BHP Billiton Minerals Pty Ltd & Teck Cominco Australia Pty Ltd (formerly Teck Australia Minerals Pty Ltd) v Kalkadoon People [2002] QLRT 34

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: BHP Billiton Minerals Pty Ltd & Teck Cominco Australia Pty Ltd (formerly Teck Australia Minerals Pty Ltd) v Kalkadoon People [2002] QLRT 34 PARTIES: BHP Billiton Minerals Pty Ltd & Teck Cominco Australia Pty Ltd (formerly Teck Australia Minerals Pty Ltd) (Applicants) and Kalkadoon People (Respondents) FILE NO/S: AAXP00034/2002 PROCEEDING: Application for access agreement DELIVERED ON: 25 June 2002 DELIVERED AT: Brisbane HEARING DATE: 25 June 2002 PRESIDING MEMBER: Koppenol P 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 5. (at [9]) 2. Pursuant to s. 491A(3)(b) of the MRA, the Tribunal decides by consent that the amount of compensation for the effect of the grant of EPM 13284, 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, 489A, 491A, 709, Pt 18 Land and Resources Tribunal Act 1999, ss. 15, 39, 40, 41, Sch 1 -- 1 of 4 -- COUNSEL: N/A SOLICITORS: Ms Z. Farmer, for the Applicants Mr S. Sexton, for the Respondent AGENT/S: 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 13284) over the land concerned. That land is the subject of 2 native title applications. This access application is concerned only with that part of the land which is claimed by the Kalkadoon People. The Respondents have a registered native title claim over that land. 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 150km north-north-west of Cloncurry in north-west Queensland. An area of 50 sub-blocks (as defined in s. 126 of the MRA) is the subject of EPM 13284. The area to be accessed is only that part of the EPM area which is subject to the Kalkadoon People’s application for determination of native title. The Applicants propose to conduct surveying, drilling and sampling activities. Minimal clearing or excavation will be necessary for the mobile drill rig pad. Where possible, existing tracks will be used for all ground-based work. 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 drilling results from year 1. If results are encouraging, further geophysics and drilling 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 directions hearing last Friday, I was informed that the parties have now agreed upon the terms of the access agreement which they are seeking. The parties also 1 Section 491A(2)(b) & (3)(b). -- 2 of 4 -- asked me to order that the terms of that agreement should remain confidential. Because issues of commercial-in-confidence negotiations and (to a lesser extent) cultural sensitivities were involved, I acceded to that request and ordered accordingly. Accordingly, the proposed access agreement has been marked Confidential Exhibit 5. [5] The matter was heard by a Tribunal panel consisting of Dr E. Fesl, Mr D. Webster and myself. A panel was required even though the parties had themselves agreed upon the access agreement which they sought.2 The decision, however, is required to be made only be me as the presiding member.3 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 I 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] I have examined the document which is Confidential Exhibit 5 and am satisfied that that proposed access agreement includes provisions about each of the subjects set out 2 A panel was required by ss 39(2)(a), 40(1)(b) & Schedule 1 (General) of the Land and Resources Tribunal Act 1999 (LRT Act). Dr Fesl and Mr Webster are members of the Land Tribunal established under the Aboriginal Land Act 1991 – and are thus non-presiding members of the Land and Resources Tribunal: see LRT Act, s. 15(1)(b) & (3). 3 LRT Act, s. 41(2). As to the role of a non-presiding member included in the panel, see s. 41(4)(a) & (b). -- 3 of 4 -- in s. 489A(1)(a)-(e) & (g)-(i). Compensation, which is the subject of s. 489A(1)(f), is addressed below. I 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 trust decision.4 However, the parties have agreed that the compensation trust decision here should be nil and in those circumstances, that is what I will order. Orders [9] Having regard to the foregoing, the orders that I 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 5. 2. Pursuant to s. 491A(3)(b) of the MRA, the Tribunal decides by consent that the amount of compensation for the effect of the grant of EPM 13284, including for activities carried out under that permit, and any renewal of it, is nil. 4 MRA, s. 709(1). -- 4 of 4 --