Hunt, Michael --- "Working with Native Title" [1998] MurdochUeJlLaw 8; (1998) 5(1) Murdoch University Electronic Journal of Law

End of Article

Working with Native Title

Author:	Michael Hunt Solicitor, Hunt & Humphry, Project Lawyers
Issue:	Volume 5, Number 1 (March 1998)

Contents

• Introduction
• Legal Framework of Aboriginal Issues
• (a) Common Law: Mabo (No 2)
• (b) The Commonwealth Native Title Act 1993
• (c) Complementary State and Territory legislation
• (d) Heritage (Aboriginal Site) Legislation

• Not an Issue of Existence of Native Title
• Aboriginal Issues Management Plan
• First Stage: collect and compile information
• Second Stage: assess that information

• Pre 1994 Titles
• 1994/5 Titles
• Titles Granted After March 1995 and Titles to be Granted in the Future
• (a) Exploration Licences, Prospecting Licences and Miscellaneous Licences
• (b) Mining Leases and General Purpose Leases
• (c) Land Titles- Compulsory Acquisition of Native Title
• (d) Agreements

• Heritage/Aboriginal Site Issues
• Aboriginal Issues Management Plan: Second Stage
• Conclusion
• Annexes
• Granted Tenements - Native Title
• Applications for Tenements - Native Title Situation

• Notes

Introduction

1. This paper suggests how to deal with the practical problems presented by native title. It is not intended as a learned treatise on the law. Rather, it focuses on how to work with the laws and practices relating to native title.


2. To keep the practical focus, I have assumed the situation of a mining company ("the Company") which through some years of exploration has discovered a mineral resource ("the Project") which it now wishes to put into production. I have assumed that the Project is at the stage of commencement of a feasibility study. Typically this would mean that the Company has delineated a mineral resource and now needs to undertake detailed drilling to convert this to an ore reserve.[2] It also requires that the Company converts relevant exploration titles to production titles and applies for titles to secure land for infrastructure facilities such as a treatment plant site, tailings dams, waste dumps, accommodation, haul roads, water pipelines, power lines and perhaps a gas pipeline.[3]


3. This paper is primarily concerned with the impact of native title but it also includes Aboriginal heritage (particularly Aboriginal sites) because, in developing the Project, the Company will have to manage the potential impact on the Project not only of native title issues but also of heritage issues.


4. Although I have chosen a mining company and a mining project, the same principles would apply to the development of an onshore oil or gas project or even (with some modifications) a real estate development. The fundamental issue is validity of title and how the resource developer can obtain it.



Legal Framework of Aboriginal Issues


5. The legal framework concerning Aboriginal issues is:

(a) Common Law: Mabo (No 2) [4]


6. This is the High Court of Australia's decision, which in 1992 first recognised that native title existed on a small island in the Torres Strait. There is still no decision of a court determining the existence of native title in mainland Australia apart from a consent determination over a small parcel of land in NSW.[5] However, there can now be no doubt that in the current political and judicial climate, native title will be determined to exist in many areas of mainland Australia.

(b) The Commonwealth Native Title Act 1993[6]


7. This was the Commonwealth Parliament's response to the Mabo (No.2) case. It prescribes a detailed procedure as to the manner in which native title can be declared to exist (basically, by order of the Federal Court). Relevantly, for the Project, it also sets out a regime for validating exploration and mining titles which were granted prior to 1 January 1994 and providing for the grant of new exploration and mining titles in accordance with principles and procedures which are intended to recognise and protect native title.

(c)Complementary State and Territory legislation


8. Each State and Territory has enacted legislation[7] complementary to the Native Title Act 1993 (CTH) (which for convenience I shall refer to as the "NTA"). The complementary legislation varies from State to State. Western Australia adopted the bare minimum legislative structure, which was necessary to validate pre 1994 titles.[8] Victoria, the Northern Territory, the Australian Capital Territory and Tasmania adopted a similar course.[9] In contrast, South Australia adopted a full native title regime as envisaged by the NTA.[10] So have NSW and Queensland but, other than the provisions for validating pre 1994 titles, the legislation in NSW and Queensland has not yet been proclaimed.[11]

(d) Heritage (Aboriginal Site) Legislation


9. This exists at both a Commonwealth and State level.[12]

Not an Issue of Existence of Native Title


10. In assessing the Company's present situation relating to native title at the site of the Project, there is little point in attempting to research whether native title exists. In any situation, it is possible that any pre-existing native title has been extinguished either by the relevant Aboriginal group's extinction or abandonment of the land or by the grant of tenure in the past. To advance beyond the state of "possibility" would require a great deal of anthropological research and some court decisions on abandonment and extinction issues and on the effect on native title of the grant of past tenure (if any). At the present time, I do not believe it is worthwhile conducting that research because until there are some court decisions, that research would be nothing more than conjecture.


11. In any event, the existence of native title is not the issue facing the Company. The real issue is the obtaining of valid title and the impact of the NTA's procedures on this.

Aboriginal Issues Management Plan


12. I think the first action for the Company to institute is the formulation of an Aboriginal Issues Management Plan.

First Stage: collect and compile information


13. The first stage would involve the following steps:


• Compiling a list of the mining tenements which are currently held for the Project, showing their date of grant, underlying land tenure[13] and, in the case of titles granted or renewed since 1 January 1994, whether the NTA's "notification and right to negotiate"[14] procedures were followed prior to grant. In Annexure A to this paper, I have set out the sort of schedule which I think should be compiled. In South Australia since 17 June 1996 Part 9B of the (SA) Mining Act has shifted the onus for negotiations from the State Government to exploration tenement holders and mining lease applicants, so grants whether before or after that date must be carefully analysed.


• Compiling a list of tenements and other interests (eg water licences, easements, land titles) which will be required for the Project. This is very important. Annexure B contains the sort of schedule that is appropriate.


• All the essential titles (mining tenements, water licences, pipeline and powerline licences and easements, roads, etc.) should be identified now- even if their exact location cannot be pinpointed.


• As in the sample Schedules annexed, the granted tenements and the proposed applications should be grouped according to their purposes (eg ore body, future reserves, infrastructure, haul road, calcrete resource, pipeline, haul road, etc.).


• Compiling a plan of those tenements and proposed applications. On this plan should be marked the boundaries of all native title claims over the areas.


• Obtaining a copy of each claim to check when it was lodged, registered and accepted.


• Incorporating the native title claim information into the Schedule (as in Annexure B to this paper), so that the Company knows with which native title claimants it must deal. In the case of applications, it is possible that further claimants will need to be added.[15] As separate exercises, it is important that:


• An assessment should be made of which tenements are essential to the Project and which are held for, say, future exploration or a buffer zone. This enables management to concentrate on organising safe titles for the essential tenements and other interests.


• Details of Aboriginal site surveys conducted to date should be compiled so that an assessment can be made of what future site surveys will be required.[16]

Second Stage: assess that information

14. The second stage involves a review of all this information. It is necessary to formulate a plan of how to deal with the many issues that will arise.


15. Before I can discuss these issues further, it is necessary to examine the law and practice relating to granted titles and applications for new titles, which I will do in the following Parts.

Pre 1994 Titles


16. All exploration and mining titles that were granted to the Company before 1 January 1994 can now be regarded as valid from a native title perspective. They cannot be challenged even if native title is subsequently proved to exist over the land. If native title is ultimately found to have existed over the subject land, any compensation in respect of pre 1994 titles will be payable by the Commonwealth, State or Territory, not by the Company.[17]


17. It is important to recognise that the Commonwealth's NTA and the corresponding State legislation[18] do not apply to validate all pre 1994 titles. They only apply to validate titles that would otherwise be invalid because they affect native title. The importance of this statement is that the common law position as to the effect of grant of valid (as distinct from validated) titles is not overruled by the NTA. Thus, for example, if the law is ultimately found to be that the grant of a valid pre 1994 title such as a mining lease extinguished native title, the NTA does nothing to affect this. On the other hand, somewhat paradoxically, the NTA prescribes the extinguishing effect of validated pre 1994 titles.[19]

1994/5 Titles


18. Exploration, mining and ancillary titles granted (or the term of which was extended) between 1 January 1994 and March 1995 (in the case of Western Australia) or December 1996 (in the case of the other States and Territories) may be invalid. It is important to emphasise the word "may" for the following reasons.


19. Any invalidity stems from the fact that even after the NTA commenced operation, State and Territory governments continued to grant titles over pastoral lease land that was the subject of a native title claim without observing the NTA's procedures in the belief that native title had already been extinguished. In the case of Western Australia, its government made a political decision not to recognise the NTA until after a High Court decision in March 1995.[20] From 16 March 1995, Western Australia followed the NTA's procedures when granting titles. This included titles granted on pastoral leasehold land. Other States and Territories did not do so until after the Wik[21] decision in December 1996.[22] As a result, it may be asserted by native title claimants that titles issued between 1 January 1994 and March 1995 (Western Australia) and between 1 January 1994 and December 1996 on pastoral leasehold land (other States and Territories) are invalid because the NTA procedures were not observed prior to their grant and thus the grants of those titles are invalid by reason of section 28 of the NTA. There is no court decision yet which specifically makes such a finding.


20. The situation is different in South Australia, where Part 9B of the Mining Act 1971 (SA) enables grants of exploration authorities to be made on land where "native title might exist", but effectively suspends use of the privileges attaching to the authority until the holder has ascertained if its activities are likely to interfere with native title incidents, and if so, the holder has obtained a Court determination or an agreement with the native title claimants and holders. Thus the SA Government, leaving the risks of invalidity of activity and compensation with the holder may have avoided the risks of grant. In the case of production tenements, the grant cannot be made until the applicant has reached a similar status.


21. Such a title could be declared to be invalid if there was an accepted native title claim over the land at the time of its grant. In North Ganalanja v Queensland [23] (the Waanyi or Century Zinc case), some of the High Court indicated that a title granted over land the subject of an accepted native title claim would be invalid if the NTA procedures were not followed. Although the issue was not directly considered in the case, the High Court's views are obviously highly persuasive and are likely to be followed by other courts when the issue is directly considered. Whether the High Court's rationale would extend to titles granted when no native title claim was in existence is not clear. It is arguable that based on the rationale of the High Court in Wik, it may so extend.[24] It is necessary to note that a court has a discretion whether to make a declaration of invalidity, an aspect discussed in paragraph (33) below.


22. In my opinion, if invalidity is declared, what would be determined as invalid is the grant of a title. The application for the title would remain as a valid application. Thus, if there was a finding of invalidity of a title, the consequence would be that the application would be returned to the Minister to be determined according to law; that is, in accordance with the NTA procedures. The priority of the application would be preserved under the mining legislation.[25]


23. There is no way of conclusively determining at this stage whether the Company's titles granted in 1994/5 (or 1994/6) are invalid.


24. It is conceivable that a native title claimant determined to improve his or her bargaining position may threaten to take out an injunction to restrain further operations on any land pending a determination of whether native title exists on that land, alleging that the subject mining titles are invalid.


25. There are two principles relating to the granting of interim injunctions to restrain current operations. The first is whether there is a serious issue to be tried. This would require the native title claimants to put forward some satisfactory evidence as to the existence of native title. The existence of an accepted native title claim would probably be sufficient to satisfy this requirement.


26. Secondly, the "balance of convenience" must favour the grant of an injunction. In considering this issue, the court would weigh up the prejudice to the native title claimants if a mining project proceeds as against the prejudice to the miner if the project is suspended.


27. The difference can best be illustrated by contrasting a "grass roots" exploration program with an established mining operation. It is conceivable that the implementation of a grass roots exploration program on ground which may have native title and which has not yet been disturbed would be enjoined. The court could say that the prejudice to the native title claimants from having the ground disturbed is greater than the prejudice to the miner if the ground remains undisturbed for the present, particularly if any Aboriginal sites are likely to be disturbed.[26] In contrast, it is highly unlikely that an interim injunction would issue to restrain the miner's mining operations once a project has been constructed on land where a native title claimant's claim has been lodged but not yet proved. The ground would already be so disturbed that any additional disturbance could not reasonably be said to prejudice the native title claimants but there would be great prejudice to the miner in stopping mining.


28. The present stage of my hypothetical Project would be that some ground disturbance has already occurred through exploration and pre-feasibility work. It is possible that at this stage, an application for an interim injunction could succeed. As time goes on, development begins and the amount of ground disturbance increases, such an application becomes less likely to succeed.


29. However it must be recognised that legal action may be commenced by one or more of the native title claimants simply to enhance a bargaining position.


30. The Federal Court decision concerning the Ernest Henry deposit (Taylor, Kalkadoon People v NQEC, QG 6001/1996) assists the Company's position. An interim injunction was refused because of the "balance of convenience" and because site surveys had been conducted. A similar decision was reached in Smith (Gunggari) v Tenneco, QG 60 of 1996


31. Whether an interim injunction would be granted is only part of the issue. The courts may ultimately rule that the grant of a tenement will be invalid if granted at a time when a native title claim had been accepted over the land but the NTA procedures were not followed. If so, even though an interim injunction might have been denied, when the matter comes to trial a declaration of invalidity may be coupled with a permanent injunction if the court decides that damages is not an adequate remedy.


32. Whether a declaration and injunction will be granted is uncertain - they are discretionary remedies. A court could rule that an award of damages is an adequate remedy. In Smith (Gunggari) v Tenneco, QG 60 of 1996, the Federal Court ruled that the native title claimant had not demonstrated an arguable case that the grant of the pipeline licence was invalid. A title will not be regarded as invalid at law unless the court declares it to be invalid. In deciding whether to make a declaration, the court will apply discretionary considerations. In the Company's circumstances, the discretionary factors appear to be strongly against a declaration of invalidity.


33. First, as I have noted, there would have been significant ground disturbance already.


34. Secondly, the native title claimants may be regarded as being guilty of delay. For some time the claimants would have been aware of the Company's exploration at the Project site. It is probable that the native title claimants have assisted anthropologists acting for the Company to carry out Aboriginal heritage surveys in relation to the area of the Project during the exploration phase. The Company will have undertaken considerable expenditure in exploration and pre-feasibility on the Project.


35. Against this background, any delay by the native title claimants in taking action would be a strong reason why a court would refuse to exercise its discretion to make a declaration that any lease is invalid, particularly as I conjecture there would be little likelihood of any damage to the claimants by reason of the Project proceeding if substantial ground disturbance has already occurred. The position could be different, however, if any Aboriginal sites are threatened.


36. I acknowledge that the claimants may nevertheless have a claim for compensation if they ultimately prove native title and if it is eventually found that the tenements affect that native title but that is not the issue of concern in this paper. First, it is very remote in time (and I believe, remote in probability). Secondly, as the law presently stands, the problem of compensation is one for the State not for the Company.


37. Some State and Territory governments have given assurances to the mining industry in relation to mining titles granted in the period between 1 January 1994 and 16 March 1995 (or December 1996).[27] These have taken different forms. In Western Australia, the Minister for Mines announced the Government's policy to the effect that:


• Each title issued during the period in question is presumed as valid unless and until declared otherwise;


• If a particular title is shown to be defective because of the existence of native title and the operation of the NTA, the Government will protect the rights and interest of the title holder through not determining any new application for the ground by any party other than the title holder and, if necessary, granting a replacement title in accordance with the NTA's procedures;


• if the issue of an existing or replacement title results in a successful claim for compensation because of the existence of native title, the Government will accept liability for that compensation.[28]


38. In contrast, South Australia has enacted a "Safety Net" provision to assure priority for applications which resulted in invalid grants, and the Northern Territory has enacted (but not yet proclaimed) legislation specifically requiring the purported holder of a tenement found to be wholly or partly invalid to make a further application for the same kind of tenement in respect of the same land within the time fixed by the Minister.[29]


39. Some legal advice being disseminated to the mining industry has suggested that because of the uncertain legal status of such tenements, mining companies should conditionally surrender existing titles granted (or the term of which was extended) between 1 January 1994 and March 1995 (or December 1996) and then reapply for tenements over the same ground.


40. I regard such advice, if given in the abstract without examining all the issues, as unnecessarily conservative. Legally, any title is presumed to be valid until such time as a declaration of invalidity is made. What is required properly to assess the issue is a detailed examination of all the relevant tenements and the native title claims. I have already mentioned the sort of inquiries which are required at Part 4 of this paper in relation to my suggested Aboriginal Issues Management Plan.


41. The Commonwealth Government's "Ten Point Plan" must be considered. It is far from certain that the Ten Point Plan will be enacted because it seems that there will be considerable opposition to it. However it is relevant to consider the effect of the "First Point" of the Plan. The "First Point" is a proposal to validate grants of titles over pastoral land made between 1 January 1994 and 23 December 1996.


42. Experience indicates that Aboriginal groups in Western Australia are not currently challenging post January 1994 titles, an attitude which I suspect is caused by the announced intention for legislation to validate them. I am aware of at least one example of a claim for invalidity of such a lease not being proceeded with since the announcement of the Ten Point Plan.


43. I am not aware of any legal proceedings[30] challenging the validity of a mining tenement granted in 1994/5 (although I am aware of several threats to do so). I believe that Aboriginal groups are waiting to see what happens with the Ten Point Plan before pursuing any claim of invalidity.



Titles Granted After March 1995 and Titles to be Granted in the Future


44. Since Western Australia decided in March 1995 to fall into line with the Commonwealth NTA regime, it has adopted the procedures of the NTA in relation to the grant of exploration and mining titles over vacant Crown land, reserved land (including national parks) and pastoral leasehold. Thus, the State requires all applications for exploration, mining and ancillary titles to follow the NTA procedures. These are commonly referred to as the "right to negotiate" but more accurately described as the "notification and right to negotiate" procedures.


45. These procedures involve the advertising of the Minister's intention to grant a mining tenement once the application has been through the usual Mining Act procedures and is ready to be granted. The principles vary according to the type of title being sought and they must be considered separately (for convenience and so that this paper does not become of unmanageable length, I mention the situation in Western Australia). A similar scenario could be applied in other States and Territories [31] but, as mentioned below, it does not seem that New South Wales and Queensland are prepared to follow this procedure.


46. The procedure followed in Western Australia is:

(a) Exploration Licences, Prospecting Licences and Miscellaneous Licences


47. The State takes the view that the "expedited procedure" applies in respect of exploration and prospecting licences and in respect of some types of miscellaneous licences.


48. The expedited procedure can be used in the case of a title, the grant of which does not impact upon an Aboriginal site, does not involve substantial ground disturbance and does not impact upon Aboriginal community life. As such, the right to negotiate procedures (discussed below) does not apply to these types of licence application.


49. A native title claimant can object (within two months after the advertisement) to the use of the expedited procedure. If there is no such objection (or if the objection is dismissed by the Native Title Tribunal), the grant can be made. If the objection is upheld, the right to negotiate procedure must be followed. In the first round of objection cases decided, the Aboriginal objections to the expedited procedure were dismissed.[32]


50. However, since then the Federal Court has ruled that the criterion of interference with community life is not confined to direct physical interference. It can extend to spiritual interference.[33] Native title claimants are now deposing in affidavits that entry on the land by an explorationist offends their community's spiritual life, even if the community is located a long way from the land. On this basis, several Native Title Tribunal decisions have declined to permit the grant of exploration titles through the expedited process. [34]


51. The net result for the Company in relation to exploration, prospecting and miscellaneous licence applications is that at best their grant will be delayed a few months to permit the NTA advertising of the proposal to make grants according to the expedited procedure. However, if a native title claimant objects to the expedited procedure applying on the basis of spiritual interference, the objection may succeed and thus the "right to negotiate" procedures (see below) must be followed. Such procedures can in terms of the time limits prescribed under the NTA add up to 14 months to the process (and in practice much longer). It is possible (but in my opinion most unlikely) that the applications could be refused.


52. In New South Wales, the "Swiss cheese" approach was originally adopted in relation to exploration licences. This involved the grant of the licence subject to exclusion of any areas the subject of native title- a most unsatisfactory situation for a resource company because it had no way of knowing how much, if any, of the ground it was spending money to explore was included within its exploration licence. However, if an exploration licence has been granted since September 1996 subject to a condition that the holder must not explore on any land the subject of native title without the (NSW) Minister for Mineral Resources' consent, the right to negotiate procedure does not apply to the grant of the licence.[35] It must be noted that the right to negotiate procedure will apply to the grant of such Ministerial consent.[36]


53. As has been pointed out, "This should enable an exploration licence to be granted over land that includes Crown land that is potentially affected by native title without the need to follow the right to negotiate procedure. At least then that land is included in the licence and prevents others from applying for it. However, before a holder can prospect on the land, the right to negotiate procedure must be followed. The onus will therefore be on holders to undertake title searches of exploration licence areas to determine what areas can or cannot be explored without the Minister's consent." [37]


54. In Queensland, since 23 December 1996 there has been a "freeze" on the grant of all exploration titles on all land other than freehold.

(b) Mining Leases and General Purpose Leases


55. Lease applications must follow the "notification and right to negotiate" procedures. The Minister's intention to grant the lease must be advertised. Notice is given to bodies such as the National Native Title Tribunal, the Aboriginal representative body for the area and any existing native title claimant. If there is no native title claim over the relevant land within two months, the grant can be made.


56. However, if a native title claim already exists or is lodged within two months, either an agreement must be negotiated between the Minister, the native title claimant and the mining company or the intention to grant must be referred to the National Native Title Tribunal. During the statutory negotiation period of six months, the State is required to negotiate in good faith with the native title party. This is a pre-requisite to an application to the Tribunal for a future act determination.[38]


57. The Tribunal has the power to decide whether or not the grant can be made. The decision of the Tribunal can be reversed by the Commonwealth Minister for Aboriginal Affairs.


58. Renewals of mining leases are not an issue under the NTA because their first renewal (after 21 years) does not require observance of the NTA's right to negotiate procedures. Thus, once a valid mining lease is in place, title can be assured for a minimum 42 years.


59. In the Tribunal there have been two rounds of future act determinations involving mining lease applications. In the first of these[39], the Tribunal permitted the grant of the mining lease applications but only subject to conditions. These conditions were subsequently set by the Tribunal. The Federal Court has recently upheld an appeal against this determination on grounds relating to the basis of assessing compensation and the nature of the conditions imposed by the Tribunal.[40]


60. In the second round, the Tribunal (which was constituted of different members from the first round) permitted the grant of the mining lease applications without any conditions on the basis that the native title party failed to prove that the grant of the mining lease would interfere with any native title rights.


61. These inquiries were conducted as formal procedures similar to commercial litigation in the courts, requiring detailed preparation and lengthy hearings. As precedents are established, the process may become simpler but, at present, these applications must be treated very carefully and with detailed preparation.


62. Even though a mining company's objective may be to negotiate an agreement with the native title claimant rather than to contest the matter in the Tribunal, it is my view that the future act determination process should be initiated because it starts time running for the granting process and it maintains an incentive for parties to negotiate an agreement.


63. New South Wales now follows a procedure similar to Western Australia in relation to mining leases.


64. Queensland is presently not granting any new mining leases on land other than freehold. The Queensland Department is not following the "right to negotiate" procedures, seemingly preferring to do nothing.

(c) Land Titles- Compulsory Acquisition of Native Title


65. Titles may be required outside the mining legislation. A water licence or an easement for a powerline or a gas pipeline are two examples. For a major development, there may be special leases under the general land legislation for facilities such as a town, a railway or a port.


66. The grant of such titles requires the compulsory acquisition of native title rights over the subject land. In Western Australia, such an acquisition would be effected under the Land Acquisition and Public Works Act 1902 (WA) which is a "compulsory acquisition act" within the meaning of the NTA.[41] I believe that each of the other States and Territories has a "compulsory acquisition act" for purposes of the NTA.[42]


67. The intention to acquire those rights and grant that title must be notified, including advertising in the media. The procedure which follows is then similar to the procedure relating to the proposed grant of a mining lease.


68. Compensation is payable in respect of such acquisitions and the amount of such compensation will be determined under the Land Acquisition and Public Works Act 1902 (WA). The State can (and no doubt would) require the Company to pay such compensation.[43]

(d) Agreements


69. The future act "right to negotiate" procedure gives a strong bargaining position to native title claimants.


70. It is common for an Aboriginal group (and often more than one group) to lodge a native title claim after a proposal to grant a mining tenement has been advertised. The tenement applicant must then make a choice. It can follow the statutory procedure, perhaps contesting any objection to the expedited procedure or perhaps seeking to go to the Tribunal for determination of whether the grant can be made. This involves lengthy delays.


71. Alternatively the tenement applicant can negotiate an agreement with the native title claimants.


72. I recommend the course of entering into agreements.


73. I believe the long term solution for reconciling resource development with native title will lie in regional agreements between the State or Territory government and the holders of native title in that region.[44] However such regional agreements are a different species of agreement from the agreements between the resource developer and the native title claimants which I am advocating as an alternative to proceeding through the NTA's future act determination Tribunal proceedings.


74. Details of agreements are not published but it is known that many companies have already signed agreements. Already there have been developed several different styles of "precedent" documents. From the Aboriginal viewpoint, these commenced with lengthy agreements (100 pages) adapted from the forms advocated by the Northern Territory Land Councils. This type of agreement is not appropriate. It is based on the premise of Aboriginal freehold ownership of land. This is not the situation under the NTA where the title applicant and the native title claimants are entering into an agreement based on the statutory right to negotiate (under the NTA). In the long run the claimants may prove native title but the immediate basis for the agreement is limited to the native title claim and the statutory right to negotiate.


75. Many standard provisions have developed in the agreements so far signed which are broadly speaking uncontroversial although important, such as Aboriginal training and employment. As you would anticipate the most controversial aspects deal with money. As has been said: "An obvious lesson...is that Aboriginal people will support resource development on their lands where it is in their interest to do so and oppose where it is not".[45]


76. The most recently announced agreement,[46] is that of Striker Resources and the Balanggarra people who have claimed 27,000 sq. km of land in the remote Kimberley district of Western Australia. The agreement is reported as giving the claimants compensation for disruption to their land, jobs, training, made roads, and continued access to the land. In return the company gets complete operational certainty for as long as it wants to mine the area. The claimants will receive four components of cash compensation: during exploration a fixed percentage of the costs of ground disturbing exploration activities; at the mine construction stage, 1.5% of capital costs; when the mine is operational, a royalty of a percentage of the mineral sales proceeds; and annual land rentals.


77. An interesting recent development in agreements concerns North Stradbroke Island (Minjerribah) in respect of which a native title process agreement was signed by the local shire council and the relevant Aboriginal Corporation. Both the Shire and the Corporation accepted each other's rights in respect of the island and agreed to co-operate in protecting its environment. The aim is for both parties to work on a planning and management study, from which a native title agreement will be negotiated.


78. Another interesting recent development in agreements concerns the Yellabinna Reserve which comprises part of the highly prospective Gawler Craton area in South Australia. Five native title claimant groups and sixteen mining companies with exploration interests in the area jointly developed a model agreement under Part 9B of the Mining Act 1971 (SA) establishing procedures to identify land upon which a variety of exploration activities can be conducted without offence to Aboriginal heritage or any remaining native title rights.


79. The importance of the jointly developed model agreement, in my view, is that most of the native title claimants although independently organised and represented, and having some overlapping claims, were able to get together under the auspices of the Aboriginal Legal Rights Movement Inc., the Representative Body appointed under s.202 NTA a promising sign for resolution of overlapping claim problems.


80. The issue of overlapping native title claims presents a serious impediment to negotiating agreements in many cases. There is no effective control over the acceptance of claims with sometimes absurd results. For example, the Murrin Murrin nickel project in the North East Goldfields of Western Australia is now the subject of 26 overlapping native title claims. To its credit, Anaconda Nickel Limited has followed the course of negotiating agreements with each native title claimant and so far seems to have been successful.


81. Another problem is with whom to contract. Obviously the native title claimant must be a party to the agreement but often the native title claimant is only a nominee for a wider group which often wants an Aboriginal Corporation to receive funds and administer the agreement. This is fine in concept but there are examples of divisions developing within Aboriginal Corporations resulting in difficult problems for companies, which have signed agreements with the Corporation, as to deciding with which parties it should continue the contract.

Heritage/Aboriginal Site Issues


82. Aboriginal heritage questions and the operation of Aboriginal heritage legislation[47] raise significant issues for resource developers in the context of a potential allegation that the presence of a site should prevent exploration or mining operations.


83. In Western Australia, for example, it is an offence under the Aboriginal Heritage Act 1902 (WA) to knowingly enter on or damage a site. There is a statutory defence that the miner had no reason to know the land was a site.[48] It has become customary for tenement holders to arrange for a survey of the land the subject of their tenements to ascertain if it contains sites. This involves hiring Aboriginal informants, anthropologists and archaeologists to inspect the tenements.


84. This procedure is not required under the Aboriginal Heritage Act 1972 (WA) nor under the Aboriginal Heritage Act 1988 (SA) Yet it is a practice which has developed and is now universally followed. It has its flaws. A site survey has no legal status and it is always open to Aboriginal people other than those who conducted a site survey to claim that there is a site which should not be disturbed. Such complaints are not necessarily raised under the Aboriginal Heritage Act. A few months ago, a claimant group lodged an appeal with the Minister for the Environment against the approval of an environmental review and management plan for a project based on the grounds that the review did not take account of the environmental impact upon Aboriginal traditions and culture.


85. The Company will have a problem in situations where there is more than one native title claimant. Sometimes, different groups of claimants will co-operate to undertake one survey. More often, separate surveys will be required with each group. I have encountered several examples of three or four separate surveys- and one of five separate surveys. I suggest that the only practical way for the Company to handle such situations is to retain an anthropologist to co-ordinate the multiple surveys.


86. It is important for the Company to assess what Aboriginal heritage surveys have been carried out on the areas of the Project which have been or are proposed to be disturbed. It is very important to identify at an early date whether any sacred or significant sites exist and, if so, to obtain approval to disturb those sites under the relevant legislation.[49]


87. A body of practice is developing over payments for site surveys. The general rule in Western Australia is that the Company must pay for up to eight Aboriginal informants to participate at a rate of $300 each per day. In Northern Territory, the "going rate" seems to be half that amount and generally only involves two or three Aboriginals. The Company must also pay for the anthropologist and archaeologist and for costs such as transport, food and accommodation.


88. Some Aboriginal groups are happy to undertake site surveys informally. Others require site survey agreements to be negotiated first and this involves further costs for the negotiation of the agreement and sometimes a "land access fee" payable on signing. Sometimes a percentage of exploration costs is requested.


89. So a site survey can be an expensive exercise.


90. Wherever possible the Company should endeavour to secure a site clearance rather than a work program clearance. A site clearance will carry through to the development and mining stage. A work program clearance will only cover specific designated work programs (eg. a defined amount of drilling). Obviously the Company will run a big risk spending money on exploration in circumstances where it cannot be assured that the presence of a site will not later be raised to prevent mining of a resource discovered by exploration.


91. There is already a body of experience being established in documenting site survey agreements. The Company should not unquestioningly accept the "standard site survey" agreement tendered to it by Aboriginal groups without proper advice. There are many important issues to be considered in relation to site survey procedures.


92. In conclusion on this point, it would be very short sighted for the Company to overlook the importance of Aboriginal sites in the cloud of native title.

Aboriginal Issues Management Plan: Second Stage



93. Above, I recommended that the Company should formulate an Aboriginal Issues Management Plan and I explained the first stage of that process, which is the collection and compilation of information.


94. The second stage involves a review of all this information. It is necessary to formulate a plan of how to deal with the many issues which will arise. The potential invalidity of 1994/6 titles[50] and the prospect of any challenge to them must be assessed. In relation to applications for new titles (or conversion from exploration to mining tenure), decisions need to be made as to how to process those applications.[51] The Company will need to resolve with which native title claimants it should negotiate agreements and strategies for such negotiations must be formulated.


95. These are all issues the solutions to which will depend on the factual situation.


96. The most important recommendation I make is that all the essential titles (mining tenements, water licences, pipeline and powerline licences and easements, arrangements for roads, etc., etc.) should be identified now- even if their exact location cannot be pinpointed. Title applications should be made as soon as possible. The Company's bargaining position will be substantially weakened if it is forced to negotiate against a tight timetable. First, because Aboriginal consultation invariably takes a long time by the very nature of the Aboriginal cultural requirement of consensus. Secondly, because if the Aboriginal groups realise that the Company is under time pressure, their commercial expectations are likely to rise.

Conclusion



97. Although I do not wish to convey the impression that the problems caused for mining companies by the NTA and the heritage legislation are not very serious, I have found through experience so far that in most cases these issues can be "managed" if appropriate resources are devoted to them at an early date.


98. These problems will not go away. The Company cannot sit back and hope the legislators will solve the problem. The Company must formulate and then implement an Aboriginal Issues Management Plan, the basis of which is negotiation with Aboriginal groups.

Annexes
Granted Tenements - Native Title Situation

Mining Tenement	[52]
Miscellaneous Licences No?	These miscellaneous licences were granted after compliance with the NTA procedures and so there is no doubt they are valid.
Infrastructure Tenements [52]
General Purpose Leases No?	These lease were all granted after 1 January 1994 without observance of the NTA's procedures and so they may be invalid under the NTA.
SA Mining Leases	These leases were granted before 17 June 1996 without observance of the NTA's procedures and so they may be invalid under the NTA. Seek a Safety Net Agreement.
SA Mining Leases	These leases were applied for after 17 June 1996 so they cannot be granted until the applicant either obtains a determination native title does not exist or reaches agreement with any native title holders.

Applications for Tenements - Native Title Situation

		Native Title Claims which affect the Tenement Application
Tenement Application	Notification Period Closure	? WC97/?	? WC97/?	? WC97/?
Resources Tenements
Mining Lease No?	?	C	C	D
Mining Lease No?	?	C	D	C
Mining Lease No?	?	C	C	D
Project Water Tenements [53]
Miscellaneous Licence No?	?	D	C	C
Haul Road Tenements [53]
Miscellaneous Licence No?	?	C	C	D
Miscellaneous Licence No?	?	C	C	D
Infrastructure Tenements [53]
General Licence No?	?	C	C	D

Notes

[*] The writer gratefully acknowledges the assistance of Zoe Farmer (Clarke & Kann, Brisbane), Peter Walker (Ward Keller, Darwin), Chris Humphry (Hunt & Humphry, Perth), Ewan Vickery (Minter Ellison, Adelaide) and Tony Wassaf (Allen, Allen & Hemsley, Sydney) each of whom read a draft of this article and provided useful comment in relation to the jurisdiction in which he or she practices.

[2] I am adopting the terminology of the "JORC Code", (the Australasian Code for Reporting of Identified Mineral Resources and Ore Reserves).

[3] Usually, most of these facilities will be located on the mining lease(s) but portions of some facilities such as roads, pipelines and power lines may lie outside existing tenure.

[4] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

[5] Yeadon (Minister), Buck (Dunghutti People) and NSW Aboriginal Land Council, Agreement 9 October 1996.

[6] (CTH) Native Title Act 1993.

[7] (ACT) Native Title Act 1994 (NT) Validation of Titles and Actions Act 1994 (NSW) Native Title (New South Wales) Act 1994 (QLD) Native Title (Queensland) Act 1993 (SA) Native Title (South Australia) Act 1994 (TAS) Native Title (Tasmania) Act 1994 (VIC) Land Titles Validation Act 1994 (WA) Titles Validation Act 1995

[8] (WA) Titles Validation Act 1995

[9] (VIC) Land Titles Validation Act 1994 (ACT) Native Title Act 1994 (NT) Validation of Titles and Actions Act 1994 (TAS) Native Title (Tasmania) Act 1994

[10] (SA) SA has enacted an alternative State right to negotiate scheme as authorised by the Commonwealth under NTA s. 43. This scheme is operative and to date comprises the Native Title (South Australia) Act 1994; Land Acquisition (Native Title) Amendment Act 1994; Mining (Native Title) Amendment Act 1994; Opal Mining Act 1995 and the Environment, Resources and Development Court (Native Title) Amendment Act 1995. Regulations are in force for all these Acts together with Rules of Court for the Environment, Resources and Development Court.

[11] (NSW) Native Title (New South Wales) Act 1994, Parts 4 to 9. (QLD) Native Title (Queensland) Act 1993, Parts 4, 5, 6 and 7 to 10.

[12] (CTH) Aboriginal and Torres Strait Islander Heritage Protection Act 1984. (ACT) Except for the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (CTH), the only legislation relating to Aboriginal heritage in the ACT is the (CTH) Aboriginal and Torres Strait Islander Heritage Protection Act 1984. (NSW) National Parks and Wildlife Act 1974, the Environmental Planning and Assessment Act 1979, the National Trust of Australia (NSW) Act 1990 and the Mining Act 1992 (which allows the Minister to include title conditions relating to Aboriginal heritage matters). (NT) Northern Territory Aboriginal Sacred Sites Act 1989. (QLD) Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (SA) Aboriginal Heritage Act 1988. (TAS) National Parks and Wildlife Act 1970 and Aboriginal Relics Act 1975. (VIC) Archaeological and Aboriginal Relics Preservation Act 1972. (WA) Aboriginal Heritage Act 1972.

[13] The underlying land tenure may be relevant, for example, if it is freehold in which case native title has obviously been extinguished.

[14] See Part 7 below for the "notification and right to negotiate" procedures.

[15] Because any claim lodged within two months after the tenement application enfranchises the claimant in the "right to negotiate" process.

[16] It can be difficult to obtain site survey reports through official channels. In Queensland and Western Australia, they will not be handed over on request and I suggest the only ways to obtain them are either from the company for which the survey was conducted (eg a former title holder) or under Freedom of Information Act processes.

[17] In Western Australia, the State government has announced that in respect of future mining tenement grants, the responsibility for compensation will be passed to the tenement holder.

[18] Listed at note 7 above.

[19] NTA s15.

[20] Western Australia v Commonwealth [1995] HCA 47; (1985) 183 CLR 373.

[21] Wik Peoples v Queensland (1996) 141 ALR 129.

[22] Indeed, I understand that Queensland has not issued any new mineral titles since the Wik decision (except over freehold land).

[23] (1996) 135 ALR 225.

[24] A contrary argument has been put forward, namely that "Wik implicitly raises the possibility that a grant of title which is made without attention to any native title might not be invalid if the title co-exists with native title and the particular native title rights can be exercised consistently with those title rights". See B Horrigan, "Native Title and the Resources Sector after Wik- Implications for Governments, Companies, Financiers and Professional Advisers", (1997) 16 AMPLJ 44 at p55. I don't share this view but even if it is right, the problem is that no one yet knows what native title rights are held in any given situation.

[25] For example, in Western Australia, under s105A of the Mining Act 1978 (WA) The Northern Territory has enacted but not yet proclaimed specific legislation to preserve the priority of such titles: Mining (Amendment) Act 1997. In South Australia s.84A of the Mining Act 1971 (SA) provides for a "Safety Net Agreement" between the tenement holder and the Minister to ensure priority of application is retained.

[26] It is, of course, arguable that the presence of Aboriginal sites should not be relevant to this issue because Aboriginal sites are already protected (see legislation set out at n12 above). However a recurrent theme in National Native Title Tribunal decisions and judgments in the Federal Court on native title issues is the focus on Aboriginal sites.

[27] I understand that the NSW government has not given any such assurance.

[28] Media Statement, Minister for Mines, March 17, 1997.

[29] s.84A Mining Act 1971 (SA); Mining (Amendment) Act 1997 (which has not yet commenced operation).

[30] I should add that I am aware of a challenge to a freehold title issued for an irrigated farming block in the Ord Valley during 1995. Incidentally the Federal Court declined to grant an interim injunction to prevent clearing and development of the block.

[31] For the legislation in other States and Territories which corresponds with the Western Australian laws mentioned above, see Michael Hunt, Minerals and Petroleum Law, Butterworths, 1997.

[32] For example, Re Irruntyju-Papulankutja Community, Application NNTT WO95/7, Seaman P; and there are many other such decisions.

[33] Ward v WA and Smith v WA [1996] FCA 1452; (1996) 136 ALR 557, Carr J (Federal Court).

[34] Re Jeffrey James NNTT Application WO 96/21 Re Goolburthunoo (Waljen People) NNTT Application WO 96/12 Re Burringurrah Wadjari NNTT Application WO 96/13

[35] On 24 September 1996, the Commonwealth Minister made a determination under the NTA to this effect.

[36] A similar situation applies to exploration licences under the (NSW) Petroleum (Onshore) Act 1991.

[37] In "Update", published by Allens Arthur Robinson Group, November 1996.

[38] Whalley v WA, (1996) 37 ALR 561. In SA the applicant must initiate and conduct the negotiations: Part 9B, Mining Act 1971 (SA).

[39] Minister for Mines NNTT Applications WF 96/1, 5 and 11, 21 June 1996 and 23 July 1996. Minister for Mines NNTT Applications WF 96/3 and 12, 17 July 1996.

[40] Evans (Koara People) v Western Australia and Ors, Federal Court, unreported decision of Nicholson J, 8 August 1997.

[41] For the meaning of "compulsory acquisition act", see section 253 of the NTA.

[42] (NT) Lands Acquisition Amendment Act 1994 (NSW) The Native Title (New South Wales) Act 1994 defines a "State Compulsory Acquisition Act" to include the Land Acquisition (Just Terms Compensation) Act 1991, sections 21 and 22A of the Pipelines Act 1967 and other enactments. See section 97 of the Native Title (New South Wales) Act 1994 . (QLD) Native Title (Queensland) Act 1993 section 148; section 4 defines a "State Compulsory Acquisition Act" to include the Acquisition of Land Act 1967, the State Development and Public Works Organisation Act 1971 and other acts. (SA) Land Acquisition Act 1969: see also s.80J Petroleum Act 1940 in relation to land acquisition for pipelines. (WA) Land Acquisition and Public Works Act 1902.

[43] For a detailed assessment of the law and practice relating to compensation for native title, see Chris Humphry, "Compensation for Native Title: The Theory and the Reality", a paper presented on 15 August 1997 at a workshop presented by the National Native Title Tribunal and the Australian Institute of Valuers and Land Economists Inc.

[44] A position long advocated by Professor Richard Bartlett and to which I am a recent convert. For a thorough discussion of the issues, see R Bartlett, "The Reconciliation of Resource Development and Aboriginal Land Rights at Common Law in North America: Implications for Australia", March 1995, published by Australian Mining and Petroleum Law Association Limited. As Bartlett has pointed out since, the attitudes of governments in Queensland, Western Australia and the Northern Territory will need to change before this can occur: R Bartlett, "The Wik Decision and Implications for Resource Development", (1997) 16 AMPLJ 27 at p43.

[45] Bartlett, op cit n44 above, at p55.

[46] "Diamond Explorer in Native Title Deal", The West Australian, 21 August 1997.

[47] See legislation listed at n12 above

[48] I understand the situation in both Queensland and the Northern Territory is similar

[49] In Western Australia, for example, section 18 of the Aboriginal Heritage Act 1972, in Queensland, section 27 of the Cultural Record (Landscapes Queensland and Queensland Estates) Act 1987 and in South Australia section 13 of the Aboriginal Heritage Act 1988.

[50] See Part 6 above for the potential invalidity of 1994/6 titles

[51] See Part 7 above for the procedures relating to applications for new titles.

[52] It is not clear whether this title is a "right to mine" under NTA s26(2). In WA, the State takes the conservative view that it could constitute a right to mine" and thus the State will observe the "right to negotiate" in relation to its grant.

[53] It is not clear whether this title is a "right to mine" under NTA s26(2). In WA, the State takes the conservative view that it could constitute a right to mine" and thus the State will observe the "right to negotiate" in relation to its grant.

Beginning of Article