Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland - [2012] NNTTA 101

NATIONAL NATIVE TITLE TRIBUNAL

Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 101 (18 September 2012)

Application No: QF12/2

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

and

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

Xstrata Coal Queensland Pty Ltd, Sumisho Coal Australia Pty Limited,
ICRA Rolleston Pty Ltd
(Grantee party)

- and -

Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha, Carol McLeod & Anor on behalf of Karingbal #2 (First native title party)

Brendan Wyman, Patricia Fraser, Helen Coulahan, Sheryl Lawton, Keelen Mailman, Robert Raymond Robinson, Floyd Robinson, Randall Johnson and Robert Ernest Mailman on behalf of the Bidjara People (Second native title party)

- and -

State of Queensland (Government party)

FUTURE ACT DETERMINATION

Tribunal: Graeme Neate

Place: Brisbane
Date: 18 September 2012

Hearing Dates: 19 March, 17 April, 27 April, 30 April, 9 May 2012

Representatives:

First Native title party: Redmond & Redmond, Solicitors

Second native title party: Mr Trevor Hauff, Trevor Hauff Lawyers

Grantee parties: Mr Ben Zillmann and Ms Caitlin Wilson, Allens

Government party: Ms Sara Newrick, Lawyer, on behalf of the Department of Natural Resources and Mines

Catchwords: Native title – future act – proposed grant of Mining Lease – future act determination application – s 39 criteria considered – effect of act on native title parties’ registered native title rights and interests – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – any other matters the Tribunal considered relevant – determination that the act may be done.

Legislation: Aboriginal Cultural Heritage Act 2003 (Qld) ss 4, 8, 9, 10, 12, 23, 28, 44, 87

Acts Interpretation Act 1954 (Qld) s 36
Environmental Protection Act 1994 (Qld)
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Mineral Resources Act 1989 (Qld) ss 275, 276, 279, 281
Mineral Resources Regulation 2003 (Qld) s 18
Native Title Act 1993 (Cth) ss 29, 30A, 31, 35, 38, 39, 41, 48, 51, 52, 75, 109, 123, 151, 155, 237, 240
State Development and Public Works Organisation Act1971 (Qld) ss 26, 27

Cases:Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, [2006] NNTTA 3 (3 January 2006) Deputy President Sosso
Dragutin Horvatic/Scott Gorringe & Ors (Mithaka People)/Queensland [2010] NNTTA 119 (4 August 2010) Deputy President Sosso
Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 220 ALR 431
Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People /Queensland, [2010] NNTTA 210 (17 December 2010) Deputy President Sosso

R v Kearney; Ex parte Jurlama (1984) 158 CLR 426
Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9
Western Australia v Thomas (1996) 133 FLR 124
Western Australia/Judy Hughes and Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 (1 December 2004) Deputy President Sumner
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169

REASONS FOR DECISION

Introduction

On 8 February 2011, 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 Lease (‘ML’) 70415 (‘the proposed tenement’) to Xstrata Coal Queensland Pty Ltd (75%), Sumisho Coal Australia Pty Limited (12.5%) and ICRA Rolleston Pty Ltd (12.5%) (‘the Grantee party’) pursuant to the Mineral Resources Act 1989 (Qld). In accordance with s 29(5) of the Act, 30 March 2011 was specified as the notification day.
The notice stated that the grant of the proposed tenement would authorise ‘the holder to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term not exceeding twenty five (25) years, with the possibility of renewals for a term not exceeding twenty five (25) years’. The notice published in the Koori Mail on 9 March 2011 stated that the grant would be for a term not exceeding ‘thirty (30) years’ with the possibility of renewals for a term not exceeding ‘thirty (30) years’. No party took issue with the discrepancy between the original notice and the notice published in the Koori Mail. No party put in issue whether the notice was provided by the Government party in accordance with s 29 of the Act. I am satisfied that the notice was validly given and hence I have proceeded on the basis that the Tribunal can exercise its power to consider the present application.
The proposed tenement is described as being located some 16 kilometres north-west of Rolleston in Central Queensland, within the local government area of Central Highlands Regional Council. It is approximately 270 kilometres west of Gladstone and 120 kilometres south-west of Emerald. The approximate area of the proposed tenement is 6,271 hectares. If granted, the proposed tenement would form part of the expansion of the existing Rolleston Coal Mine located on ML 70307 and Mineral Development Licence 227.
The proposed tenement is one of four Mining Lease Applications made by the Grantee party as part of the Rolleston Coal Expansion Project which, if granted, might extend the life of the Rolleston Coal Mine by approximately 20 years to 2045 and increase production from 10 million tonnes per annum up to a total of 20 million tonnes per annum. The other Mining Lease Applications are MLA 70416, MLA 70418 and MLA 70458. Together they are described as the Rolleston Expansion Leases. The mining lease application area (of which the proposed tenement is a part) covers some 12,500 hectares. According to the Grantee party, construction would commence immediately following the grant of the proposed tenement, and there is the possibility that renewals of the tenement could be applied for in the future.
The proposed tenement is wholly within the external boundaries of two registered native title claims:
(a)the Karingbal #2 native title determination application (QUD23/2006) (‘the Karingbal #2 claim’) which was entered on the Register of Native Title Claims on 24 March 2006, and
(b)the Bidjara People native title determination application (QUD 216/2008) (‘the Bidjara claim’) which was entered on the Register of Native Title Claims on 12 September 2008.
For the purpose of these proceedings, the registered native title claimant for the Karingbal #2 claim is referred to as the ‘First native title party’ and the registered native title claimant for the Bidjara claim is referred to as the ‘Second native title party’. Those native title claims are the subject of proceedings in the Federal Court of Australia. I understand that a hearing in relation to those claims is scheduled to commence not earlier than March 2013.
For completeness I note that another overlapping native title claim was filed in the Federal Court on 29 August 2011 (Charles Stapleton & Ors on behalf of the Brown River People v State of Queensland QUD245/2011). That claim has not been accepted for registration under the Act, and hence the applicant is not a negotiation party and is not a party to these future act determination application proceedings. (Mr Stapleton is, however, also one of the persons who together comprise the First native title party.)
Although the proposed tenement has an area of 6,271 hectares, the Grantee party contends that native title rights have been extinguished over the majority of the area by previous grants of tenures. A table, ‘MLA 70415 Native Title Extinguishment Assessment,’ lists nine lots and two roads that together cover the area of the proposed tenement. The tenures include five fee simple parcels, one Grazing Homestead Perpetual Lease, one Grazing Homestead Freeholding Lease, one Perpetual Lease and one Lease of Preferential Pastoral Holding. According to the table, the grant of tenures between 1892 and 1986 extinguished native title over all but one parcel.
The only area where native title has not been extinguished is Lot 5055 on PH977, Lease of Preferential Pastoral Holding PPH 37/5055, known as the Mount Kelman pastoral holding. According to the table, the Preferential Pastoral Holding is not a previous exclusive possession act under the Act. It has an area of approximately 1,449 hectares, some 23 per cent of the area of the proposed tenement.
No party has taken issue with the Grantee party’s analysis of the effect of tenures on the extent to which native title might, or would not, be recognised in relation to parcels of land covered by the proposed tenement.
The First native title party and the Second native title party is each a negotiation party (s 30A). In effect, two sets of negotiations were conducted (or attempted) involving the Grantee party and, to a lesser extent, the Government party: negotiations with the First native title party and negotiations with the Second native title party.
No agreement was reached between the negotiation parties about the grant of the proposed tenement.
On 8 March 2012, Allens Arthur Robinson (now Allens), the legal representative of the Grantee party, lodged with the National Native Title Tribunal (‘the Tribunal’) pursuant to ss 35 and 75 of the Act, a future act determination application. The application was made more than six months after the notification day (see s 35(1)(a)).
On 9 March 2012, I was appointed as the Member to constitute the Tribunal for the purpose of conducting the future act determination application inquiry (see s 123(1)(c)).
A preliminary conference was convened on 19 March 2012. Directions hearings were held on 17, 27 and 30 April 2012 and a listing hearing was held on 9 May 2012. Representatives of parties attended in person or participated by telephone.
At the preliminary conference, the First native title party and the Second native title party each advised that it would contend that the Grantee party had not negotiated in good faith. Extensive written statements of contentions and evidence were provided to the Tribunal and the parties in response to directions made by the Tribunal in relation to the issue whether the Grantee party and the Government party negotiated in good faith with each native title party as required by s 31(1)(b) of the Act (the ‘good faith issue’). I was satisfied that I could make a decision in relation to the good faith issue by considering the documents provided to the Tribunal. In accordance with s 151(2) of the Act, and with the agreement of the negotiation parties, I decided not to hold a hearing in relation to the good faith issue, and proceeded to deal with it ‘on the papers’.
For the reasons published on 23 August 2012 ([2012] NNTTA 93) I was not satisfied that:
(a)the Government party did not negotiate in good faith with the First native title party
(b)the Grantee party did not negotiate in good faith with the First Native title party
(c)the Government party did not negotiate in good faith with the Second native title party
(d)the Grantee party did not negotiate in good faith with the Second native title party

as required by s 31(1)(b) of the Act.

Consequently, the Tribunal has power to exercise its jurisdiction in relation to the future act determination application brought by the Grantee party on 8 March 2012.

The issue now before the Tribunal is whether to make, in relation to the grant of the proposed tenement:
(a)a determination that the act must not be done, or
(b)a determination that the act may be done, or
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties (s 38(1)).
The parties provided written submissions to the Tribunal in relation to that issue. In summary:
(a)the Grantee party submits that the Tribunal should make a determination that the act be done
(b)the Government party submits that the Tribunal should make a determination that the act can be done
(c)the First native title party submits that the Tribunal make a determination that the act must not be done or that it may be done subject to conditions
(d)the Second native title party makes no explicit submission in terms of s 38(1), but makes submissions in relation to matters the Tribunal must take into account when making a determination.

Statutory requirements

Central to the scheme by which the Tribunal makes a determination about whether the future act may or must not be done are the requirements of s 39 of the Act. Subsections (1) and (2) of that section provide:
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.
The Tribunal has long accepted that its task involves weighing the various criteria in s 39(1) by giving proper consideration to them on the basis of evidence. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them. Indeed it is apparent that the Tribunal is required to take into account quite diverse and what may sometimes be conflicting interests in coming to its determination. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence (see Western Australia v Thomas (1996) 133 FLR 124 at 165–166; Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169 at [37]).
The Tribunal has taken the approach that there is no burden or onus of proof on a party to satisfy the Tribunal that the proposed future act should or should not be done. The Tribunal is not bound by the rules of evidence (s 109(3)) and adopts a commonsense approach to evidence. So, for example, where facts may be peculiarly within the knowledge of a party to an issue that party might be expected to produce evidence as to those facts. That does not mean that the party bears an evidential onus of proof. The parties have an evidentiary choice to lead or not lead evidence on a particular issue. It is for the parties to present all the evidence readily available to them and for the Tribunal to examine the available material. A party’s failure to produce evidence as to facts peculiarly within its knowledge may lead to an unfavourable inference being drawn when the Tribunal, as an administrative body, applies its commonsense approach to the evidence. In other words, if parties fail to produce such evidence, they cannot complain if the Tribunal gives little or no weight to their contentions. Although the Tribunal can, in appropriate cases, make its own inquiries, it is not under a general obligation to do so. As a matter of general practice, where (as in this case) parties are represented before the Tribunal, it would not do so (see Western Australia v Thomas (1996) 133 FLR 124 at 155–163; also Western Australia/Judy Hughes and Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 (1 December 2004) Hon CJ Sumner at [18], [19] and [49]).
There is a degree of overlap between some criteria in the subparagraphs of s 39(1)(a). Consequently, the evidence and submissions for one criterion (e.g. in relation to sites and areas of significance in accordance with the native title parties’ traditions) can be relevant to one or more other criteria (e.g. the enjoyment of native title rights and interests, or freedom of access to the area concerned for ceremonial or other culturally significant activities). In these proceedings, the consideration of some criteria involves a degree of repetition or some cross-references to other parts of the reasons for decision.
Subsection 39(4) provides:
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.

The operation of this sub-section in relation to these proceedings is considered at [194]–[196], below.

The future act in a factual and legal context

Given that the Tribunal must take into account the criteria listed in s 39(1) as they relate to the grant of the proposed tenement, it is necessary to consider the evidence and submissions about the proposed tenement in relation to each of them. To some degree the evidence in relation to those criteria should also be considered in light of the surrounding factual context and in the context of relevant Queensland legislation and s 39(2) of the Act.
Factual context: The proposed tenement is one of four MLAs which, if granted, will allow the expansion of the existing Rolleston Coal Mine. The grant of the proposed tenement is the sole subject of these proceedings because it is the only one of the four MLA areas comprising the Rolleston Expansion Leases which includes land or waters where native title might be recognised. If native title is recognised, that recognition will possibly be confined to the part of the Mount Kelman pastoral holding that covers a portion of the proposed tenement. Those circumstances and the relevant provisions of the Act have led to an understandable but somewhat artificial focus on the Mount Kelman portion. However, the grant of all of the proposed tenement is in issue here, and that tenement should not be considered as if divorced from the broader expansion project of which it is a part.

The Second native title party’s contentions go further, submitting that the proposed tenement cannot be isolated from the adjoining and nearby leases that have already been granted to the Grantee party. The grant of the proposed tenement will, it submits, ‘considerably ramp up the gouging of the earth with open cut mining methods’ with a consequent loss of access to and enjoyment of that land by the Second native title party. Even if that is the case, the subject of these proceedings is only whether the proposed tenement may or must not be granted.
The focus of these proceedings can also be characterised as somewhat artificial from the standpoint of the native title parties who claim to have native title rights over large areas (7,110 square kilometres in the case of the Karingbal #2 claim, and 116,010 square kilometres in the case of the Bidjara claim). At this stage it is not possible to say whether native title rights and interests will be recognised in relation to either claim area (or both claim areas) or where, within the boundaries of either or both of the claims, native title will not be recognised. Suffice to say that the area of interest in these proceedings is a small proportion of the area claimed by each native title claim group. It is located near the north-eastern boundary of the Bidjara claim and in the central northern part of the Karingbal #2 claim.
Queensland legislation: In considering the matters listed in s 39(1) it is useful to bear in mind the legislative context in which mining leases are granted and the general conditions imposed on them.
As the Government party’s statement of contentions notes, the grant of mining leases is governed by Part 7 of the Mineral Resources Act 1989 (Qld) (‘the MRA’). The general conditions imposed on mining leases are set out in s 276 of the MRA, and s 18 of the Mineral Resources Regulation 2003 prescribes further conditions in that regard.
Those contentions also state that, in addition to the requirements of the MRA, environmental regulation of mining activities in Queensland is dealt with under the Environmental Protection Act 1994 (Qld) (‘EPA’). Under the EPA, the Grantee party is required to hold an environmental authority in relation to the proposed activities to be undertaken under mining leases. Such an authority is subject to, among other things, the Grantee party complying with each of the relevant standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects (a copy of which is Annexure 14 to the Government party’s statement of contentions). Failure to comply with those conditions or any additional conditions is a breach of the environmental authority and the holder is liable to various compliance enforcement actions under the EPA. Matters dealt with in the Code include requirements to minimise disturbance to land and vegetation and not to carry out activities within 100 metres of an identified historical, archaeological or ethnographic site. Some other conditions will be cited later in these reasons.
The Aboriginal Cultural Heritage Act 2003 (Qld) (‘ACHA’) imposes a duty of care on the Grantee party in relation to Aboriginal cultural heritage. That means 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’ (ACHA s 23(1)). ‘Aboriginal cultural heritage’ is defined to mean anything that is a significant Aboriginal area in Queensland, or is a significant Aboriginal object, or is evidence, of archaeological or historic significance, of Aboriginal occupation of an area of Queensland (ACHA s 8). The expressions ‘significant Aboriginal area’ and ‘significant Aboriginal object’ are also defined (ACHA ss 9,10). 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 complied with the cultural heritage duty of care. Further, s 28 of the ACHA provides that the Minister may, by gazette notice, notify 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. Those guidelines were gazetted on 16 April 2004.
Existing non-native title rights, interests and use – s 39(2): In determining the effect of the grant of the proposed tenement as mentioned in s 39(1)(a), the Tribunal 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 (s 39(2)).
Existing non-native title rights and interests: As noted in [8], the area of the proposed tenement is covered by nine lots and two roads. The tenures include five fee simple parcels, one Grazing Homestead Perpetual Lease, one Grazing Homestead Freeholding Lease, one Perpetual Lease and one Lease of Preferential Pastoral Holding.
Detailed information about those tenures was provided in the form of tenure searches and maps as annexures to the statements of contention by the Government party (Annexures 11(a)-(q) and (12 (a) and (b)) and by the Grantee party (Annexure 1). Those documents show that Xstrata Coal Queensland Pty Ltd (‘XCQ’) is the owner of three of the fee simple parcels (Lot 4 RP 617701, Lot 4 SP 170740, Lot 1 SP 164068) and is the holder of the pastoral lease over Lot 5055 on PH977 (Mount Kelman pastoral holding) as trustee for the Grantee party, having purchased the interest in February 2012. It is also the lessee of Lot 18 RP 617697. The Grantee party owns one of the fee simple parcels (Lot 1 SP 174071).
The cumulative effect of current and former tenures appears to be that native title has been completely extinguished, that is, it will not be recognised under current Australian law (see Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 220 ALR 431 at [64]), in respect of all but 1,449 hectares of the proposed tenement. Furthermore, it appears that, as a matter of law, only some native title rights and interests might be recognised in relation to those 1,449 hectares. In other words, there would not be a determination that native title rights confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.
It is also relevant to note that both the Karingbal #2 claim and the Bidjara claim expressly exclude from the land and waters claimed those areas that are subject to previous exclusive possession acts, including scheduled interests and freehold land validly granted (one claim specifies such grants before 23 December 1996). Consequently, they do not claim to hold native title rights in relation to areas currently or previously subject to the current or previous tenures within the boundary of the proposed tenement other than the portion within Lot 5055 on PH977, i.e. the Mount Kelman pastoral holding.
Existing use by persons other than native title parties: The area of the proposed tenement consists of flat to slightly undulating terrain that has been used over a prolonged period for beef cattle grazing, and is used primarily for cattle grazing or pastoral purposes. In particular, the Mount Kelman pastoral holding is currently used primarily for cattle grazing. Tenure documents provided to the Tribunal by the Grantee party show that the property has been subject to some form of pastoral lease almost continuously since 1905. As noted earlier, XCQ is the current registered holder of the pastoral lease over Lot 5055 on PH977 as trustee for the Grantee party, having purchased the interest in February 2012.
There are extensive mining and petroleum tenements over the land including and surrounding the proposed tenement.
According to the Grantee party, the area of the proposed tenement is currently subject to the following mining and petroleum tenements:
(a)Exploration Permit for Coal Number 538 (EPC 538), which is held by XCQ (a member of the Grantee party) and authorises the conduct of exploration activities;
(b)EPC 595, which is held by XCQ and authorises the conduct of exploration activities;
(c)EPC 737, which is held by XCQ and authorises the conduct of exploration activities; and
(d)EPP 576, which is held by OME Resources Australia Pty Ltd (which is wholly owned by Pure Energy Resources limited, and not related to the Grantee party or its members).

Details of those tenements were provided with the statement of contentions by the Grantee party (Annexure 2). The Government party also provided information about those and three neighbouring EPCs (885, 1463 and 1517) with its statement of contentions (Annexures 8, 9 and 10(a)–(g)).

There are also extensive mining tenements (or applications for tenements) covering the land near the proposed tenement (in addition to the other Rolleston Expansion Leases). Historical mining tenements over the area of the proposed tenement include EPCs, exploration permits for minerals, and eight exploration permits for petroleum. Evidence in relation to these tenements was provided with the statements of contentions of the Grantee party (Annexure 2) and of the Government party (Annexures 6 and 7).
In addition to the mining and petroleum tenements, there is an electricity easement burdening the area of the proposed tenement. Lot 1 on SP 174071 is burdened by Easements K & L to Ergon Energy Corporation Limited (ACN 087 646 062), for the purpose of electrical works.
Although the First native title party accepts that mining activity has occurred in the past and that, particularly, exploration activity continues in the application area, it contends that there has not been large scale mining of the kind now envisaged by the Grantee party.
In summary, the area of the proposed tenement is (and has been) the subject of a variety of non-native title rights and interests, including roads, tenures (most of which extinguish native title) and exploration permits for minerals, coal and petroleum. The area is, and has been, used for more than a century for beef cattle grazing. It is, and has been, used for mineral and petroleum exploration activities. Large parts of the area have been substantially cleared.

The effect of the act on the enjoyment by the native title parties of their registered native title rights and interests – s 39(1)(a)(i)

The focus here is on the effect (if any) of the grant of the proposed tenement on the enjoyment of ‘registered’ native title rights and interests for that area.
The Register of Native Title Claims contains information about specified native title rights and interests claimed over areas where a claim to exclusive possession cannot be registered for the Karingbal #2 claim or for the Bidjara claim. Some of those rights and interests are common to both claims and are expressed in similar terms (e.g. the rights to access, camp on, erect shelters on, move about on, and hunt and fish on, the application area, as well as the rights to participate in cultural activities on, and maintain and protect places of traditional importance in, the application area). Other registered native title rights and interests are particular to one claim or the other.
In the case of the First native title party, they include the native title rights to:
(a)inherit and transmit the native title rights and interests
(b)live on the area covered by the application
(c)protect and care for the natural or cultural resources of the area covered by the application
(d)care for the area for the benefit of the native title holders
(e)take and use the waters and other resources accessed in accordance with traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs
(f)use the area covered by the application for ceremonial, cultural, social, customary, religious and traditional purposes, and
(g)transmit knowledge of culture, including knowledge of particular sites in the area covered by the application.
In the case of the Second native title party, the registered native title rights and interests include to:
(a)exist on the application area
(b)hold meetings on the application area
(c)gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs, and
(d)conduct ceremony on the application area.
The First native title party’s submissions: The First native title party’s submission states that the Karingbal People’s native title rights and interests are claimed over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title). That much is clear from the Karingbal #2 claim (although that part is not on the Register of Native Title Claims). However, their submission goes on to state that the Karingbal People claim the right to possess, occupy, use and enjoy the lands and waters of the mining lease application area as against the whole world, pursuant to their traditional laws and customs. Given the effect of the current and historical tenures in relation to the area of the proposed tenement (in respect of which the First native title party made no contention), it would appear unlikely that exclusive native title rights and interest could be recognised in respect of any of the land or waters within the boundary of the proposed tenement. However, that is a matter for the Federal Court to determine.
The First native title party’s submission states that, over those areas covered by the proposed tenement where non-exclusive native title is recognised, the Karingbal People claim the following native title rights and interests:
(a)to speak for, on behalf of and authoritatively amongst Aboriginal people about the area covered, in accordance with traditional laws and customs
(b)to inherit and transmit the native title rights and interests
(c)to maintain and protect sites and areas within the area which are of significance under traditional laws and customs, and
(d)to transmit knowledge of culture, including knowledge of particular sites in the area.

As will be apparent from [46] and [47], the right listed in paragraph (a) is not one of the claimed rights that has been registered, and those other native title rights and interests are just some of the First native title party’s registered native title rights and interests.

The First native title party submits that, notwithstanding statements about ‘non-extinguishment’ of native title, the proposed open cut mining will ‘significantly affect’ native title rights to access and use the land and waters to which the native title rights and interests relate.
The submission refers to the Public Notice for the Draft terms of Reference for an Environmental Impact Statement (‘EIS’) for the proposed project which states that it is anticipated that up to10 open cut pits would be created or extended, and anticipated environmental impacts would include: loss of vegetation of state significance; including regional ecosystems, essential habitats, high value regrowth vegetation, loss of threatened ecological communities and flora, dewatering of local groundwater aquifer, creek diversions and impacts on agricultural lands.
The First native title party submits that the region in which the mine is located has long been, and continues to be, an area of importance to Karingbal People, and that sites of cultural importance to Karingbal People exist in the proposed tenement area. Evidence concerning cultural sites is considered later in these reasons (see [103]–[142]). It is enough to note here that some of the areas registered under the ACHA extend into the area covered by the proposed tenement but that the art sites and artefacts marked on the maps provided to the Tribunal by the First native title party are located away from the area of the proposed tenement.
In the First native title party’s submission:
the Karingbal People continue to possess customary rights to land that have existed long before European settlement of the area which includes the proposed mining lease. Their histories, recollections and identifications all refer to the area which will be effected [sic] by the proposed mining lease activities. The Karingbal People’s histories, recollections and identifications all refer to the area. The association of predecessors of members of the Karingbal People is recorded in ethnographic materials and historical records. The Karingbal People has a continuous association with the area which is demonstrated in summary by:
(a)the assertion of ownership of the area according to traditional laws and custom, by members of the Karingbal People;
(b)the fact that some lived and worked in the area and members of the Karingbal People continue to visit the area;
(c)the possession of knowledge in relation to the area which has been passed on from their ancestors; and
(d)active involvement in protection and management of the claim area and sites of cultural significance (paragraph 7).
In that context, the First native title party submits that the effect of the grant of the proposed tenement on the Karingbal People’s traditional laws and customs will be ‘extraordinary’ because of the proposed mining lease activities. It also submits that:
(a)the Project will adversely affect the Karingbal People’s right to pass on traditional knowledge to young people through restriction of access to the area
(b)the proposed mining operation is a fundamental breach of Karingbal tradition and law
(c)the Project will have significant effect on the physical enjoyment of native title rights and interests that are of a kind that can be exercised on the relevant land.
On the evidence before the Tribunal, it is difficult to see how those contentions can be sustained. Apart from the First native title party’s native title claim and the submissions in these proceedings, there is no material before the Tribunal about the histories, recollections and identifications that refer to the area of the proposed tenement (or even the larger area of the Rolleston Expansion Leases). Nor is there evidence in these proceedings that some Karingbal People lived and worked in that area and that some continue to visit the area; or that Karingbal People possess knowledge in relation to the area that has been passed on from their ancestors, and that Karingbal People are actively involved in protecting and managing that part of the claim area that includes the area of the proposed tenement and any sites of cultural significance there. Consequently it is difficult to determine as a matter of fact which of their registered native title rights and interests are or have been exercised on or near the area of the proposed tenement, and hence it is difficult to say what effect the grant of the proposed tenement would have on that exercise.
The Second native title party’s submissions: The Second native title party submits that the grant of the proposed tenement would have a ‘substantial’ effect on the enjoyment of the Second native title party’s native title rights and interests because:
(a)access to the land (for such activities as hunting, fishing, camping and cultural activities) will be limited
(b)there will be limited opportunity for gatherings of the Second native title party on country, and
(c)there will be major disruption to life generally from such things as the open cut coal mines, removal of large quantities of coal, dust and noise generated by coal trains, and the increased cost of living.

The submission is premised on the native title rights and interests of the Second native title party having been ‘maintained up to the present day’, and the land having been used for hunting, fishing and camping. There is no evidence before the Tribunal of such activities having been conducted, or native title rights and interests being enjoyed, by the Second native title party on the area of the proposed tenement.
In summary, it will be clear from the preceding paragraphs, and from the discussion later of other criteria in s 39(1)(a), there is little evidence that supports the contentions of the native title parties in relation to the effect of the grant of the proposed tenement on their enjoyment of their registered native title rights and interests.
The Grantee party’s submissions: The Grantee party makes three main points. First, it is not aware of the extent to which, (if at all), the native title parties enjoy or exercise any native title rights or interests over the area of land within the proposed tenement that is the subject of the native title claims. The Grantee party therefore cannot state the effect of the proposed tenement on the enjoyment of those rights and interests. Nonetheless, the Grantee party anticipates at least some of the effects of the grant on the exercise and enjoyment of native title rights and interests. The Rolleston Coal Expansion Project will involve open cut mining. Consequently, while the Grantee party is engaged in mining land in relation to which native title rights may not have been extinguished, the area will be substantially disturbed and the Grantee party will be required to restrict entry to the land being mined as a matter of safety and practicality. At other times, such as before mining takes place in the area, if sufficiently distant from the area, or after rehabilitation has been completed, the types of native title rights that could co-exist with a pastoral lease (e.g. native title rights to hunt and gather natural resources for personal use) are ‘unlikely to be impacted or restricted to any greater extent’ and could continue to be exercised.
Second, because native title has been extinguished, and is not claimed, over the majority of the area of the proposed tenement, the grant of the proposed tenement will have no impact on native title rights for the large area where no such rights exist.
Third, as the Tribunal has determined previously, Queensland’s legislative framework for the grant of mining leases (including the MRA, the EPA and the ACHA) ‘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’ (see Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), [2006] NNTTA 3 (at [38]), cited in Dragutin Horvatic/Scott Gorringe & Ors (Mithaka People)/Queensland [2010] NNTTA 119 (4 August 2010) (at [15]). As noted earlier (see [31]) pursuant to the EPA, the Grantee party will be required to obtain an environmental authority for the Rolleston Coal Expansion Project, including in relation to the grant of the proposed tenement. The environmental authority will include conditions to ameliorate the effect of the mining lease on the wider environment. To obtain the environmental authority, the Grantee party must undertake and complete an EIS, which involves a comprehensive assessment of the environmental impacts of the project and how these will be mitigated. The EIS process involves a consultation process with the wider community and with government, as well as assessment by the State. An environmental authority can only be granted once such a process is completed and its conditions will be informed by that process. In particular, the environmental authority will include obligations requiring the Grantee party to rehabilitate the areas of the Mining Lease that are disturbed by mining or mining infrastructure to a standard approved by the State (see [192]).
It should also be noted that the Code of Environmental Compliance for Mining Lease Projects provides that the holder of the environmental authority must not cause an unreasonable release of dust and must not cause unreasonable noise at a noise sensitive place, such as a dwelling (Condition 4). The Code also provides that the holder of the environmental authority must not carry out activities within 100 metres of an identified historical, archaeological or ethnographic site (Condition 15). Given the definitions of those terms in the Code and the fact that the Code is dated 2001 (before the ACHA commenced), it is not clear whether the Code has the potential to provide supplementary protection to that offered by the ACHA and, in particular, by a Cultural Heritage Management Plan (‘CHMP’), discussed later in these reasons (see [138]–[139]).
It appears that any impact of the mining activity on the enjoyment of native title rights and interest is likely to be felt progressively. In his affidavit, Bernard Francis O’Neill, Group Manager, Open Cut Projects, XCQ, states that the total area of disturbed land within the area of the proposed tenement is expected to be approximately 4,000 hectares (or 64 per cent) over the life of the mine. It is anticipated that, within the Mount Kelman portion of the proposed tenement, some 1,200 hectares of land will be disturbed. However, mining will occur progressively over the mining lease area over its term; that is, not all areas will be mined at once. Disturbance will be higher on average in the earlier years because of the need to establish external dumping areas and the services and infrastructure areas. The disturbance of that land will likely involve disturbance of approximately 100 hectares per year after the initial construction and mining infrastructure is established. Whilst mine plans require flexibility and circumstances can change, the mining activities within the Mount Kelman portion of the area are currently anticipated to take place over a period of approximately 15 years. The mining activities that will occur on the Mount Kelman portion of the land will involve the establishment of pits to undertake open cut coal mining, and the construction of supporting infrastructure in the immediate vicinity of those pits, such as haul and access roads and other service areas for power supply, creek diversions, levee banks and infrastructure.
It should be noted that the Code of Environmental Compliance for Mining Lease Projects provides that the holder of the environmental authority must consult with the landowner prior to establishing any new roads and tracks or any campsites (Conditions 17 and 19). Schedule 3 of the EPA defines ‘owner’ of land to include, for land where there is a native title holder under the Act, each registered native title party in relation to the land. Consequently, there is the possibility that if either or both of the native title parties succeeds with their claim before new roads, tracks or campsites are established, the Grantee party would have to consult with them about the location of such roads, tracks or campsites.
Because the Mount Kelman portion of the land is on the boundary of the proposed tenement, some of the land closest to the boundary will remain undisturbed. It is required as a ‘buffer’ area between the actual mining operations and the boundary of the mining lease to enable the safe conduct of mining operations in compliance with likely environmental conditions (e.g as to noise).
Plans annexed to Mr O’Neill’s affidavit show the progressive locations of the anticipated mining and associated activities (e.g. proposed pits, out of pit dumps, proposed stockpiles and rehabilitation) on the area of the proposed tenement, including the portion covered by Mount Kelman pastoral holding.
Although it is unaware of what native title rights (if any) are enjoyed or exercised over the area of the proposed tenement, the Grantee party submits that the grant of the proposed tenement is ‘unlikely to have a significant impact’ on the native title parties’ enjoyment (if any) of the native title rights in the area. That conclusion can be reached, the Grantee party submits, having regard to:
(a)the fact that native title has been extinguished over most of the area of the proposed tenement, with less than a quarter of that area subject to possible native title rights
(b)the existing pastoral holding and longstanding pastoral use of the land that exists over the Mount Kelman area (where native title might still exist) and the result that, although no native title determination has yet been made, only ‘non-exclusive’ native title rights might continue to exist
(c)the Queensland legislative framework concerning mining activities (as mentioned above) including the statutory obligations under the EPA that will apply to the mining lease and the activities undertaken pursuant to it and the operation of the ACHA
(d)the fact there are no Aboriginal communities situated on the area subject to the proposed tenement or in close proximity to it
(e)the relatively small part of the native title parties’ claim areas that fall over the area of the proposed tenement
(f)prior exploration activities on the area of the proposed tenement
(g)the area where some native title rights may still exist is subject to land tenures previously and currently held by parties other than the native title parties that would have affected either the existence or the enjoyment of the native title parties’ registered native title rights and interests
(h)the extensive mining interests and uses in land surrounding the subject land
(i)the temporary nature of the proposed tenement and more specifically the mining activities on the Mount Kelman portion of the area (being the only area where native title rights might exist), and
(j)the operation of the non-extinguishment principle on the grant of the proposed tenement (see Grantee Party’s statement of contentions in support of ML 70415, paragraph 33).
The Grantee party put into evidence extracts from W Ross Johnston et al, Bauhinia One Hundred Years of Local Government (1979) (pages 14 to 27) as well as the following documents:
·Queensland Treasury, Historical Register of Local Government Names, Queensland, 1859 to 2008-9
·Australian Bureau of Statistics, 2006 Census Quick Stats: Rolleston (Bauhinia Shire)
·Queensland Treasury, Synthetically Estimated Indigenous ERPs (QRSIS database maintained by the Office of Economic and Statistical Research).

The historical material describes the increase in the non-Indigenous population in the Springsure region from the 1870s and the extensive pastoral activities (primarily sheep and cattle grazing) as well as some fossicking and agriculture. The material records the expansion of road, telegraph and railway in the region and the provision of other services in the 1870s.

With respect to the matter noted in paragraph [68](d), the Grantee party provided evidence to demonstrate that, in addition to the extensive history of pastoral activities on Mount Kelman, the area around Rolleston and Springsure also have a long history of non-Indigenous settlement. These areas form part of the Central Highlands Regional Council (which was, prior to 2008, the Bauhinia Shire Council). Of the 2,376 people resident in the former Bauhinia Shire Council area in the 2009-2010 financial year, it was estimated that 2,300 (or 97 per cent) were non-Indigenous. Although a footnote to that figure suggests that it should be used with caution, the 2006 census statistics show six people in Rolleston (or 2.8 per cent of the population) as Indigenous persons.
There is no evidence before the Tribunal as to how many of the Aboriginal people living in the former Bauhinia Shire Council area are Bidjara or Karingbal People. The part of the First native title party's submission in relation to their continuous association with the area simply states that 'some lived and worked in the area and members of the Karingbal People continue to visit the area'. The Second native title party’s submission states that ‘a number’ of Bidjara people live in ‘the area’ which was the birthplace of one of their ancestors, Mr Willie Langlo. It also states that 'most' of the local Aboriginal people are 'SNTP people', i.e. Bidjara.
The Government party’s submission: The Government party is not aware of any information indicating that the grant of the proposed tenement would be likely to affect the enjoyment by the native title parties of their registered native title rights and interests. This is a matter for the native title parties to address.
In any event, and in terms similar to those used by the Grantee party, the Government party contends that the grant of the proposed tenement is not likely to affect the enjoyment by the native title parties of their native title rights and interests because of the following factors:
(a)the statutory restrictions under the MRA and the EPA that will apply to ML 70415 and the activities undertaken pursuant to it
(b)the operation of the ACHA
(c)there are no Aboriginal communities situated on the area subject to ML 70415 or in close proximity to it
(d)the limited area of ML 70415 compared to the area contained within the external boundary of the native title claims
(e)the area subject to ML 70415 has been subject to prior exploration activities which may have already affected the native title parties’ enjoyment of their registered native title rights and interests
(f)the underlying tenure is subject to interests held by third parties, namely freehold and leasehold interests, that could have affected either the existence or the enjoyment of the native title parties’ registered native title rights and interests, and
(g)the activities of third parties conducted within the vicinity of ML 70415 which could interfere with the enjoyment of the registered native title rights and interests (statement of contentions on behalf of the Government party paragraph 6.2).
Conclusion: The effect on the enjoyment by the native title parties of their registered native title rights can only be assessed on the evidence before the Tribunal. On the basis of that evidence, it appears that (although this is a question which the Federal Court would have to determine) if either or both of the native title parties can prove their claim, native title will not be recognised over most of the area of the proposed tenement. With respect to that part of the proposed tenement where native title rights and interest might be recognised, such recognition would probably be limited to those native title rights and interests that can exist alongside the rights of the holder of a Preferential Pastoral Holding. Even if such native title rights have not been exercised on that part of the proposed tenement in recent years (e.g. as a consequence of other people holding tenures over that and adjoining parcels of land and conducting grazing and other activities there) that does not necessarily mean that some or all of those native title rights and interests would not be exercised in the future, if they are recognised in a determination of native title. The evidence indicates that few Aboriginal people reside in the local government region, and there is no evidence as to how many of them are Bidjara or Karingbal People. There is no evidence as to how many people would want to exercise their registered native title rights and interests on the area of the proposed tenement. There is no evidence to suggest whether or how the enjoyment of their registered native title rights and interests elsewhere would be affected by the grant of the proposed tenement.
On the case most positive to the native title parties (and with relatively little evidence to rely on), the most that can be said is that the enjoyment of some of the registered native title rights in relation to part of the area of the proposed tenement would be restricted or prevented as a consequence of open cut mining and associated activities on parts of that area, and such restrictions would continue for up to 15 years while the mining activities were undertaken or rehabilitation work was being completed.

The effect of the act on the way of life, culture and traditions of any of those parties – s 39(1)(a)(ii)

The Grantee party was unable to state the effect of the proposed tenement on the way of life, culture and traditions of the native title parties. It has no information pertaining to those matters but submits that, having regard to the factors set out in paragraph 33 of its submission, and paraphrased in [68] of these reasons, the grant of the proposed tenement is ‘unlikely to have a significant impact’ on the way of life, culture or traditions of the native title parties.
Similarly, the Government party is not aware of any information indicating that the grant of the proposed tenement would be likely to affect the way of life of the native title parties. This is a matter for the native title parties to address. In any event, the Government party contends that the grant of the proposed tenement is not likely to adversely affect the way of life of the native title parties because of the factors set out at [73].
The First native title party's submission refers to the effect which the proposed open cut mining would have on native title rights to access and use the land and waters to which the native title rights and interests relate. It asserts that the Karingbal People continue to possess customary rights to land (including the area of the proposed tenement) which existed long before European settlement and they have a continuous association with the area. Their 'histories, recollections and identifications all refer to the area'. They describe the proposed mining operation as a 'fundamental breach of Karingbal tradition and law', and contend that the proposed mining lease activities will have an 'extraordinary' effect on their traditional laws and customs, because the Project will adversely affect the Karingbal People's right to pass on traditional knowledge to young people through restriction on their access to the area.
That submission would have more force if there was evidence that the Karingbal People have continued to enjoy access to and use of the proposed tenement for such things as passing on traditional knowledge. The absence of such evidence might be a result of the history of European settlement in the region and, in particular, the nature of the tenures granted in relation to the area covered by the proposed tenement and the exercise by the holders of those tenures of their legal rights. Put simply, there is no evidence that the Karingbal People visit the land or that they have done so in recent years (other than for limited purposes in relation to the possible grant of the proposed tenement). Nor is there evidence that there are sites of particular significance on the proposed tenement that are integral to the way of life, culture and traditions of the First native title party (a matter considered later in these reasons at [111]–[115] and [119]–[137]). Rather, the submission refers to the cultural and environmental impact of the proposed mining activity on Meteor Creek and the Lagoonal Area, places 'which are very significant areas to the Karingbal People' but which are outside the area of the proposed tenement.
The Second native title party takes a different approach to this issue, submitting that the expansion of open cut mining onto the proposed tenement area and adjoining MLA areas such that the Rolleston Coal Mine can deliver over 20 million tonnes of coal each year will ‘substantially’ affect the way of life for local Aborigines, ‘most of whom’ are Bidjara People. The anticipated causes of the ‘enormous disruption’ include blasting, transport by trucks to the rail line, constant rail traffic, and ‘extra manpower’ with its effect on the availability and price of accommodation, utilities, traffic congestion, competition for scarce resources and schools. The consequences of such activities are also said to include restricting gatherings generally and on country. In particular, it is submitted, the opportunity for cultural activities and gatherings on country will be substantially restricted due to:
(a)restricted access to the land as a result of mining activities
(b)difficulties in finding suitable accommodation and camping facilities, particularly on country, due in part to such facilities being overtaxed with the influx of people to conduct mining activities.

Conclusion: Again, there is little evidence to support the contentions of the native title parties. On a literal reading of s 39(1)(a)(ii), the issue for the Tribunal to consider is the effect of the grant of the proposed tenement on the way of life, culture and traditions of any of the native title parties. In the absence of any evidence to demonstrate that the native title parties have enjoyed access to and use of the area covered by the proposed tenement (or even the Mount Kelman portion of it) there is nothing to suggest that their way of life will be affected at all by the grant. For the reasons given at [74] and [75], and the conclusions in relation to sites and areas of particular significance at [141]–[142], the most that can be said is that the grant would allow mining and related activities that might lead to restrictions on the enjoyment of some native title rights and interest in relation to parts of the area of the proposed tenement where native title might be held to exist, and that the restrictions might continue for periods up to about 15 years. Even so, there is no evidence that the grant would have a significant impact on the culture and traditions of the native title parties.
Even if s 39(1)(a)(ii) is read to refer to all of the Rolleston Expansion Leases, the conclusions for which the Second native title party contends are not self-evidently correct and there is no evidence before the Tribunal to support them.
Any broader disruption to and effects on the way of life of local Aboriginal people of the kind suggested by the Second native title party as a consequence of the Rolleston Coal Expansion Project will be shared by the local community generally and (given the scant information about how many Bidjara and Karingbal people live in the vicinity of the mine and associated infrastructure or Rolleston) not by the native title parties primarily or alone. The potential effects of the Project on the wider community, and plans for their mitigation, should be dealt with as part of the EIS process (see [178]-[182]).

The effect of the act on the development of the social, cultural and economic structures of any of those parties – s 39(1)(a)(iii)

The Grantee party is unable to state the effect of the proposed tenement on the development of the native title parties’ social, cultural and economic structures. It has no information pertaining to those matters, but states that the grant of the proposed tenement ‘will be likely to provide employment opportunities for the local community as well as flow on economic benefits to the local region’, and therefore the native title parties ‘will have an opportunity to share in those opportunities which could have a positive effect on their society and economic structures’.
According to Mr O’Neill’s affidavit, examples of the community projects undertaken recently by the Grantee party include an extensive program of scholarships, traineeships and apprenticeships for people who live near Rolleston, such as 28 scholarships under the XCQ Scholarship program (each valued at $10,000 per annum) and apprenticeships allocated to the Rolleston Coal Mine. In line with the anticipated increased employment at the expanded mine, additional community projects will be undertaken. These might include supporting seminars on employment opportunities and school based traineeship programs, and local purchasing procurement policy and support seminars to assist local business to upskill and understand the tendering process (see Mr O’Neill’s affidavit, paragraphs 11, 19).
The Government party is not aware of any information indicating that the grant of the proposed tenement would be likely to affect the development of the social, cultural or economic structures of the native title parties. It submits that this is a matter for the native title parties to address. In any event, the Government party contends that the grant of the proposed tenement is not likely to affect the development of their social, cultural and economic structures because of the factors quoted at [73].
The First native title party does not refer directly to the effect that the grant would have on its social, cultural and economic structures. However, the submission speaks of the 'significant impact' on the Karingbal People, as the traditional owners of the country, of the social impacts of changes in land use, the alienation of property and loss of connection with the land. Although it also refers to the impacts and stresses associated with relocations (as described in the draft Terms of Reference for the Project), it is not clear from the submission that any Karingbal People would be relocated as a consequence of the grant of the proposed tenement.
The Second native title party submits that most if not all of the social and cultural activities that would otherwise be conducted on the land ‘will be lost’ and a ‘substantial part’ has already been lost due to mining already undertaken. Such loss is apparently occasioned as a result of limitations on access to country considered sacred to the Second native title party and where large tracts are being gouged as part of the mining development.
The focus of s 39(1)(a)(iii) is on the future, being concerned with the ‘development’ of the social, cultural and economic ‘structures’ of the native title parties. The fact that there has been little (if any) social or cultural activity on the area of the proposed tenement can be understood by reference to the demographic and land use evidence summarised earlier (at [70]–[71]). The potential restrictions on future access to and use of parts of that land by native title parties for about 15 years have been identified (see [60], [64] and [75]). None of that indicates what effect the grant of the proposed tenement would have on the development of the relevant structures of the native title parties. Nor is there evidence of what those structures are or might be.
The Second native title party is critical of the Grantee party for failing to assist native title parties generally (and the Second native title party in particular) in the development of the social, cultural and economic structures which are being destroyed by the impact of the grant of mining leases in the area. In particular, it is submitted, the Grantee party has failed to address:
(a)training and apprentice opportunities
(b)employment opportunities, and
(c)local infrastructure for cultural, social and economic benefits.
These concerns are matters best raised in negotiations with the Grantee party. As noted in the reasons for decision on the good faith issue (see [2012] NNTTA 93 at [160], [175], [183] and [194], also [364]–[365]) there were some attempts to do so, particularly by the First native title party. So far as the Tribunal is aware, the only substantive outcome of that aspect of the negotiations was the offer by the Grantee party in relation to the following benefits to be reflected in Ancillary Agreements with the native title parties:
(a)the Grantee party would include in calls for contract tenders for the Rolleston Mine Project a section regarding cultural heritage and indigenous affairs which states the importance the Grantee party puts on building and maintaining strong working relationships with local Indigenous groups including the Karingbal People #2 and the Bidjara People
(b)the Grantee party would require the tenderer to provide details of their past dealings with Indigenous or Aboriginal groups (positive or negative), any current programs they host for enhancing employment or wellbeing of Aboriginal people and how they will endeavour to provide employment opportunities for local Indigenous groups including members of the Karingbal People #2 and Bidjara People while working on the Rolleston Mine Project. Those tenders that provide for involvement of Indigenous groups would be given favourable consideration in the assessment of tenders.
(c)in assessing tenders, the tenderer’s response on these issues will be weighted the same as for safety issues and environmental issues when considering the award of the contract.

The Grantee party stated in correspondence with Mr Redmond and Mr Lavery on 9 March 2012 that its revised offer continued until 21 March 2012 at which point, if it was not accepted, the offer would be withdrawn.

The Tribunal is not aware of whether that aspect of the offer might operate if the proposed tenement is granted. The evidence, noted in more detail later in these reasons, is that the Grantee party estimates that some additional 200 to 300 people will be employed during the construction phase for the Rolleston Expansion Leases, and during the production phase another 200 to 300 will be employed on the Rolleston Expansion Leases. The evidence from the Grantee party noted earlier suggests that there could be scholarship, training and apprenticeship opportunities for local people in association with the expanded mine. Other proposals might emerge and be implemented as a result of the EIS process (discussed at [178]–[182]).
Conclusion: On the evidence before the Tribunal, apart from the potential for some Karingbal and Bidjara people to seek training and employment if the Rolleston Expansion Leases are granted, it is not possible to say what effect (if any) the grant of the proposed tenement will have on the development of the social, cultural and economic structures of any of the native title parties.

The effect of the act on 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 – s 39(1)(a)(iv)

The Grantee party is unaware of any access by the native title parties to the area of the proposed tenement or that they carry out rites, ceremonies or other activities of cultural significance on that area in accordance with their traditions. Therefore, it is not aware that the proposed tenement will have any impact on such access or carrying out such rites, ceremonies or other activities of cultural significance.
However, according to its submission, the Grantee party intends to allow the native title parties to exercise such rights as they have in circumstances where the coexistence of such activities and mining activities under the proposed tenement is possible and can be accommodated in accordance with statutory obligations and health and safety regulations and practices for the mine.
As noted at [60] and [64], the Grantee party acknowledges that access to at least substantial areas of the proposed tenement will be either limited or prevented once the mining activities commence. The disturbance of the land, and the consequent effects on access to and use of the land by native title parties, would occur progressively over approximately 15 years. The mining activities on the Mount Kelman portion of the proposed tenement would involve the establishment of pits to undertake open cut coal mining and the construction of supporting infrastructure in the immediate vicinity of those pits (e.g. land and access roads and other service areas for power supply, creek diversions, levee banks and infrastructure). The Grantee party will be required to restrict entry to the land being mined as a matter of safety and practicality. At other times and in other areas the native title rights and interests might not be restricted and could continue to be exercised.
The Government party is not aware of any evidence suggesting that the freedom of access of the native title parties and their freedom to carry out rites, ceremonies or other culturally significant activities on the land will be affected by the grant of the proposed tenement.
As noted earlier, the First native title party refers to the effect which the proposed open cut mining would have on native title rights to access and use the land and waters to which the native title rights and interests relate. The submission contends that the Karingbal People have a continuous association with the area and that the proposed Project will adversely affect the Karingbal People's right to pass on traditional knowledge to young people through restriction of access to the area. The submission would have more force if there was evidence that the Karingbal People have continued to enjoy access to and use of the proposed tenement for such things as rites, ceremonies or other activities of cultural significance such as passing on traditional knowledge.
Looking beyond the area of the proposed tenement, the Second native title party states that in the past there has been ‘very limited right of access to the native title land over which mining leases have been granted’. Whilst there may have been access granted specifically for cultural and heritage work required under the ACHA, access otherwise has been ‘very restricted’ such that cultural activities have not been able to continue. Hunting, fishing and camping has been ‘totally restricted’. In addition the Second native title party has been unable, to date, to agree a CHMP, principally because of the availability of the Grantee party to meet.

[100] Section 275(1)(d) of the MRA provides that one of the general conditions of a mining lease is that, without the prior approval of the Minister, the holder of the lease shall not obstruct or interfere with any right of access had by any person in respect of land the subject of the mining lease. Such rights of access could be held by a person or group whose native title right of access had been determined to exist.

[101] The Second native title party submits that the Bidjara People would ‘like to have a say on the development on the land in question’. Their statement of contentions refers to a committee set up by the Grantee party to liaise on a regular basis with a Bidjara committee to determine the extent of desecration of the land and the likely impact on traditional sites and customs of the Bidjara People and to allow access to the land for hunting, fishing, camping and tribal gatherings and to monitor the development to ensure the land is not maltreated.

[102] Conclusion: It is clear that, if the proposed tenement is granted, the native title parties will have limited access to some parts of the area and their access to other parts will be prevented, at least for the duration of the mining and associated activities. As a consequence, their freedom of access to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions will be limited or prevented for that period. However:

(a)in the absence of evidence that either or both of the native title parties:
i. has rites, ceremonies or other culturally significant activities in relation to the area of the proposed grant, or
ii. currently enjoys access to the proposed tenement for the purpose of carrying out rites, ceremonies or other activities of cultural significance in accordance with their traditions, and
(b)given the express intention of the Grantee party to allow the native title parties to exercise such rights as they have in circumstances where the coexistence of such activities and mining activities under the proposed tenement is possible and can be accommodated in accordance with statutory obligations and health and safety regulations and practices for the mine (however limited that exercise might be from time to time),

I am satisfied that the grant of the proposed tenement would not have significant practical implications for the conduct of rites, ceremonies or other activities of cultural significance of the native title parties.

The effect of the act on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions – s 39(1)(a)(v)

[103] This criterion refers to the location and the characteristic of areas or sites. In some statutory contexts, it might be relevant to have regard to sites located on areas other than the subject land (see e.g. R v Kearney; Ex parteJurlama (1984) 158 CLR 426). However, in future act proceedings of this type, the Act states that the Tribunal has to take into account the effect of the future act (in this case the grant of the proposed tenement) on any area or site of particular significance ‘on the land or waters concerned’. In this case, I take the land or waters concerned to be the area of the proposed tenement, not just that part of the area of the proposed tenement where native title rights and interests might be recognised but not the area covered by each native title party’s claim. However, in some circumstances, sites or areas of particular significance elsewhere might be relevant if they are linked in some way to sites or areas on the land or waters concerned, e.g. if they form part of a dreaming track with associated songs, stories or ceremonies that link sites or areas on the land concerned with places elsewhere.

[104] The threshold question of fact is whether there are any areas or sites of ‘particular significance’ to the native title parties ‘in accordance with their traditions’ on the land or waters within the area of the proposed tenement.

[105] Subparagraph 39(1)(a)(v) focuses on sites of ‘particular significance’. In Chienmora v Striker Resources NL ((1996) 142 ALR 1 at 34-5) Carr J stated in relation that expression:

It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. ... If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word ‘particular’ out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.

Although Carr J was dealing with the use of the expression in s 237 of the Act, the passage has been endorsed by the Tribunal as also providing the correct understanding of its use in s 39(1)(a)(v) (see e.g. Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46 at [83], [84]; Jax Coal Pty Ltd v Smallwood and Others (2011) 260 FLR 99 at [69]).

[106] The Government party makes three points in its submission. First, it submits that the native title parties bear the onus of establishing these matters. It relies on the Tribunal’s decision in Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People /Queensland ([2010] NNTTA 210 at [72]) where Deputy President Sosso wrote:

An area or site can only be characterised as of ‘particular significance’ if it is identified by a native title party, its significance explained and that the person identifying the area or site has the necessary authority to speak about the traditions of the claim group – Little v Western Australia [2001] FCA 1706. It is not ordinarily possible for the Tribunal to make a finding that an area or site is of ‘particular significance’ without direct evidence from a native title party. Possible exceptions to this proposition are where there is direct and compelling evidence from government databases, previous cultural heritage studies or previous direct evidence from a qualified member of the claim group.

[107] For the reasons explained earlier at [22], no party bears an onus or burden of proof on matters such as this, and the passage just quoted gives examples of other evidence on which the Tribunal might rely. I note also that the Tribunal stated in Bissett v Mineral Deposits (Operations) Pty Ltd ((2001) 166 FLR 46 at [85]):

Of course this does not mean that, from an evidentiary point of view, a native title party is required to bring to the Tribunal specific material: Re Koara People (at 94-95). Evidence of areas or sites of significance can be ascertained by a combination of the operation of cultural heritage legislation in various jurisdictions, independent research (for example, an environmental impact statement) and evidence from the native title party about why registered, designated or otherwise identified sites are of particular significance in accordance with their traditional laws and customs.

[187] The Second native title party simply observes that the Aboriginal people (including the Second native title party) are members of the public and their particular concerns should be taken into account in determining the public interest. Those concerns have been considered elsewhere in these reasons.

[188] Conclusion: The grant of the proposed tenement would be in the public interest.

Any other matter that the arbitral body considers relevant – s 39(1)(f)

[189] There is no doubt that the mining activity proposed to take place on the area of the proposed tenement and the other Rolleston Expansion Leases has potential for a significant impact on the land, at least during the construction and operational phases. So much is clear from documents in evidence including the public notice about the draft terms of reference for an EIS in relation to the proposed Rolleston Coal Expansion Project, published in September 2011, which stated that the Project:

would consist of up to 10 open-cut pits that would either be extensions to the existing mine operation or new adjacent pits. Overburden would be placed in dumps, predominantly in mined out areas and reshaped, topsoiled and rehabilitated ... Overburden would be removed by the dragline, supported by excavations or shovels and haul trucks, with the coal extracted and then crushed, sized and blended on-site prior to being railed to domestic markets and to Queensland coal ports for exports.

The public notice described the ‘required vegetation clearing’ and its environmental impacts and stated that, although the Project would be supported by existing mine infrastructure, aspects of that infrastructure would need to be upgraded or supplemented.

[190] The First native title party also noted that the proposed activities on MLA 70415 and MLA 70416 were referred to the Commonwealth Department of Sustainability, Environment, Water, Population and Communities, which decided that the proposed project is a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The decision included that the action would be assessed through the Environmental Protection Act 1994 (Qld) EIS process under the Bilateral Agreement between the Commonwealth and the State of Queensland under s 45 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) relating to Environmental Assessment.

[191] The Terms of Reference for the Rolleston Coal Expansion Project Environmental Impact Statement (EIS) proposed by the Rolleston Coal Joint Venture and dated January 2012, referred to earlier, provide for the EIS to include information about environmental values and management of impacts in relation to such things as climate, land, transport, waste, water, air, noise and vibration and ecology. It is also to:

(a)describe the ‘options, strategic approaches and proposed methods for progressive and final rehabilitation of the environment disturbed by the project’, and
(b)provide an environmental management plan that will be used by the administrative authority to develop conditions to apply to project approvals.

[192] Paragraph 275(1)(b) of the MRA provides that one of the general conditions of a mining lease is that the holder must carry out improvement restoration for the mining lease. The Code of Environmental Compliance for Mining Lease Projects provides that the holder of the environmental authority must complete the rehabilitation processes on areas disturbed by mining activities (apart from those areas currently being utilised for mining activities) as soon as practicable and within six months of the completion of works in those areas (Condition 30). In other words, where practicable, the holder of the environmental authority is to undertake progressive rehabilitation of disturbed areas (see also Conditions 29, 31–38).

[193] Conclusion: The mining activity proposed to take place on the area of the proposed tenement and the other Rolleston Expansion Leases has potential for a significant environmental impact on the land, at least during the construction and operational phases. However, compliance with the State and Commonwealth regulatory regimes will assist in restricting the environmental impact of the mining activities and will ensure that rehabilitation will be undertaken progressively as each stage of mining is completed.

Any issues on which the parties agree - s 39(4)

[194] As noted at [24], s 39(4) of the Act states that, before making its determination, the arbitral body (in this case, the Tribunal) 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 s 39(1), to the extent that the matters relate to those issues.

[195] In its submission, the Government party states that it was not aware of any agreement between the negotiation parties that the Tribunal must take into account.

[196] After delivering the decision on the good faith issue, the Tribunal contacted the representatives of the parties by email on 23 August 2012, drawing their attention to s 39(4) of the Act and asking the parties to indicate if there were any agreements of the type referred to in s 39(4), by close of business on 30 August 2012. The email stated: ‘If nothing is received, the Tribunal will assume that there is no agreement’. The Tribunal received a response from the Government party’s representative on 29 August 2012 which stated: ‘The State is not aware of any issues on which the negotiation parties agree or any agreements of the type referred to in s 39(4) of the NTA.’ None of the other parties responded to the Tribunal’s request.

Summary of conclusions in relation to s 39(1) criteria

[197] Section 39 of the Act lists a diverse range of criteria that the Tribunal must take into account when making a determination under s 38 that:

(a)the act must not be done, or
(b)the act may be done, or
(c)the act may be done subject to conditions to be complied with by any of the parties.

Each of those criteria has been considered in these reasons for determination.

[198] Having regard to the evidence before the Tribunal and the submissions made by each of the parties to these proceedings, for the reasons outlined above I have concluded, in summary that:

(a)the enjoyment of some of the registered native title rights in relation to part of the area of the proposed tenement would be restricted or prevented as a consequence of open cut mining and associated activities on parts of that area, and such restrictions would continue for up to 15 years while the mining activities were undertaken or rehabilitation work was being completed (s 39(1)(a)(i))
(b)there is no evidence to suggest that the grant of the proposed tenement will affect the way of life of the native title parties and, although the grant would allow mining and related activities that might lead to restrictions on the enjoyment of some native title rights and interest in relation to parts of the area where native title might be held to exist, and the restrictions might continue for periods up to about 15 years, there is no evidence that the grant would have a significant impact on the culture and traditions of the native title parties; and any broader disruption to and effect on the way of life of local Aboriginal people as a consequence of the Rolleston Coal Expansion Project will be shared by the local community generally and not by the native title parties primarily or alone (s 39(1)(a)(ii))
(c)apart from the potential for some Karingbal and Bidjara people to seek training and employment if the Rolleston Expansion Leases are granted, it is not possible to say what effect (if any) the proposed tenement will have on the development of the social, cultural and economic structures of any of the native title parties (s 39(1)(a)(iii))
(d)if the proposed tenement is granted, the native title parties will have limited access to some parts of the area and their access to other parts will be prevented, at least for the duration of the mining and associated activities. As a consequence, their freedom of access to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions will be limited or prevented for that period. However:
i. in the absence of evidence that either or both of the native title parties:
·has rites, ceremonies or other culturally significant activities in relation to the area of the proposed grant, or
·currently enjoys access to the proposed tenement for the purpose of carrying out rites, ceremonies or other activities of cultural significance in accordance with their traditions, and

ii.    given the express intention of the Grantee party to allow the native title parties to exercise such rights as they have in circumstances where the coexistence of such activities and mining activities under the proposed tenement is possible and can be accommodated in accordance with statutory obligations and health and safety regulations and practices for the mine (however limited that exercise might be from time to time),
the grant of the proposed tenement would not have significant practical implications for the conduct of rites, ceremonies or other activities of cultural significance of the native title parties (s 39(1)(a)(iv))
(e)in the absence of evidence that there are sites of particular significance on the area of the proposed tenement, the grant of the proposed tenement will have no 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 (s 39(1)(v))
(f)if the proposed tenement is granted, the native title parties want as much input as possible in relation to the management and use of the land or waters in relation to which there are registered native title rights and interests. It is in their interests and the interests of the Grantee party for them to contribute to the development of a CHMP, and to seek the training and employment opportunities associated with any mining on the land covered by the proposed tenement. The issue of compensation for the effect of the grant will be dealt with separately, but there might also be opportunities to access other community benefits developed in relation to the expansion of the Rolleston Coal Mine (s 39(1)(b))
(g)the Rolleston Coal Expansion Project is an economically significant project for the area in which it is located and for the State of Queensland. The mining that would take place on the area of the proposed tenement would be a significant component of that project, and the grant of the proposed tenement is integral to the decision to expand the Rolleston Coal Mine in this way. On the evidence before the Tribunal, it is difficult to assess the economic or other significance of the grant of the proposed tenement to Aboriginal peoples who live in the area. It appears that relatively few Aboriginal people live in Rolleston or the former Bauhinia Shire, and there is no evidence about how many of them are Karingbal People or Bidjara People. Accordingly, the most that can be inferred is that:
i.   some of them might be able to gain employment in, or as a consequence of, mining activity on the proposed tenement or other Rolleston Expansion Leases, and
ii.    the other effects of the larger mining project (e.g. on housing availability and affordability and local infrastructure and services) will be experienced by them as part of the local community (s 39(1)(c))
(h)the grant of the proposed tenement would be in the public interest (s 39(1)(e))
(i)the mining activity proposed to take place on the area of the proposed tenement and the other Rolleston Expansion Leases has potential for a significant environmental impact on the land, at least during the construction and operational phases. However, compliance with the State and Commonwealth regulatory regimes will assist in restricting the environmental impact of the mining activities and will ensure that rehabilitation will be undertaken progressively as each stage of mining is completed (s 39(1)(f)).

[199] As noted earlier (see [21]), the Act gives no direction as to the weight that the Tribunal is to give to those criteria relative to each other. The weight to be given to them will depend on the evidence before the Tribunal.

[200] In light of my conclusions in relation to each of the criteria, and despite the brief submission by the First native title party that the act must not be done, I am not satisfied that the proposed tenement must not be granted. The next issue is whether the grant may be made without further conditions or whether the grant may be made subject to conditions to be complied with by any of the parties.

Possible conditions

[201] The Tribunal is empowered to make a determination that the act may be done subject to conditions to be complied with by any of the parties (s 38(1)(c)).

[202] The First native title party submitted, in summary that:

(a) the Tribunal should impose a condition for an amount to be paid in trust on account of a future determination of compensation, and
(b) the Grantee party should be required to undertake an archaeological survey of the open cut project area prior to any construction.

[203] Moneys to be paid into trust: In support of its submission that such a condition be imposed, the First native title party contends (at paragraphs 25 and 26) that the Act provides that the holders of native title are entitled to compensation for future acts, particularly dealing with land, which affects native title (see s 48). Native title holders are entitled to compensation on ‘just terms’ for any loss, diminution, impairment or other effect of the act on their native title rights and interests’ (s 51(1)). Where native title is affected but not extinguished (such as by the grant of a mining tenement in relation to the land), native title holders are entitled to compensation in accordance with the state law under which free hold title holders could be compensated, i.e., by operation of the ‘similar compensable interest test’ (ss 51(3), 240). The concept of ‘just terms’ is derived from the obligation of the Commonwealth under s 51(xxxi) of the Constitution to pay compensation on just terms for the acquisition of property. The compensation must amount to fair dealing between the Crown and the individuals. This involves consideration of the interests of the community as well as the land holder.

[204] The First native title party submits that, if the Tribunal is required by the parties to make a determination on compensation where there are only registered native title claimants; once a decision has been made a ‘compensation trust decision’, the payment will be paid into a trust until the time when a determination of native title is made and a registered native title body corporate is established.

[205] On a number of occasions, the Tribunal has considered at length the issue of conditions relating to compensation for future acts. The Tribunal’s views were summarised in Australian Manganese Pty Ltd v Western Australia ((2008) 218 FLR 387 at [64], [66] and [67]) and Western Desert Lands Aboriginal Corporation v Western Australia ((2009) 232 FLR 169 at [194]–[199]), and the cases cited therein. The following propositions are relevant as background to the consideration of the First native title party’s submission:

(a)the Tribunal has no power to make a determination containing a condition for the payment of compensation to a native title party
(b)the Tribunal is specifically precluded from making a determination with a condition that royalty type payments be made (s 38(2))
(c)if it is justified on the evidence, the Tribunal may impose a condition which requires the Grantee party to secure a specified amount of money by bank guarantee in favour of the Registrar of the Tribunal (s 41(3))
(d)monies secured by a bank guarantee are dealt with in accordance with s 52 of the Act depending on whether or not a determination of native title or a determination of compensation is made
(e)a determination of compensation under the Act can only be made by a Court following a determination that native title exists or existed.

[206] In the decision on the good faith issue in these proceedings I outlined the reasoning in support of the proposition that any liability to pay compensation to either or both of the native title parties would be borne by the Grantee party rather than the Government party (see [2012] NNTTA 93 at [93]–[100]). As noted in the reasons for that decision, the State will not grant a tenement under the right to negotiate process until the other parties have reached an agreement about compensation (at [93], see also [99]). Also noted in those reasons was the operation of the similar compensable interest test in the circumstances of this case (see [97]–[100], [316]–[321]), identifying ss 279(1) and 281(3)(a) of the MRA as relevant to determining who pays the compensation and, if agreement cannot be reached, the criteria by which the Land Court shall settle the amount of compensation to which the owner of land is entitled.

[207] I am not convinced that imposing a condition of the type sought by the First native title party is appropriate in this case. In summary:

(a)the First native title party has not nominated a sum which it considers to be appropriate for the purpose, nor a formula or set of criteria by which the Tribunal might calculate an appropriate sum
(b)in the absence of judicial authority on the point, it is not clear what the amount of compensation would be for the grant of the proposed tenement
(c)if the similar compensable interest test is applied, then, having regard to the range of registered native title rights and interests for each of the native title parties (see [46]–[48] above), it is not clear whether compensation for such things as deprivation of access to the land or waters covered by the proposed tenement and diminution in the use made of the land would be greater or less than the amount payable to the owner of the land
(d)it would be appropriate that any condition that might be imposed in relation to the First native title party should have a comparable provision in relation to the Second native title party and, as I observed in the decision on the good faith issue, where there are two or more registered native title claims, the amounts of compensation payable to the different groups would have to be calculated appropriately (see [2012] NNTTA 93 at [322]).

Consequently, any figure or figures devised by the Tribunal for this purpose would lack any basis in evidence or legal principle and could be characterised as an arbitrary exercise of discretionary power. Or, as Deputy President Sumner said in another matter:

While the Tribunal is not obliged to determine such an amount by reference to what ultimately might be awarded by way of compensation, neither would it be prudent to simply pluck a figure out of thin air. (Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387 at [68])

[208] There is also nothing to suggest that the Grantee party’s financial position is such that a bank guarantee is needed as a bond or security.

[209] Finally, I note that in Western Desert Lands Aboriginal Corporation v Western Australia, Deputy President Sumner indicated that, if there had been a determination that the future act be done, he might not have imposed a bank guarantee condition because, if mining could not proceed until the issue of compensation is resolved, ‘there would be little utility in imposing such a condition’ (at [199]). That would seem to be the case here.

[210] Archaeological survey: The First native title party submits that any ground disturbing activity needs to be first discussed and agreed with the Karingbal People as the traditional owners. Indeed the First native title party contends that the Grantee party should be committed to undertaking an archaeological survey of the open cut project area prior to any construction commencing, and that should be a condition of any determination that the proposed tenement may be granted.

[211] This submission was made in the context of contentions that the Karingbal People, as custodians of the area of the proposed tenement, should not necessarily be expected to have identified all ‘sacred sites’ to the Aboriginal Cultural Heritage Database. The submission also referred to at least the possibility of there being some sites that ‘are not sacred but are particularly secret in Karingbal tradition, and which Karingbal custodians therefore prefer not to be made known to non-custodians’. Because, it was submitted, all sites cannot be identified, marked and fenced off to prevent people disturbing them, it is important that the Grantee party engage and maintain close relations with Karingbal People (see Karingbal People #2 Native Title Party Statement paragraphs 11 and 12).

[212] In the earlier discussion of sites of particular significance, reference was made to the definition of ‘Aboriginal cultural heritage’ in the ACHA. That definition includes ‘anything that is ... evidence, of archaeological or historic significance, of Aboriginal occupation of an area of Queensland’ (ACHA s 8). Given the scope of the cultural heritage duty of care cast on the Grantee party by the ACHA, and the various requirements of that legislation, the outcome sought by the First native title party might be reached as a consequence of the development of a suitably comprehensive CHMP. As noted earlier, the Grantee party has expressed its willingness to prepare a CHMP for the entire area of the proposed tenement and the area of the other Rolleston Expansion Leases.

[213] Consequently, I am not satisfied that it is necessary or appropriate to determine that the grant of the proposed tenement be made subject to a separate condition that the Grantee party should undertake an archaeological survey of the open cut project area prior to any construction commencing.

Conclusion

[214] The determination of the Tribunal is that the grant of Mining Lease 70415 to Xstrata Coal Queensland Pty Ltd (75%), Sumisho Coal Australia Pty Limited (12.5%) and ICRA Rolleston Pty Ltd (12.5%) may be done.

Graeme Neate

President