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Environment Resources and Development Court [Native Title] (Trenorden J)
21 July 1999
Native title - Application for Summary Determination authorising mining operations pursuant to s 630 of the Mining Act (SA) 1971 - consideration of objection by Native Title Party to validity of Notice - whether Notice served in accordance with the Act - consideration of scheme under Pt 9B of Mining Act for dealing with mining operations on native title land.
The applicant, Laura Holdings Pty Ltd, holds Exploration Licences to explore over an area in the far north of South Australia. On 10 March 1999, the applicant gave notice pursuant to s 63M of the Mining Act 1971 (SA) that the applicant intended to carry out mining operations within the area covered by the Exploration Licences. The notice further indicated that the applicant proposed to rely on s 630 (the expedited procedure provision) of the Mining Act.
The notice identified the area which was the subject of the proposed mining operations as "'Out of Hundreds" Oodnadatta' and by reference to an attached map showing the limits of each exploration licence, and a description of the boundaries of the area of each licence. The general nature of the proposed mining operations was described as 'Drilling of targets to be identified as a result of airborne surveys'.
On 19 May 1999 the Eringa Native Title Claimants, who have a native title claim over the area covered by the applicants' Exploration Licences, filed a Notice of Objection in the Environment Resources and Development Court to the applicants' reliance on the provisions of s 630 of the Mining Act. The objection included an allegation that the notice issued by the applicant was invalid.
On 8 June 1999 the applicant made an application to the Court for a summary determination authorising mining operations pursuant to s 630 of the Mining Act.
The Court considered as a preliminary issue, going to its jurisdiction, the objection of the Eringa Claimants that the notice given by the applicant pursuant to s 63M was invalid. The grounds of this objection were that the notice:
a) failed to identify with sufficient detail the location or nature of the proposed mining operations as required by s 63M(2) of the Mining Act, and
(b) was not given in accordance with the method set out in Pt 5 of the Native Title (South Australia) Act 1994 (SA).
1. In view of the purpose and consequence of a notice issued pursuant to s 63M, and the strict timeframes imposed under the legislation, any notice issued pursuant to that section must both sufficiently identify the land and adequately describe the general nature of the mining operations so as to enable a person to understand what is proposed and where. The legislation does not support any contention that the s 63M notice must be more specific where there is a stated intention to rely upon the expedited procedure provisions.
2. The notice, in failing to identify where, within the areas covered by each of the exploration licences, the proposed mining operations were to be carried out, inadequately identified the land on which the proposed mining operations were to be carried out, in breach of s 63M.
3. The notice, in failing to identify and describe in general terms all of the operations proposed on the land for which an agreement or determination was sought, insufficiently described the general nature of the proposed mining operations to be carried out on the land, in breach of s 63M of the Mining Act.
4. In view of the significance of the information required to be given by s 63M(2) of the Mining Act for recipients of the notice, failure to comply with these provisions must invalidate the notice.
5. The question of the effect of failing to correctly serve the notice on the appropriate Commonwealth Minister in accordance with s 30 of the Native Title (South Australia) Act was not considered.
The objection in relation to the validity of the notice was upheld. Accordingly, the Court had no jurisdiction to entertain the application for summary determination and the application was struck out.
The applicant, Laura Holdings Pty. Ltd., made application to this Court for a summary determination authorising mining operations, pursuant to s 630 of the Mining Act 1971. The application was lodged on 8 June 1999. This Court has sole jurisdiction to deal with an application of this nature: s 630 Mining Act and s 27 Native Title Act 1993 (Cth).
The application followed the giving of notice pursuant to s 63M of the Mining Act by the applicant, which notice was dated 10 March 1999. In the notice the applicant indicated that it proposed to rely on s 630 of the Mining Act, namely that the mining operations would have the character described in subs 630(1), and accordingly the expedited procedure provisions of the Mining Act would apply. By notice dated 19 May 1999 Messrs Johnston Withers, solicitors, on behalf of Ruth McKenzie, Joe Stuart and Emily Churchill (known as 'the Eringa claimants') objected to the applicant’s reliance on the expedited procedure provisions contained in s 630 of the Mining Act. The Eringa claimants have a native title claim pending in the National Native Title Tribunal (Application SC96/3). The area of the Eringa claimants’ native title claim includes the land contained within Exploration Licence No 2065. The applicants’ notice was in respect of the whole of the land contained in Exploration Licences EL2064 and EL2065.
The Eringa claimants have lodged an objection. The Court must give them an opportunity to be heard: s 630(4), Mining Act. As the objection included an allegation that 'the notice given by Laura Holdings Pty. Ltd. was not given in accordance with the method set out in Part 5 of the Native Title (South Australia) Act 1994', the Court determined to deal with that issue as a preliminary matter, going to its jurisdiction. On 23 June 1999 the Court ordered that the Eringa claimants provide particulars of their objection in relation to the alleged failure by the applicant to give notice in accordance with the legislation, to the representative for the applicant, by 2 July 1999. A document entitled 'Particulars of Objection in Relation to Giving of Notice by Proponent under s 63M' (sic) was filed in this Court on 1 July 1999 by the solicitors for the Eringa claimants. Those Particulars went further than the ground of objection in relation to the giving of notice contained in the Notice of Objection filed by the Eringa claimants. The particulars were expressed in the following terms:
6. Pursuant to orders of Her Honour Judge Trenorden made on 23 June 1999 the claimants now provide the following particulars of their objection in relation to the giving of notice:
(i) the proponents have failed to identify with sufficient detail the location of the proposed mining operations as required by s 63M(2) of the Mining Act, and in particular:
(a) have failed to provide an adequate map;
(b) have failed to indicate precisely where within EL 2065 mining operations are to be carried out; and
(c) have failed to provide the co-ordinates of proposed drilling sites.
(ii) the proponents have failed to describe in sufficient detail the nature of the proposed mining operations that are to be carried out on the land as required by s 63M(2)(b) of the Mining Act, and in particular:
• how many targets will be drilled;
• the nature of the drilling to be undertaken;
• the length of the proposed drilling programme;
• the number of persons and the number and nature of vehicles to be used; and
• the proposed access routes, camping sites and storage depots.
(iii) the proponents have failed to comply with s 30(1)(a)(iv) of the Native Title (South Australia) Act 1994, in that they have failed to serve the appropriate Commonwealth Minister. The Native Title (South Australia) Regulations 1995 prescribe, at Regulation 5, that "[F]or the purposes of the Act, the Minister for Aboriginal and Torres Strait Islander Affairs for the Commonwealth is designated at the Commonwealth Minister."
7. As a result of the failure by Laura Holdings Pty Ltd to give notice in accordance with the method set out in s 63M of the Mining Act and Part 5 of the Native Title (South Australia) Act the claimants assert:
• that the notice is invalid; and
• that, as a consequence, the application for summary determination must be dismissed.
4. Although the Particulars appear to add to the objection by the Eringa claimants the additional grounds of failure to comply with the provisions of paragraphs (a) and (b) of subs 63M(2) of the Mining Act, I permitted the argument to proceed on these preliminary issues. The applicant’s representative had received adequate notice of that which the objectors proposed to argue.
Part 9B of the Mining Act came into operation on 17 June 1996. It deals with mining operations on native title land. 'Native title land' includes land in respect of which native title exists or might exist: s 6(1) of the Mining Act; s 3(1) Native Title (South Australia) Act 1994. At the outset, it must be acknowledged that the provisions of the South Australian legislation with respect to future mining operations on native title land are different in degree from the provisions under the Commonwealth legislation. Accordingly, decisions made under the provisions of the Native Title Act 1993 (Cth) may not be relevant to questions arising under Part 9B of the Mining Act (SA).
Under the South Australian Mining Act, a person may obtain an exploration authority, including an exploration licence to carry out mining operations on native title land, but that authority will confer no right to carry out mining operations on native title land unless either the mining operations do not affect native title or the land is not subject to native title pursuant to a declaration made to that effect under the law of the State or the Commonwealth. How does a person who holds an exploration licence acquire a right to carry out mining operations on the land the subject of the licence, where there is no declaration that the land is not subject to native title, and he or she cannot say that the mining operations 'do not affect native title'? s 63F(2) provides that the right may be acquired from an agreement or determination authorising operations, made under Part 9B of the Mining Act. The holder of the exploration authority must proceed 'with reasonable diligence' to obtain an agreement or determination authorising the conduct of mining operations, as any other applicant is prevented from obtaining a grant of registration of an exploration authority for the same purposes within the same area: s 63G.
An agreement may be negotiated: s 63L. Negotiations are initiated by the giving of notice under s 63M. If negotiations are successful, and result in an agreement between the exploration licence holder and the native title parties authorising mining operations on the native title land, upon the agreement being registered, it becomes enforceable and the holder of the exploration licence may proceed to carry out mining operations in accordance with the agreement, on the land. 'Mining operations' are defined in s 6(1) of the Mining Act to include 'all operations carried on in the course of prospecting, exploring or mining for minerals...'.
The Act envisages that a person seeking to carry out mining operations on native title land will either apply to a Court for a declaration that the land is not subject to native title (s 63J) or initiate negotiations with native title parties (s 63L). Negotiations are initiated by the giving of a notice under s 63M. There is no other route by which a person seeking to carry out mining operations on native title land, may commence the process of obtaining an agreement with the native title parties, or a determination from this Court.
If, having given the notice pursuant to s 63M, the proposed mining operator finds that there are no native title parties in relation to the land the subject of the notice, after the expiration of a two month period, he or she may seek a summary determination from this Court: s 63N. Where the proposed mining operator and the native title parties have negotiated 'in good faith', but have failed to reach an agreement, any of the parties may request this Court to mediate to assist the parties in obtaining an agreement: s 63P. Where, at the expiration of four months, the parties have not reached an agreement in relation to the proposed exploration operations on native title land, any party may apply to this Court for a determination: s 63S.
Thus, where there are native title parties in respect of the land the subject of a notice given under s 63M applies the proposed mining operator must proceed to obtain an agreement through negotiation with the native title parties. No application may be made to the Court for a determination until negotiation has begun, but has not resulted in an agreement with the four month period, for exploratory mining operations: s 63P and s 63S. There is one exception to this general principle. Where the proposed mining operator is of the view that the mining operations will be of a character described in subs 630(1), the operator, having given notice pursuant to s 63M including a statement that s 630 applies to the proposed mining operations and that it is intended to rely on the provisions of that section, may apply ex parte to this Court for a summary determination authorising the mining operations as proposed in the notice. The Court has power to make a summary determination upon an application and the obligation to negotiate will not arise where a summary determination may be made: s 630 and s 63P. Clearly, s 630, or the expedited procedure process, removes both the obligation of the proposed mining operator to negotiate with native title parties, and the right of the latter to engage in negotiation. The response of the legislation to the removal of the right of native title parties, is to provide for a native title party to challenge the assertion by the proposed mining operator that the proposed mining operations will have the character described in subs 630(1). This may be done by a native title party lodging a written objection. Where an objection has been lodged, this Court must give the objectors an opportunity to be heard, and determine that the proposed operations are in fact operations to which s 630 applies, before it makes a summary determination under that s: subs 630(4).
Hence, the expedited procedure process available under s 630 is clearly an exception to the general rule that a proposed mining operator should seek to negotiate an agreement with native title parties in respect of the land upon which it is proposed to carry out the mining operations.
The objectors have asserted that the notice is bad for failure to comply sufficiently with subs 63M(2). It is submitted that the obligation on the mining operator must be strictly complied with where it is intended to rely on the expedited procedure under s 630. The legislation does not support any contention that the s 63M notice must be more specific where there is a stated intention to rely upon the expedited procedure. Any notice issued pursuant to s 63M must both identify the land upon which the proposed mining operations are to be carried out and describe the general nature of the proposed operations.
In order to determine the amount of information which should be included in the notice by the proposed mining operator, one must consider the purpose and consequence of the notice. It must be borne in mind that the Act establishes a time frame under each of the following provisions: s 63N; s 630(4); s 63(1) and s 63S(4). Given the strict time frames for a person to establish himself or herself as a native title party, a native title party to lodge a written objection to the use of the expedited procedure, and for negotiation between native title parties and the proposed mining operator before a person can apply to this Court for a determination, it is clear that the notice must both sufficiently identify the land and describe adequately the general nature of the proposed mining operations, to enable a person to understand what is proposed and where, in order to allow them to move quickly within the very limited time frames provided.
It was suggested that the notice may provide general information sufficient to comply with s 63M(2), with any person being at liberty to make inquiries of the proposed mining operator who gave the notice, to obtain further detail of what is proposed and where. Given the strict time limits, I cannot accept that submission. Mr Buckley, on behalf of the applicant, further submitted that for a proposed mining operator to adequately identify what is proposed and where, might take several pages and that the form (Form 27: See Regulation 105 and Schedule 1 of the Mining Regulations 1998) did not envisage such specificity, by the amount of space it provided for these items. The information to be provided must be provided in accordance with what is required by the Mining Act, and not what is inferred by the amount of space devoted for the purpose, in the form specified in the Regulations. If a proposed mining operator finds it necessary to attach pages to the form to adequately comply with the provisions of s 63M, that is the course that must be taken.
In this case the notice identified the land as ‘'Out of Hundreds' Oodnadatta’ and by reference to an attached map showing the limits of each exploration licence, and a description of the boundaries of the area of each licence. The areas of the two licences concerned are expressed to be approximately 182 square kilometres and 274 square kilometres, respectively. There was no indication as to whether the proposed mining operations are to be carried out on the whole of the areas covered by each of the exploration licences, or on portions only of those areas and if so which portions. Given the area covered by the licences I find that the notice given by Laura Holdings Pty Ltd dated 10 March 1999 inadequately identified the land on which the proposed mining operations are to be carried out, and I hold that the notice is in breach of s 63M of the Act in this respect.
With respect to the general nature of the proposed mining operations, the notice indicated as follows: 'Drilling of targets identified as a result of airborne surveys'.
Thus, the general nature of the proposed mining operations is given as 'drilling'. The Mining Act defines 'mining operations' in the context of exploration, to mean all operations carried on in exploring for minerals. Nothing is identified excepting 'drilling'. The type of equipment to be used is not indicated, nor is the means by which the equipment is to be conveyed across the land on which the mining operations are to be carried out. The notice should have identified and described in general terms, all of the operations proposed on the land for which an agreement or determination is sought. I find the notice insufficiently describes the general nature of the proposed mining operations which are to be carried out on the land and I hold that the notice is in breach of s 63M of the Mining Act.
I note that greater detail in relation to the land and the proposed mining operations is provided in the application for a determination made to this Court on 8 June 1999. However, I cannot take that into account. subs 630(3) authorises the Court to make a summary determination authorising mining operations 'in accordance with the proposals contained in the notice'. It is the notice which must properly describe both the land and the general nature of the proposed mining operations.
In argument it was also suggested that having to go into detail about the general nature of the proposed mining operations might make any necessary advertisement in accordance with subs 63M(4)(b) and Part 5 of the Native Title (South Australia) Act, one of significant length. This would not be the case. Any public notice given in a newspaper to comply with the requirements of s 30(1)(b) of the Native Title (South Australia) Act need only given notice of the nature and effect of the s 63M, as opposed to setting out the entire contents of the notice.
In the circumstances, as the notice does not comply with s 63M in two significant respects, I hold that the notice is not a valid notice given pursuant to the provisions of the Mining Act. I have come to this conclusion not merely because subs 63M(2) is in mandatory terms, but because of the importance of fulfilling the requirements of this subs. It is on the basis of this information that a person or a community or group has to determine the effect upon them and decide whether to take any action. Given the significance of this information for recipients of the notice, failure to comply with these provisions must invalidate the notice.
Subsection 63M(4) requires notice to be given to the relevant native title parties as specified therein. In accordance with that provision, a copy of the notice should have been given, inter alia, to the Commonwealth Minister. Regulation 5 of the Native Title (South Australia) Regulations 1995 identifies, for the purposes of the Act, the Minister for Aboriginal and Torres Strait Islander Affairs as being the Commonwealth Minister. Prior to 9 May 1996, that Regulation specified the Attorney General of the Commonwealth as the Commonwealth Minister. In this case, the notice was served on the Commonwealth Attorney General, I am told, pursuant to information provided by the South Australian Department of Primary Industries, Natural Resources and Regional Development. It is unfortunate that the Department appears to have misled the applicant, but it is incumbent on an applicant to ensure that the notice is served in accordance with the provisions of the Act. The notice was incorrectly served on the Commonwealth Attorney General. Given my decision in respect of the sufficiency of the notice, I do not have to decide whether the fact of the notice being incorrectly served on one of a number of persons upon whom it was required to be served, has any effect.
The decision of the Court is that the notice is invalid. The objection of the Eringa claimants on this point is upheld. Accordingly, the Court has no jurisdiction to entertain the application for summary determination and the application is struck out.
Applicant represented by: Wayne Buckley
Solicitors for the Eringa Claimants: Johnston Withers
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/44.html