Fazzari, Re [2005] QLRT 74

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Fazzari [2005] QLRT 74 PARTIES: Re Application for Mining Lease No. 60334 by Frank Fazzari FILE NO/S: NTML148/03 PROCEEDING: Application for mining lease DELIVERED ON: 23 June 2005 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBERS: Koppenol P and Windridge MR ORDER/S: The Tribunal’s native title issues decision is that Application for Mining Lease No. 60334 applied for by the Applicant, may be granted for the purpose, area and term applied for, subject to the contract conditions set out in Attachment A. (at [6]) CATCHWORDS: MINING – MINING LEASE APPLICATION – NATIVE TITLE ISSUES DECISION – COMPENSATION Mineral Resources Act 1989, ss 271(1)(c), 675(1), 677(1), 711 Land and Resources Tribunal Act 1999, s. 41(2) COUNSEL: N/A SOLICITORS: Mr Fazzari (Applicant) appeared on his own behalf Ms L. O’Neill (Department of Natural Resources and Mines) for the State of Queensland Mr F. Power (Queensland South Representative Body Aboriginal Corporation) as amicus curiae [1] KOPPENOL P: On 13 August 2004, I recommended that subject to compliance with all relevant provisions of Part 17 (native title provisions for mining leases) of -- 1 of 3 -- the Mineral Resources Act 1989 (the Act), Application for Mining Lease No. 60334 applied for by the Applicant be granted for the purpose, area and term applied for.1 [2] Earlier this month, the Honourable the Minister for Natural Resources and Mines referred Mr Fazzari’s application back to the Tribunal under section 271(1)(c) of the Act for the Tribunal to make a native title issues decision under section 675(1). [3] Section 675(1) of the Act provides as follows: “675 Nature of native title issues decision (1) The native title issues decision must be 1 of the following— (a) that the proposed mining lease may be granted; (b) that the proposed mining lease may be granted, but subject to either or both of the following— (i) that conditions, described or identified in the native title issues decision, are to be included in the mining lease; (ii) that conditions (contract conditions), described or identified in the native title issues decision, are required to be complied with by 1 or more of the consultation and negotiation parties (even though the conditions are not included in the mining lease); (c) that the proposed mining lease should not be granted.” [4] At the directions hearing on 6 June, the State of Queensland submitted that the appropriate native title issues decision would be that the proposed mining lease may be granted but subject to certain conditions (contract conditions) as set out in Exhibit 3. Mr Fazzari indicated that he was agreeable to that and the native title parties were given until midday yesterday to make any submissions about those proposed conditions. No submissions were made. [5] This matter was heard by a panel constituted by Windridge MR and me; however the decision is required to be made by me alone.2 I have examined the proposed contract conditions and regard them as appropriate in the present case. In so concluding, I have taken into account the various factors set out in section 677(1)-(3),3 insofar as I 1 Re Fazzari [2004] QLRT 75. 2 Land and Resources Tribunal Act 1999, section 41(2). In making my decision, I conferred with Mr Windridge. 3 Section 677(1)-(3) is in the following terms: “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. (3) In complying with subsections (1) and (2) the tribunal must take into account all objections lodged under this division to the granting of the proposed mining lease, and any other documents lodged or filed under this division.” -- 2 of 3 -- was able to having regard to the material before me. I note that those conditions include provision for the payment of compensation (clause 2). In those circumstances, section 711 of the Act applies to make it a condition of the mining lease that the leaseholder must comply with that clause.4 [6] There will therefore be an order that the Tribunal’s native title issues decision is that the proposed Mining Lease No. 60334 may be granted subject to the contract conditions set out in Attachment A. 4 Section 711 provides as follows: “711 Conditions of agreement or compensation decision If there is an agreement about compensation under this part, or a compensation decision, for a relevant act relating to a mining claim or mining lease, it is a condition of the mining claim or mining lease that the holder of the claim or lease must comply with the terms of the agreement or decision that apply to the holder.” -- 3 of 3 --