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Focus: Native Title – June 2003

Evidence is the key for native title compensation

In brief: In a landmark decision, the Queensland Land and Resources Tribunal has recommended the grant of mining leases in Queensland in the face of native title opposition, and in doing so has provided useful comment on issues of evidence, compensation and cultural heritage. The decision is encouraging for mining companies as the Tribunal's recommendation was that the mining leases be granted without the imposition of any special conditions, or an award of compensation to the native title parties. Senior Associate Ben Zillmann and Lawyer Rochelle Spedding review the case.

The case

Five mining lease applications were lodged for the mining of coal.1 The underlying tenures were pastoral leases, so native title had not necessarily been extinguished and there were a number of native title claims over the area. The native title parties sought the imposition of conditions on the mining leases (particularly in relation to cultural heritage and access) as well as an award of compensation.

President Koppenol and Deputy President Kingham (who constituted the Tribunal for the hearing) agreed in recommending the grant of the mining leases. Deputy President Kingham, however, dissented on the issues of compensation and cultural heritage but, under the rules of the Tribunal, the President's decision prevails on these issues.

Cultural heritage conditions

Both the State and native title parties sought the imposition of special cultural heritage conditions in the leases.

President Koppenol decided that the mining leases should be granted without any special conditions on cultural heritage. The key points in his reasoning were as follows:

  • While the protection of cultural heritage is important, the mining companies had appropriate strategies in place and had given appropriate undertakings in relation to cultural heritage (to notify the Environmental Protection Authority and the native title parties if any cultural heritage material was discovered while conducting mining activities);
  • The mining companies were fully aware of their obligations under the Cultural Record (Landscapes Queensland and Queensland Estates) Act 1987 and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth);
  • The Cultural Record (Landscapes Queensland and Queensland Estates) Act 1987 was adequate to protect sites and items of cultural significance, and therefore additional conditions relating to cultural heritage need not be imposed.

Deputy President Kingham dissented, proposing that cultural heritage conditions were necessary in the circumstances to protect the sites and material found.

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Compensation

Significantly, no compensation was awarded to the native title parties as they did not provide any evidence as to how their native title rights and interests would be affected by the grant of the mining leases. This reaffirms another recent decision of the Tribunal where compensation was refused due to lack of evidence.2

Compensation of $2,015,883 was sought by the native title parties. The mining company argued that no more than $156,500 should be awarded for the five leases.

As in most cases, the native title rights and interests asserted in the claim were couched in very general terms. When determining compensation, it is clear from the decision that evidence of the specific rights and interests affected will be necessary, before the Tribunal is willing to award compensation.

Here again, Deputy President Kingham dissented, indicating that she would have awarded compensation in the amount specified by the mining company.

Other significant points

A number of other points from the decision are worth mentioning:

  • The grant of a mining lease will not necessarily extinguish or be inconsistent with native title rights and interests, as some rights and interests do not require physical presence on the land.
  • President Koppenol applied the decision of Ward,3 indicating that native title rights to control access to the land would have been extinguished by the earlier grant of the pastoral leases.
  • Both the State and the native title parties pushed for a clause in the conditions specifying the native title parties' right to access the mining lease area. This was rejected by both President Koppenol and Deputy President Kingham, as the statutory right of access under the Native Title Act 1993 (Cth) already provided sufficient rights.

The Tribunal's decision was made under Queensland's specific 'Alternate State Provisions' for mining interests. The Alternate State Provisions are now being phased out in Queensland and in the future, situations such as this case will be dealt with by the National Native Title Tribunal under the Commonwealth Native Title Act.

References
  1. RAG Australia Coal Pty Ltd & Anor v Barada Barna Kabalbara & Yetimarla People & Ors [2003] QLRT 65 (24 June 2003)
  2. Re C.I. Doxford & Ors [2003] QLRT 58 (3 June 2003)
  3. Western Australia v Ward (2002) 76 ALJR 1098

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