contended was a relevant matter under this topic. There is no evidence of how the authority is used or the extent of bee-keeping activity. In my view no weight should be given to this non-native title interest, even if there were evidence of the enjoyment of native title over the area. The purpose of s 39(2), which was introduced by the 1998 amendments, is to require the Tribunal to consider whether the rights and activities of non-native title parties have already had on impact on the matters referred to in s 39(1)(a) such that the future act under consideration will have no or only a limited further effect. An authority or a licence to an apiarist is not in itself inconsistent with the existence of native title. In my view there would need to be further evidence of the activities conducted under the authority before it could be said that there would be any measurable effect from bee-keeping activity on native title rights and interest.

General conclusion

The Tribunal’s task is a discretionary one involving weighing the various criteria in s 39 on the basis of evidence before it (Waljen at 165-166). The right to negotiate provisions of the Act attempt to balance the protection of native title rights and interests with the interests of the broader community (Waljen at 149-150). The weight of the evidence overwhelmingly leads me to conclude that MIN 5320 should be granted without conditions imposed by the Tribunal.
The area of MIN 5320 is relatively small, in a relatively remote location which is rarely frequented by members of the claim group. The effect of historical mining operations has, in a practical sense, been inconsistent with the continuing enjoyment of native title rights and interests. The evidence does not suggest that the grant of MIN 5320 and the proposed mining activities will have a further adverse effect on native title rights and interests or the other matters referred to in s 39(1)(a) of the NTA. The opposite is the case in that, after some temporary disturbance, rehabilitation of the area to native bushland will enhance the capacity in future for native title to be enjoyed. There are no sites of particular significance that will be affected and, in any event, the comprehensive Victorian Aboriginal relic protection regime makes it unlikely that any Aboriginal site would be affected by mining operations in that State. There will be some economic benefit, including to the local community, and an environmental benefit in the proposed rehabilitation of vegetation and removal of the arsenic contamination from the water course. The native title party in negotiations did not oppose the grant and it is unfortunate that an inquiry became necessary because of the problems with the Gunai/Kurnai claim. Conditions proposed by the native title party either cannot be legally determined under the Act or are not supported by the evidence.

Determination

The determination of the Tribunal is that the act, namely the grant of mining licence MIN 5320 to Victorian Gold Mines NL, may be done.

C J Sumner
Deputy President
4 July 2002