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Focus: Native Title – October 2001

In this issue: The backlog of exploration permits in Queensland could soon start clearing with the release of the State-wide Model Indigenous Land Use Agreement, negotiated between the State Government and the Queensland Indigenous Working Group.

A new permit option

The State-wide Indigenous Land Use Agreement, or ILUA, potentially provides explorers with another option for securing the grant of exploration permits contained in the backlog of exploration permits applied for prior to 15 September 2000. But it has no application to permits applied for after this date, nor to mining leases.

You do not have to use the State-wide ILUA to get a grant of a permit in the backlog. An explorer can still opt to negotiate its own ILUA with the claimants – as was recently done, for example, with the Kalkadoon people in the Mt Isa region. And an explorer also has the option to proceed under the 'alternative State provisions' contained in the Mineral Resources Act.

In fact in some cases the State-wide ILUA simply will not be an option: it truly is only a 'model,' and cannot be registered in its current form. To be effective, relevant native title claimants and holders in individual areas of the State must agree to adopt the State-wide ILUA – otherwise, it will not be available in that area. It is unlikely all claimants will adopt the State-wide ILUA: so far, only four of the seven regional land councils have signed off.

Assuming an explorer has a backlog exploration permit in an area where the relevant native title parties have adopted the State-wide ILUA, then the explorer may opt in to the ILUA by signing a deed. By doing so, the explorer is entitled to the grant of the backlog exploration permit, subject to conditions contained in the ILUA and in the exploration permit itself.

Key conditions

Here are five of the key provisions of the State-wide ILUA:

  1. If the explorer's only interest in the area is an exploration permit or mineral development licence (MDL) granted under the ILUA, then the explorer agrees that it will not seek to become a party to the native title claim. If it is already a party to the native title claim, it agrees to withdraw after obtaining the exploration permit or MDL.
  2. If an explorer has obtained an exploration permit under the ILUA then, provided that the explorer has complied with the conditions of that permit, the explorer is entitled to the grant of an MDL over the relevant area, and such MDL will also be subject to the conditions of the ILUA and contain native title conditions.
  3. Conditions are enforceable as a contract between the explorer and the native title parties. The explorer could additionally be penalised under the Mineral Resources Act for any breach of native title conditions which form conditions of the exploration permit – this could lead to a fine or even the cancellation of the permit.
  4. The procedure for conducting exploration is this:
  1. Before the explorer can undertake any exploration activities, the explorer must give a written notice to the Exploration Liaison Committee (ELC), which will be representatives of the relevant native title parties.
  2. Within 20 business days, the ELC is to advise the explorer whether it can undertake those activities, or whether it can only undertake those activities subject to conditions contained in an inspection report (which may be prepared with or without an actual physical inspection of the area, at the ELC's option).
  3. If the ELC wishes to conduct an inspection of the area, the explorer may be required to attend a preliminary meeting to discuss the proposed exploration activities and make arrangements for the inspection. The inspection is to commence within 25 business days of the ELC notifying the explorer that an inspection is required.
  4. An inspection team may consist of up to four members from the native title group; the ELC may also require a representative of the Land Council to attend, as well as nominating an anthropologist or archaeologist. Up to four other members of the native title group may also accompany the inspection team.
  5. There is no time limit in the ILUA placed upon how long an inspection may take. The inspection team is simply required to provide a copy of the inspection report to the explorer within 20 business days of concluding the inspection, although there is scope for the inspection team to seek an extension of this period.
  6. The inspection report may contain conditions upon the exploration activities being undertaken, and may identify 'exclusion zones.' The inspection report may also require monitoring of the exploration activities by a representative of the native title parties.
  7. In the event of a dispute by the explorer of any of the conditions imposed in the inspection report, there is a dispute resolution procedure, with the Land and Resources Tribunal having ultimate jurisdiction.
  1. There are six payments the explorer must make:
  1. annual compensation payment of $500 plus $25 per sub-block in excess of 20 sub-blocks included in the exploration permit or MDL;
  2. $700 payment to the ELC;
  3. $300 per member per 8 hour day for each member of the inspection team, plus the explorer is responsible for the transportation, accommodation and meals of the inspection team;
  4. $1,000 for an inspection report;
  5. $300 per person per eight hour day for any monitors required in relation to the exploration work; and,
  6. Payment of fees for any anthropologist or archaeologist required.

These amounts are CPI index-linked.

How long will this take?

Grants of permits under the State-wide ILUA won't happen overnight. Even assuming a relatively quick acceptance of the State-wide ILUA by native title claimants and holders, it's likely that the first grants of exploration permits under the ILUA will take another six months, because of the procedural requirements involved in registering it.

Nevertheless, if significant numbers of native title claimants and holders accept the ILUA, it may represent a positive development in negotiations of this type with native title groups.

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