Anglo American Exploration (Australia) Pty Ltd as Joint Venture Manager for BHP Billiton Minerals Pty Ltd v Kalkadoon People [2002] QLRT 59

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Anglo American Exploration (Australia) Pty Ltd as Joint Venture Manager for BHP Billiton Minerals Pty Ltd v Kalkadoon People [2002] QLRT 59 PARTIES: Anglo American Exploration (Australia) Pty Ltd as Joint Venture Manager for BHP Billiton Minerals Pty Ltd (Applicants) and Kalkadoon People (Respondents) FILE NO/S: AAXP00047/2002 PROCEEDING: Application for access agreement DELIVERED ON: 9 September 2002 DELIVERED AT: Brisbane HEARING DATE: 9 September 2002 PRESIDING MEMBERS: Koppenol P and Kingham DP ORDER/S: 1. Pursuant to s. 491A(2)(b) of the Mineral Resources Act 1989 (MRA), the Tribunal decides by consent that the terms of the access agreement in this matter be those as set out in Confidential Exhibit 2. (at [9]) 2. Pursuant to s. 491A(3)(b) and part 18 of the MRA, the Tribunal decides by consent that the amount of compensation for the effect of the grant of EPM 13296, including for activities carried out under that permit, and any renewal of it, is nil. (at [9]) CATCHWORDS: ACCESS AGREEMENT – LOW IMPACT EXPLORATION PERMIT – NATIVE TITLE PARTY – DECISION AS TO TERMS OF AGREEMENT – COMPENSATION Mineral Resources Act 1989, ss. 126, 485, 489A, 491A, 709, Pt 18 Land and Resources Tribunal Act 1999, ss 39, 40, Sch 1 COUNSEL: N/A -- 1 of 4 -- SOLICITORS: Ms Z. Farmer, for the Applicants Mr S. Sexton, for the Respondent AGENT/S: N/A Introduction [1] This is an application for an access agreement under s. 491A of the Mineral Resources Act 1989 (MRA). The Applicants are the holders of a low impact exploration permit (EPM 13296) over the land concerned. That land is the subject of 2 native title applications, however the Kalkadoon People are the only registered native title party for the purposes of s. 485 of the MRA. The underlying land tenure is pastoral leasehold. In accordance with s. 491A(1), the Applicants asked the Mining Registrar to refer the matter to the Tribunal for a decision. The matter was referred accordingly. [2] The land is situated about 70km north-west of Mt Isa in north-west Queensland. An area of 149 sub-blocks (as defined in s. 126 of the MRA) is the subject of EPM 13296. The Applicants propose to conduct surveying, clearing, drilling and excavation activities of a low impact nature. Minimal clearing or excavation will be necessary for the mobile drill rig pad. The drill sites will be 25m x 25m. The exploration program in the second year of the EPM (which was granted for an initial term of 5 years) will be dependent upon the testing results from year 1. If results are encouraging, further drilling and related activities may be undertaken. [3] The Tribunal’s role in such cases is to decide the terms of the access agreement and to also make a compensation or compensation trust decision for the registered native title party under part 18 of the MRA.1 [4] At the hearing today, we were informed that the parties had agreed upon the terms of the access agreement which they are seeking. The parties also asked us to order that the terms of that agreement should remain confidential. Because issues of commercial-in-confidence negotiations and cultural sensitivities were involved, we acceded to that request and ordered accordingly. The proposed access agreement has been marked Confidential Exhibit 2. 1 Section 491A(2)(b) & (3)(b). -- 2 of 4 -- [5] The matter was heard by a Tribunal panel consisting of Deputy President Kingham and myself.2 Access Agreement [6] The MRA does not prescribe any matters that must be included in an access agreement. Although s. 489A sets out a number of provisions that may be included, in the end it would seem to be a question of determining what is appropriate in all of the circumstances. In that regard, s. 489A should we think be taken into account. It provides as follows: “Access agreements 489A.(1) An access agreement for entry to an area under a low impact exploration permit may include provisions about any of the following— (a) the periods during which the permit holder is to be permitted access to the area; (b) the parts of the area the permit holder may access and the means by which access may be gained; (c) the kinds of low impact activities that may be carried out on the area; (d) the requirements to be observed by the permit holder when on the area; (e) the things the permit holder needs to do to protect the environment in carrying out low impact activities on the area; (f) compensation to be paid under part 18; (g) how disputes arising in connection with the agreement are to be resolved; (h) the way the agreement may be changed; (i) other matters the parties to the agreement agree to provide for in the agreement. (2) Subsection (3) applies if there is an inconsistency between— (a) a provision of an access agreement; and (b) either of the following— (i) a provision of this Act; (ii) a condition of an exploration permit. (3) The provision of the Act or condition of the exploration permit prevails.” [7] We have examined the document which is Confidential Exhibit 2 and are satisfied that that proposed access agreement includes provisions about each of the subjects set out in s. 489A(1)(a)-(e) & (g)-(i). Compensation, which is the subject of s. 489A(1)(f), is addressed below. We also regard the scope and wording of that document as appropriate for the purposes of s. 491A of the MRA. Compensation [8] In this case, because there has not yet been a native title determination by the Federal Court, any decision by the Tribunal about compensation would be a compensation 2 A panel was required by ss. 39(2)(aa), 40(1)(b) & Schedule 1 (General) of the Land and Resources Tribunal Act 1999. -- 3 of 4 -- trust decision.3 However, the parties have agreed that the compensation trust decision here should be nil and in those circumstances, that is what we will order. Orders [9] Having regard to the foregoing, the orders that we make are as follows: 1. Pursuant to s. 491A(2)(b) of the MRA, the Tribunal decides by consent that the terms of the access agreement in this matter be those as set out in Confidential Exhibit 2. 2. Pursuant to s. 491A(3)(b) and part 18 of the MRA, the Tribunal decides by consent that the amount of compensation for the effect of the grant of EPM 13296, including for activities carried out under that permit, and any renewal of it, is nil. 3 MRA, s. 709(1). -- 4 of 4 --