Carpentaria Gold Pty Ltd v Kudjula People & Anor [2006] QLRT 107

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Carpentaria Gold Pty Ltd & Ors [2006] QLRT 107 PARTIES: Carpentaria Gold Pty Ltd (Applicant) -and- Kudjula People #2 (First Respondent) State of Queensland (Second Respondent) FILE NO: NTML74/06 PROCEEDING: Application for mining lease – native title issues DELIVERED ON: 19 September 2006 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 19 September 2006 PRESIDING MEMBERS: Koppenol P ORDER/S: 1. The Tribunal’s native title issues decision is that the proposed Mining Lease No. 10237 may be granted, and that it not be subject to any conditions under section 675(1)(b) of the Mineral Resources Act 1989. (at [18]) 2. The Tribunal’s compensation trust decision is that no amount be awarded under section 707. (at [18]) 3. No order as to costs. (at [18]) CATCHWORDS: MINING LEASE APPLICATION – NATIVE TITLE ISSUES DECISION – COMPENSATION TRUST DECISION – EVIDENCE Mineral Resources Act 1989, ss 269(4), 281, 658(1), 659, 669, 675(1), (2), 675(1)(b), 677, 677(1)(a) & (b) & (d), 707, 707(1) & (3)(a), 707(5A) 659, 669, 675(1), (2), 734(1)(b) & (4)(c), Land and Resources Tribunal Act 1999, s 44(1) & (2) Western Australia v Ward (2002) 213 CLR 1, applied Re Doxford [2003] QLRT 103, followed COUNSEL: N/A -- 1 of 6 -- SOLICITORS: K. Green (agent) for Applicant C. Tran, Department of Natural Resources and Water for Second Respondent No appearance for First Respondent Background [1] On 2 August 1999, an Acting Mining Warden recommended that mining lease application No. 10237 by the applicant be granted. The application was originally for the purposes of mining silver ore, gold, bismuth ore, copper ore, lead ore, antimony ore, zinc ore and associated infrastructure over a surface area of 275.4ha near Ravenswood, for the term of 10 years. The application area was later reduced by amendment to 10.87ha and the primary purpose of the lease is now for waste stockpiles. [2] In 1998 and 2001, two native title claims were registered by the National Native Title Tribunal (NNTT) over areas which included the application area. Those claims were by the Birri People and the first respondent, respectively. A negotiated agreement under section 659 of the Mineral Resources Act 1989 (the Act) was later reached between the applicant and the Birri People. However, agreement could not be reached with the first respondent, even though 2 of the 3 registered claimants representing the first respondent signed the agreement proposed by the applicant. [3] On 11 April 2006, the applicant’s proposed mining lease was referred to the Tribunal, under section 669 of the Act, for a native title issues decision. When an application is made for a mining lease over land for which native title is held or claimed, the Tribunal must make 2 decisions: a recommendation under section 269(4) and a native title issues decision. In this case, the Acting Mining Warden has already made a recommendation under section 269(4). Accordingly, all that remains is for the Tribunal to make a native title issues decision as required by section 734(4)(c).1 Under section 675(1), that decision must be 1 of 3: (a) that the proposed mining lease be granted, (b) that it be granted subject to conditions, or (c) that it should not be granted. Because of sections 734(1)(b) and 675(2), the Tribunal is also required to make a compensation trust decision under part 18 (sections 706-722). [4] The matter was heard by the Tribunal this morning. It was originally listed to be heard by a panel of Kingham DP and me. Since then, Kingham DP was appointed a District Court judge and pursuant to section 44(1) and (2) of the Land and Resources Tribunal Act 1999, I made a direction that I would continue and finish the matter myself. Both the applicant and the second respondent State (as consultation and negotiation parties under section 658(1)) were represented. The first respondent did not attend the hearing. The Tribunal had previously made directions for all parties to file the material upon which they relied prior to the hearing. The first respondent did not file any material. 1 Because the tenure issues have been considered in the Acting Mining Warden’s recommendation, the Tribunal is not required to reconsider them: section 734(2). -- 2 of 6 -- Native title issues decision [5] Relevantly, section 677 provides as follows: “677 Tribunal’s native title issues decision (1) In making its native title issues decision, the tribunal must take into account the following— (a) the effect of the grant of the proposed mining lease on— (i) the enjoyment by the registered native title parties of their registered native title rights and interests; and (ii) the way of life, culture and traditions of any of the registered native title parties; and (iii) the development of social, cultural and economic structures of any of the registered native title parties; and (iv) the freedom of access by any of the registered native title parties to the land; and (v) the freedom of any of the registered native title parties to carry out rites, ceremonies or other activities of cultural significance on the land in accordance with their traditions; and (vi) any area or site on the land of particular significance to the registered native title parties in accordance with their traditions; (b) the interests, proposals, opinions or wishes of the registered native title parties in relation to the management, use or control of land in relation to which there are registered native title rights and interests of the registered native title parties that will be affected by the grant of the proposed mining lease; (c) the economic or other significance of the grant of the proposed mining lease to Australia, Queensland, the area in which the land is located and Aboriginal peoples and Torres Strait Islanders who live in the area; (d) any public interest in the granting of the proposed mining lease; (e) any other matter the tribunal considers relevant. (2) In deciding the effect of the grant of the proposed mining on the matters mentioned in subsection (1)(a), the tribunal must also take into account the nature and extent of— (a) existing non-native title rights and interests in relation to the land; and (b) existing use of the land or waters by persons other than the registered native title parties … .” [6] In Re Doxford [2003] QLRT 58, Kingham DP and I said, of section 677, that:  there is no onus of proof as such;  the Tribunal’s determination must be based on logically probative evidence; and  there needs to be evidence to demonstrate how the grant of the mining lease will affect the various factors listed in the section. In doing so, we respectfully agreed with and adopted the approach taken in similar matters by the NNTT. Because of the High Court’s decision in Western Australia v Ward,2 it will also be necessary to give consideration to the effect upon those factors of those rights necessary for the meaningful exercise of the grant. Again, there will need to be evidence to demonstrate that effect. [7] The first respondent’s registered native title rights and interests are as follows:3 2 (2002) 213 CLR 1, at [308]. 3 NNTT claimant application summary dated 8 March 2006. -- 3 of 6 -- “The native title rights and interests claimed are those of and flowing from the right to possession, occupation, use and enjoyment of the claimed area, pursuant to the traditional laws and customs of the claim group. Where an area is covered by a valid, previous non exclusive possession act (section 23F of the Native Title Act), the native title claim group does not claim possession, occupation, use and enjoyment of the area to the exclusion of all others. The native title claim group does not claim native title rights and interests that have been extinguished by operation of law.” [8] Despite previous Tribunal directions, the first respondent did not file or adduce any evidence whatsoever. There is no other evidence before me concerning the factors set out in section 677(1)(a) or (b). That is unfortunate for the first respondent. Although there is no onus of proof on any of the parties, one may expect that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge.4 They may have been able to demonstrate that their registered rights and interests would be affected in some way by the grant itself or the rights conferred. However that is mere speculation and the Tribunal cannot act on speculation. Ultimately, the Tribunal has a statutory function to fulfil and must proceed on the basis of the evidence before it. [9] The only remaining factor of present relevance in section 677 is the public interest (section 677(1)(d)). I accept (as the Tribunal did in Doxford) that there is a public interest in a healthy mining industry and economy. I also accept the evidence of Mr Fitzgerald (the applicant’s accountant) that this mining operation will provide significant employment opportunities and contribute significant monetary royalties to the State. [10] Having regard to the above considerations, I am satisfied on the evidence presented that this mining lease should be granted and without any conditions. Compensation trust decision [11] Relevantly, native title compensation is addressed in section 707, which provides as follows: “Native title compensation 707(1) An entity is entitled to compensation for the effect of a relevant act on the entity’s native title rights and interests, including for activities carried out under the mining tenement the subject of the relevant act as a result of the relevant act. (2) However, the entity may receive compensation only in a way provided for in this part. (3) Nothing in subsections (1) and (2) stops— (a) compensation from being agreed to before a relevant act is done, based on the expected effect of the relevant act on an entity’s native title rights and interests; or (b) a compensation decision or compensation trust decision being made, in accordance with the requirements of the native title provisions, including this part, before a relevant act is done, having regard to the expected effect of the relevant act on an entity’s native title rights and interests. (4) Subject to the provisions of this part under which the tribunal may require the State to pay an amount of compensation in relation to a relevant act, the tribunal may order only the following to pay an amount under a compensation decision or compensation trust decision for a relevant act— 4 Re Doxford [2003] QLRT 58, at [12]. -- 4 of 6 -- (a) the applicant for, or the holder for the time being of, the mining tenement the subject of the relevant act; (b) another entity, if the tribunal considers that it would be just and equitable that the entity should be ordered to pay the amount, having regard to the circumstances of the entity’s past or present, direct or indirect, financial or other connection with— (i) the relevant act, including the activities carried out under the mining tenement the subject of the relevant act; or (ii) an entity that is or was the holder of the mining tenement the subject of the relevant act. (5) There is no entitlement to be compensated more than once for the effect on native title rights and interests of an act if compensation has already been provided under this part for what is essentially the same effect of the same act. (5A) Without limiting subsection (1), the tribunal, in arriving at a compensation decision or compensation trust decision, must apply all relevant principles applicable under this Act for deciding amounts of compensation. (6) The tribunal must not, in relation to any part of the land the subject of a relevant act relating to a mining claim or mining lease, make more than 1 compensation trust decision for the relevant act.” [12] It will be observed that section 707(5A) requires the Tribunal to apply “all relevant principles applicable under” the Act “for deciding amounts of compensation”.5 As the Tribunal said in Doxford, section 281 outlines the matters to be taken into account in assessing the amount of compensation payable, and is therefore applicable to the exercise required under section 707.6 [13] The thrust of section 707(1) and (3)(a) is that native title claimants should be compensated for the expected effect of the grant of the proposed mining lease (and 5 Section 281 provides as follows: “Determination of compensation by tribunal 281(1) At any time before an agreement is made pursuant to section 279 or 280, a person who could be a party to such agreement may apply in writing to the mining registrar to have the tribunal determine the amount of compensation and the terms, conditions and times of payment thereof. (2) The tribunal is hereby authorised to hear and determine matters referred to in subsection (1). (3) Upon an application made under subsection (1), the tribunal shall settle the amount of compensation an owner of land is entitled to as compensation for— (a) in the case of compensation referred to in section 279— (i) deprivation of possession of the surface of land of the owner; (ii) diminution of the value of the land of the owner or any improvements thereon; (iii) diminution of the use made or which may be made of the land of the owner or any improvements thereon; (iv) severance of any part of the land from other parts thereof or from other land of the owner; (v) any surface rights of access; (vi) all loss or expense that arises; as a consequence of the grant or renewal of the mining lease; and (b) in the case of compensation referred to in section 280— (i) diminution of the value of the land of the owner or any improvements thereon; (ii) diminution of the use made or which may be made of the land of the owner or any improvements thereon; (iii) all loss or expense that arises; as a consequence of the grant or renewal of the mining lease. (4) In assessing the amount of compensation payable under subsection (3)— (a) where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered; (b) no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned; (c) if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined; (d) loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgment of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant; (e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3). (5) In any case the tribunal may determine the amounts and the terms, conditions and times when payments aggregating the total compensation payable shall be payable. (6) An amount of compensation decided by agreement between the parties, or by the tribunal, is binding on the parties and the parties’ personal representatives, successors and assigns. (7) The tribunal shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit.” 6 [2003] QLRT 58, at [17]. -- 5 of 6 -- those rights necessary for its meaningful exercise)7 on their native title rights and interests,8 including for activities to be carried out under the mining lease. [14] When determining compensation in this or any other case, the Tribunal must assess an appropriate figure having regard to the evidence that is adduced. If no evidence on the point is adduced, I am unable to see how any amount by way of compensation could ordinarily be awarded. Nor should some nominal or arbitrary amount be awarded. As earlier observed, in cases where the factual details are peculiarly within the knowledge of a particular party—here the first respondent native title party, one expects that they will adduce the evidence concerned. [15] No evidence about compensation was adduced by the first respondent. However, the Tribunal must proceed on the material (or lack thereof) before it. In doing so, I have also taken account of other provisions of Part 18, which would appear to confer upon the ultimate native title holder for the land an entitlement to apply for a compensation decision.9 [16] In the circumstances, and having considered all of the material and submissions before me, I am not able to award any amount of compensation under section 707(1) or (3)(a). Costs [17] Both the applicant and the second respondent submitted that no order as to costs should be made and I will make that order. Orders [18] For the reasons set out above, the orders that I make are as follows: 1. The Tribunal’s native title issues decision is that the proposed Mining Lease No. 10237 may be granted, and that it not be subject to any conditions under section 675(1)(b). 2. The Tribunal’s compensation trust decision is that no amount be awarded under section 707. 3. No order as to costs. 7 Western Australia v Ward (2002) 213 CLR 1, at [308]. 8 Whilst it is unclear from section 707 as to whether it is “claimed rights and interests” or “registered rights and interests” which are in issue, the point need not be determined in this case because there is no material difference here between the two. 9 Sections 716 and 719. -- 6 of 6 --