Aboriginal Law Bulletin --- "Ordering the Override of Native Title: Re Koara People" [1996] AboriginalLawB 56; (1996) 3(83) Aboriginal Law Bulletin 16

• Ordering The Override Of Native Title: Re Koara People

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Ordering the Override of Native Title:
Re Koara People

Re Koara People

National Native Title Tribunal, Seaman P

Unreported

21 June 1996

Casenote by Richard Bartlett

If the duty to negotiate with native title holders applies under the Native Title Act 1993 (Cth) ('the NTA'), but if negotiations are unsuccessful, the National Native. Title Tribunal ('the NNTT') is empowered to order that a grant of a mining tenement may issue. In making a determination as the whether a grant may issue, the NNTT must consider the criteria set out in s39 of the NTA.

The first determination handed down by the NNTT under s39 was in Re Koara People. The State of Western Australia sought a determination that mining leases might be granted. Mining leases under the Mining Act 1978 (WA) confer the right to mine, but do not require mining. Exploration work will suffice to maintain such leases in good standing. The grantee parties provided little information about proposed exploration, and almost none about proposed production mining operations. The length of term of a lease is 21 years, renewable for a further 21 years. The NNTT recognised, in the absence of information as to the 'impact of actual mining operations', there were 'obvious difficulties' in: negotiations; the NNTT applying the criteria in s39; assessment of future compensation; and 'providing appropriate protection for native title'. The NNTT commented: '[T]he result is that the Tribunal is placed in the position of weighing the criteria set out in s39 at the least logical stage' (pp 17-18).

The NNTT determined, however, that each of the mining leases might issue. It characterised the protection conferred by the NTA as merely 'a right to be asked about actions affecting their land' (pp9, 18, 39, 41). Conditions were imposed providing:

• Subject to mining operations, access to the land by native title claimants;
• No exploration/mining on significant sites;
• Good faith negotiations towards an agreement prior to production mining operations.

Compensation was to be determined upon a separate application at a later stage, presumably when the impact of the mining operations was evident (pp29, 36, 39).

The decision manifests the NNTT's inclination to ensure that non-Indigenous development and settlement proceeds. The grant of mining leases was approved despite the recognised absence of information as to their impact on native title rights. The condition requiring good faith negotiations has no substance when the bargaining position of a native title party has been denied by a determination that leases may issue, irrespective of the outcome. Such a determination is tantamount to a ruling that native title may be overridden upon payment of compensation. This ruling also postpones entitlement of compensation until a determination of native title has been made. Section 23 confers entitlement to native title holders. The right to negotiate procedures contemplate that compensation might be held in trust for claimants: see s52.

It was submitted to the NNTT that the 'difficulties' presented by the lack of information could be provided for by allowing issuance of a mining lease conditional upon the NNTT imposing further conditions at the mining stage. The submission was rejected on the basis that the NTA contemplates 'only one determination which is complete in itself ... There is no power to resume the inquiry or impose a further set of conditions after the determination has been made' (p26). A submission that a condition might be imposed providing for an arbitrator to set the conditions upon which actual mining might proceed was considered to be 'outside the scope and purpose of the Act' (p27). The rejection of both submission entails a narrow reading of the language of the NTA, with little understanding of the purpose of the provisions. It results in a determination that undermines the entire right to negotiate process. The NTA could readily have been construed so as to entitle the NNTT, or an arbitrator, to set additional conditions when the impact of mining operations was known.

The 'difficulties' presented to the NNTT in this case arose from:

• The refusal of the State to negotiate in good faith;
• The nature of the grant contemplated, which empowers the substantial overriding of native title for a period of 42 years;
• The lack of provision of any information by the miners as to proposed, mining activities.

Yet the NNTT determined that the grants might issue. This determination encourages a failure to negotiate or to provide information. The NNTT has alternatives which could have provided for the problem of lack of information, but it rejected these alternatives on a narrow non-purposive construction. Given the 'difficulties' the NNTT was presented with, it should surely then have determined that the act must not be done, so as to ensure appropriate protection for the native title interests. Instead, it favoured the 'public interest in the grant of mining leases and the ongoing development of the mining industry in the State'.

The NNTT has authorised the carte blanche overriding of native title without any information as to the nature of proposed mining activities. A narrow reading of the NTA has been adopted which defeats the main purpose of the 'right to negotiate. The NNTT never even seemed to consider that, rather than native title being comprehensively overridden, the miners should change their methods of operating, or the State should change its methods of disposition. The proposed exploration activity of the miners did not require such overriding of native title. Native title should not be required to give way to a 'strange' system of disposition (p17), when a grant of an exploration or retention agreement would have sufficed. (See also 'Making Native Title Work: The Goldfields (WA) Response'; submission to the Federal Government on proposed changes to the NTA by the Goldfields Land Council, June 1996, pp4-6.)