Doxford & Ors, Re [2003] QLRT 58

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re C.I. Doxford & Ors [2003] QLRT 58 PARTIES: Clyde Ian Doxford (Applicant) -and- Kudjula People #2 (First Respondent) Birri People (Second Respondent) State of Queensland (Third Respondent) FILE NO: NTML00013/2002 PROCEEDING: Application for mining lease – native title issues DELIVERED ON: 3 June 2003 DELIVERED AT: Brisbane HEARING DATE: 15 May 2003 PRESIDING MEMBERS: Koppenol P and Kingham DP ORDER/S: 1. The Tribunal’s native title issues decision is that the proposed Mining Lease No. 10243 may be granted, and that it not be subject to any conditions under section 675(1)(b) of the Mineral Resources Act 1989. (at [22]) 2. The Tribunal’s compensation trust decision is that no amount be awarded under section 707. (at [22]) CATCHWORDS: MINING LEASE APPLICATION – NATIVE TITLE ISSUES DECISION – COMPENSATION TRUST DECISION – EVIDENCE Mineral Resources Act 1989, ss. 281, 658(1), 669, 675(1), (2), 677, 716, 719, 734 (1)(b), (4)(c) Native Title Act 1993 (Cth), s. 39 Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 Western Australia v Ward (2002) 76 ALJR 1099, applied Evans v Western Australia (1997) 77 FCR 193, followed Re Koara People (1996) 132 FLR 73, followed -- 1 of 8 -- Western Australia v Thomas (1996) 133 FLR 124, followed Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 570, followed COUNSEL: Mr P.R. Smith, for the Applicant Ms J. Brien, for the Third Respondent SOLICITORS: MacDonnells, for the Applicant Crown Law, for the Third Respondent AGENT/S: No appearance for the First and Second Respondents Background [1] On 9 April 1999, an Acting Mining Warden recommended that mining lease application No. 10243 by Clyde Ian Doxford (the Applicant) be granted. The application was for the purposes of mining gold (by means of a small mobile alluvial gold treatment plant) over a surface area of 31.99ha approximately 10km south of Ravenswood, for the term of 21 years. The application area (a creek bed) was later reduced by amendment to approximately 28.40ha. [2] In 2000 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 Kudjala People #2 (the native title parties). [3] On 31 January 2002, the Applicant’s proposed mining lease was referred to the Tribunal, under section 669 of the Mineral Resources Act 1989 (MRA), for a native title issues decision. Where 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.1 [4] Accordingly the Tribunal is now required by section 734(4)(c) to make a native title issues decision. Under section 675(1), that decision must be 1 of 3: that the proposed mining lease be granted; that it be granted subject to conditions; or that it should not be granted. Because of section 734(1)(b) and 675(2), the Tribunal is also required to make a compensation trust decision under part 18 (sections 706-722). [5] The matter was heard by the Tribunal on 15 May 2003. Both the Applicant and the State (as consultation and negotiation parties under section 658(1)) were represented. Neither of the native title parties attended the hearing. The Tribunal had previously made directions for all parties to file the material upon which they relied prior to the hearing. Whilst the native title parties filed no material, Mr Walsh for the Birri 1 Section 734(2): because the tenure issues have been considered in the Acting Mining Warden’s recommendation, the Tribunal is not required to reconsider them. -- 2 of 8 -- People sent a letter to the Tribunal which was admitted as an exhibit and which we considered in making our decision. Native title issues decision [6] 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 … .” [7] Section 677 is in materially similar terms to section 39 of the Native Title Act 1993 (Cth) (NTA). The NNTT has considered section 39 on a number of occasions and has adopted these principles: there is no onus of proof as such; the Tribunal adopts a commonsense approach to evidence; and the Tribunal’s determination must be based on logical probative evidence.2 The NNTT has consistently emphasised that there needs to be evidence to demonstrate how the grant of the mining lease will affect the various factors listed in the section.3 We respectfully agree with the NNTT’s approach. Because of the High Court’s decision in Western Australia v Ward,4 it will also be necessary to give consideration to the effect upon those factors of those rights 2 Eg, Re Koara People (1996) 132 FLR 73, 81; Western Australia v Thomas (1996) 133 FLR 124, 162; Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 470, at [28]. 3 Eg, Western Australia v Thomas (1996) 133 FLR 124, 167; Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 470, at [14], [30], [31], [39]. 4 (2002) 76 ALJR 1099, at [308]. -- 3 of 8 -- necessary for the meaningful exercise of the grant. Again, there will need to be evidence to demonstrate that effect. [8] Despite previous Tribunal directions, the native title parties did not adduce any evidence whatsoever. The letter from Mr Walsh referred to above did not deal with the impact of the proposed mining on the enjoyment of the Birri People’s native title rights and interests. Evidence of their registered native title rights and interests, and those of the Kudjula People #2, is to be found in Exhibits 11 and 12 (certified copies of extracts from the NNTT Register of Native Title Claims), which were tendered by the State. [9] The Kudjala People #2’s registered native title rights and interests are as follows: “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. The relationship between the native title rights and interests described in clause 3 (of Schedule J of the application) and the other interests described in clause 4 (of Schedule J of the application) is that they are concurrent rights and interests in relation to that part of the determination area to which the other interests relate. The other interests may operate to regulate, control, suppress, suspend or postpone the exercise of the native title rights and interests. The native title group do not claim ownership of minerals, petroleum or gas wholly owned by the Crown.” The Birri People’s registered native title rights and interests are as follows: “The claimed rights and interests are subject to the following qualifications: * That exclusive possession is not claimed over areas that have been subject to valid previous non-exclusive possession act(s) done by the Commonwealth or the State, as set out in Division 2B of part 2 of the Act. * The applicants make no claim to ownership of minerals, petroleum or gas wholly owned by the Crown. The native title rights and interests claimed are those of and flowing from: a. The right to possession, occupation, use and enjoyment of the land within the claim area and designated as USL, as against the whole world, pursuant to the traditional laws and customs of the claim group. b. The right to possession, occupation, use and enjoyment of the land within the The right to possession, occupation, use and enjoyment of the land within the claim area, excluding areas designated as USL pursuant to the traditional laws and customs of the claimant group.” [10] The application area is included in the area covered by a pastoral lease which was granted in 1961.5 That lease constitutes a previous non-exclusive possession act under the NTA. Consequently the native title parties are not claiming exclusive possession of the application area. 5 PH 11/4908, CPPH 2228. -- 4 of 8 -- [11] With respect to the factors set out in section 677(1), it should be noted that there was no evidence of how the native title parties enjoyed their (registered) rights and interests; or of their way of life, culture or traditions; their social, cultural or economic structures; or of their freedom of access to the land or to carry out rites, ceremonies or other culturally significant activities on the land; or of any area or site of particular significance to them in accordance with their traditions; or of their interests, proposals, opinions or wishes in relation to the management, use or control of the land. Nor was there any evidence of the effect (if any) on those factors of the grant of the proposed mining lease or those rights necessary for its meaningful exercise. [12] It is unfortunate for the native title parties that they did not adduce any evidence. 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.6 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. In his letter, Mr Walsh informed the Tribunal that because of a lack of resources, the Birri People would not participate in the hearing. We accept that lack of resources is an issue for indigenous groups, although this is something the Tribunal is powerless to affect. Ultimately the Tribunal has a statutory function to fulfil and must proceed on the basis of the evidence before it. [13] Various conditions were suggested by the State to be appropriately applicable to the grant of this lease. They related to cultural heritage management procedures. The Applicant gave evidence at the hearing and we accept that he is aware of and will comply with his statutory obligations in that regard under the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. The NNTT’s practice is not to impose conditions unless the evidence suggests a need for them.7 We respectfully agree with that approach. In the present case, there was no evidence that suggested a need for the conditions proposed. Moreover, the Applicant gave evidence (which we accept) that a cultural heritage survey had been conducted by Mr Patrick Walsh (one of the Birri People) who later told the Applicant that no culturally significant items had been found. We also note that the area applied for excludes the banks of the subject creek, where items of cultural heritage significance are more likely to be located. Mining will occur only within the bed of the creek. In the circumstances, we do not propose to impose any section 675 conditions. [14] The only other remaining factor of present relevance in section 677 is the public interest. We accept that there is a public interest in a healthy mining industry and economy.8 We also accept the evidence of Mr Smart (a State government officer) that small scale mining operations such as the mining lease application in the present case have economic and social significance to communities at a local level in the more remote areas of the State. The Acting Mining Warden noted that it appeared that there were no endangered flora or fauna within the application area; that there were no public utilities on or across it; and that there were no sites of historical 6 Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 470, at [28]. 7 Ibid at [46]. 8 Evans v Western Australia (1997) 77 FCR 193, 215. -- 5 of 8 -- interest or Aboriginal significance within the area. The cultural heritage survey results (as conveyed to the Applicant) support the latter view. [15] Having regard to the above considerations, we are satisfied on the evidence presented that this mining lease should be granted, and without any of the conditions which were suggested by the State. Compensation trust decision [16] 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— (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.” [17] It will be observed that section 707(5A) requires the Tribunal to apply “all relevant principles applicable under” the MRA “for deciding amounts of compensation”. The Applicant submitted that although the Tribunal may be assisted in its determination by reference to section 281 (Determination of compensation by tribunal),9 that 9 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). -- 6 of 8 -- section does not prescribe a method of valuation. We do not accept that submission. In our view, 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. [18] The thrust of section 707(1) and (3)(a) is that the native title claimants should be compensated for the expected effect of the grant of the proposed mining lease (and those rights necessary for its meaningful exercise)10 on their native title rights and interests,11 including for activities to be carried out under the mining lease. [19] When determining compensation in this or any other case, the Tribunal must assess an appropriate figure having regard to the evidence that is adduced. The NNTT adopts a similar approach.12 If no evidence on the point is adduced, we are unable to see how any amount by way of compensation could ordinarily be awarded. Nor do we think that some nominal or arbitrary amount should be awarded. As we have earlier observed, in cases where the factual details are peculiarly within the knowledge of a particular party—here the native title parties, one expects that they will adduce the evidence concerned. [20] No evidence about compensation was adduced by the native title parties. However the Tribunal must proceed on the material (or lack thereof) before us. In doing so, we 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.13 (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.” 10 Western Australia v Ward (2002) 76 ALJR 1099, at [308]. 11 Whilst it is unclear from s. 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. 12 Eg, Western Australia v Thomas (1996) 133 FLR 124,194. 13 Sections 716 and 719. -- 7 of 8 -- [21] In the circumstances, and having considered all of the material and submissions before us, we are not able to award any amount of compensation under section 707(1) or (3)(a). Orders [22] For the reasons set out above, the orders that we make are as follows: 1. The Tribunal’s native title issues decision is that the proposed Mining Lease No. 10243 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. -- 8 of 8 --