23 May 2013
Lack of evidence of impact on native title rights key for decision to grant mining lease
Native title parties cannot simply assert an impact on native title rights and interests if they want the Native Title Tribunal to consider refusing the grant of a mining or petroleum tenement or imposing conditions
Following on from the decision that Adani Mining Pty Ltd complied with its obligation to negotiate in good faith, the decision in Adani Mining Pty Ltd / Jessie Diver & Ors on behalf of the Wangan and Jagalingou People / State of Queensland  NNTTA 52 (7 May 2013), has now been handed down by the National Native Title Tribunal.
In this substantive decision, the Tribunal decided that the mining lease may be granted under the Native Title Act 1993 (Cth) (NTA) without conditions, and confirmed that native title parties must do more than merely assert an impact on native title rights and interests if they want the Tribunal to consider refusing the grant of a mining or petroleum tenement or imposing conditions on such grant. Clayton Utz acted for Adani.
Decision to grant the mining lease
The Tribunal had to decide whether or not the mining lease may be granted from a native title perspective, and also whether any conditions should be imposed on the grant of the mining lease. In doing so, the Tribunal had to consider the criteria in section 39 of the NTA, being the effect of the grant of the mining lease on:
the enjoyment by the native title parties of their registered native title rights and interests;
the way of life, culture and traditions of any of the native title parties;
the development of the social, cultural and economic structures of any of the native title parties;
the freedom of access by any of the native title 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;
any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions; and
any other matter that the arbitral body considers relevant.
In this case the native title party made bare assertions that there would be an impact on the above matters.
The Tribunal found that, although for the purposes of considering the impact on these matters the Tribunal assumes that the native title rights and interests asserted in the claim exist, the native title party must bring evidence of how the grant of the mining lease will impact on these rights. This will necessarily require evidence of the current exercise of these rights.
As the native title party did not produce this evidence, the Tribunal was unable to make findings that the grant of the mining lease would have an effect on the enjoyment of the registered native title rights and interests.
The Tribunal also considered the existing non-native title rights and interests in the area and the existing use of the land by other persons. As there were already significant non-native title rights and interests in relation to the land, including pastoral leasehold interests and other mining and petroleum exploration tenements, any possible impact on native title rights and interests by the proposed mining lease would necessarily be reduced.
Finally, the Tribunal considered that the statutory restrictions imposed by the mining, environmental and Aboriginal cultural heritage legislation were such that the impact on any native title rights and interests would be mitigated.
Imposition of conditions
The native title party proposed a number of conditions to be imposed if the Tribunal decided to grant the mining lease. These included access to the mining lease area, and requiring an amount to be paid into trust to reflect the impact on the native title rights and interests. The native title party contended that this amount should reflect amounts paid by Adani to the pastoralist to purchase the underlying land or to another mining company to purchase the exploration permit that was being used as the pre-requisite tenure for the mining lease.
Flowing from the native title party's inability to bring evidence of the impact on the native title rights and interests, the Tribunal declined to impose any conditions on the grant. Further, in respect of the trust condition, the Tribunal refused to impose the condition. It noted that there may be circumstances where it may be appropriate to impose such a condition if necessary to give effective protection to the native title rights and interests. Here, however, where there was no evidence of any impact on the native title rights and interests, there was no basis for the condition to be imposed.
Further the Tribunal noted that it had refused such a condition previously for the following reasons:
- the native title party had not provided an appropriate sum, formula or set of criteria to calculate the trust amount;
- the absence of judicial authority in relation to the calculation of compensation for the grant of a tenement; or
- if the similar compensable interest test is applied, it is not clear whether compensation for such things as deprivation of access to land and diminution in use made of land would be greater or less than amounts paid to the owner of the land.
Where the native title party does not bring evidence of the impact of the grant of a mining or petroleum tenement on their native title rights and interests, it will be very unlikely that the tenement will not be granted or that conditions will be imposed on any grant from a native title perspective.
Furthermore, until there is some clarity about the assessment of compensation for the impact on native title rights and interests of the grant of a mining or petroleum tenement the Tribunal is unlikely to impose a condition that moneys be paid into trust by the project proponent.
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