Hunt, Michael --- "Opposition to Mining Projects by Indigenous Peoples and Special Interest Groups" [1997] MurdochUeJlLaw 13; (1997) 4(2) Murdoch University Electronic Journal of Law

The land ownership claims of indigenous people and the impact of those claims upon all other forms of land use, including mineral development, is one of the most important and widely publicised political, social and economic issues facing Australia at present. Very strongly held views are being expressed very forcibly.[2]

Nearly four years on, nothing has changed.

This paper commences with a description of the Mabo litigation (commonly referred as Mabo (No. 1) and Mabo (No. 2)) and summarises the main issues[3] concerning native title.[4]

Then follows an outline of the legislative response to Mabo (No. 2), principally the Native Title Act 1993 (CTH).[5]

The paper then reviews recent court decisions, especially the Wik [6] case decided 23 December 1996 which has been the source of recent controversy in Australia.

Then, as required by the topic, the paper moves to a review of the Ok Tedi litigation. It concludes with a discussion of the effect of international conventions, principally, the United Nations "Convention on the Elimination of All Forms of Racial Discrimination" and draft "Declaration on the Rights of Indigenous Peoples".

MABO (NO. 1)

In 1982 some of the Meriam people who inhabit the Murray Islands in the Torres Strait (between mainland Australia and the Independent State of Papua New Guinea) issued a writ in the High Court of Australia claiming they had rights of ownership of the island of Mer. In response the Queensland State Government, alarmed at the implications of the issues raised, procured the passage through State Parliament of the Queensland Coast Islands Declaratory Act 1985 (QLD) which purported to extinguish any native title such as claimed by the plaintiffs. There was no attempt to disguise the fact that this was a deliberate attempt by the Queensland Parliament to abolish any indigenous ownership which might have existed.

The plaintiffs successfully challenged this Act before the High Court in Mabo (No. 1).[7]

The High Court ruled that the legislative attempt to extinguish the plaintiffs' native title was nullified by operation of section 10 of the Racial Discrimination Act 1975 (CTH). This provision was enacted to fulfil Australia's obligations under the UN "Convention on the Elimination of All Forms of Racial Discrimination".

MABO (NO. 2)

The Meriam people's claim for indigenous land ownership was eventually argued before the High Court in 1991. In its judgment delivered on 3 June 1992, the court found in favour of the Meriam people. It held that Australian common law recognises native title, a title which reflects the entitlement of the indigenous inhabitants to their traditional lands, in accordance with their law or custom.

The court declared that the Meriam people are entitled to possession, occupation, use and enjoyment of the lands of the Murray Islands. In making this declaration, the court noted that the title of the Meriam people is subject to the power of the Queensland Government to extinguish that title by valid exercise of its powers. However, it noted that any exercise of those powers must not be inconsistent with the Racial Discrimination Act 1975 (CTH).

Thus, sovereign power is not an issue nor is there an issue of ownership of land in the common law sense. However, in another sense, native title does amount to ownership of the land because the Meriam people were declared to be entitled "as against the whole world" to possession, occupation, use and enjoyment of the land subject only to the power of Parliament to extinguish that title.

This was a new concept for Australia, previous legal theory being based upon the land being terra nullius (the land belonged to no-one). What the High Court did was recognise principles which had been established in common law jurisdictions elsewhere in the world.[8]

In Mabo (No. 2),[9] the High Court of Australia has at last brought Australia into line with the jurisprudential thinking of the rest of the common law world.

In its decision the High Court laid down a number of principles which can be summarised as follows:

• The source of native title is common law.
• No recognition of native title by legislation is required.
• Its source lies in a connection with the land and this connection must accord with traditional laws and customs.

The content of native title and the persons who are entitled to native title must be ascertained according to traditional laws and customs. Occupation or connection with the land by the Aboriginal inhabitants must be demonstrated. It must also be shown that the occupancy or connection with the land has continued since the time of assertion of Crown sovereignty.

Native title can be extinguished by surrender, abandonment, death or an act of the Crown demonstrating a clear intention to extinguish native title. The Crown can extinguish native title either by appropriating land to itself or by granting an interest to a third party which is inconsistent with a continuing right to enjoy native title. These principles of extinguishment require that where the Crown has validly alienated land by granting an interest that is inconsistent with a continuing right to enjoy native title, the native title is extinguished to the extent of the inconsistency.

NATIVE TITLE ACT 1993 (CTH)

This is the Federal Government's legislative response to Mabo (No. 2). It has been discussed in detail elsewhere.[10]

The Native Title Act ("NTA") creates a procedure under which native title can be declared to exist, basically by order of the Federal Court. This is the NTA's main purpose but this most important aspect of the legislation will not be discussed in this paper because it is not relevant to the topic.

Relevantly for this paper the Act sets out a regime for validating titles (including mineral titles) which were in existence as at the date of commencement of the legislation (1 January 1994)[11] and provides a procedure for the grant of new titles in accordance with principles which recognise native title. This procedure is the aspect which is causing serious problems for the mining industry in Australia.

Pre-1994 Titles

All land titles under the land codes, all exploration and mining titles under the mining legislation and all exploration and production titles under the onshore and offshore petroleum laws which were granted before 1 January 1994 can now be regarded as valid from a native title perspective.[12]

They cannot be challenged even if native title is subsequently proved to exist over the land or waters. If native title is ultimately found to have existed over the subject land or waters, any compensation payable for the effect of the grant of titles upon native title must be met by the State.

In summary, all titles granted before 1 January 1994 are valid.

1994 Titles

The situation as to mineral, petroleum and land titles granted in Australia since 1 January 1994 is a mess. The validity of many such titles is open to question. The situation varies from State to State.

The problem in Western Australia arose because its State Government did not accept the validity of the NTA and chose to enact its own indigenous title regime.[13]

On 16 March 1995, the High Court declared that legislation invalid and upheld the constitutional validity of the NTA.[14]

Since 16 March 1995, the Western Australian Government has observed the NTA's procedures for the grant of titles (discussed later in this paper).

The consequence is that titles issued in Western Australia between 1 January 1994 and 16 March 1995 may be invalid. It is important to emphasise the word "may". There is no court decision yet to this effect. The issue remains open to conjecture.

It is possible that such titles are only invalid if there was a native title claim over the land at the time of their grant. In the March 1996 Waanyi case,[15] the majority of the High Court indicated (in obiter dicta) that titles granted over land the subject of a native title claim are invalid if the NTA procedures were not followed. It is unclear whether this view will be upheld when the issue is fully argued and the court is required to make a decision on it, and whether this rationale would extend to titles granted when no native title claim was in existence.

In my opinion, if anything is determined to be invalid, it will be the grant of the title. The application for the title would remain as a valid application and thus, if there was a finding of invalidity of the title, the consequence would be that the application would be returned to the Minister to be determined according to law; that is, in accordance with the NTA procedures. The WA Government has assured industry that the priority of the application would be preserved.[16]

Notwithstanding this advice from the Government of Western Australia, many companies have elected to reapply for mining titles granted between 1 January 1994 and 16 March 1995 so as to ensure the mining titles are valid. This approach has its own problems: it is a matter of judgment in each case whether to surrender a title which on its face is valid and has not been challenged for an application which must run the course of the NTA's "future act" process (discussed below) which invariably causes delay and generally leads to demands from Aboriginal groups.

From a strategic point of view, certain Aboriginal advisers determined to improve their bargaining position have threatened to take out an injunction to restrain further operations on any land pending a determination of whether native title exists, alleging that the subject titles are invalid.

There are two principles relating to the granting of interim injunctions to restrain current operations. The first is whether there is a serious issue to be tried. This would require the Aboriginals to put forward some satisfactory evidence as to the existence of native title.

Secondly, the "balance of convenience" must favour the grant of an injunction. In considering this issue, the court would weigh up the prejudice to the native title claimants if a project proceeds as against the prejudice to the company if the project is suspended. The difference can best be illustrated by contrasting a "grass roots" exploration program with an established mining operation. It is conceivable that the implementation of a grass roots exploration program on ground which may have native title and which has not yet been disturbed would be injuncted. The court could say that the prejudice to the Aboriginals from having the ground disturbed is greater than the prejudice to the company if the ground remains undisturbed for the present. In contrast, it is inconceivable to me that an interim injunction would issue to restrain mining operations once a mining project has been constructed on the basis that native title exists there. The ground would already be so disturbed that any additional disturbance could not be said to prejudice the Aboriginals but there would be great prejudice to the company in stopping mining.

In States other than Western Australia, the situation is potentially even worse. The State Governments in Queensland, New South Wales and South Australia and the Northern Territory Government chose not to follow the NTA's procedures in granting titles over land which is (or was) the subject of a pastoral lease. In doing this, they relied upon statements by the then Federal Government in Parliament when debating the then Native Title Bill. As recently confirmed by the Commonwealth Attorney-General's Department "the NTA was enacted on the assumption, based on comments made in [Mabo (No. 2)] that the valid grant of a pastoral lease extinguished native title".[17]

This reliance was misplaced because on 23 December 1996, the High Court held in theWik case (discussed later in this paper) that native title was not necessarily extinguished by the grant of a pastoral lease.

This decision exposes to challenge the validity of many mining titles issued in Queensland, South Australia, New South Wales and Northern Territory in 1994, 1995 and 1996. I have not been able to determine the number of titles involved in those States but, given that pastoral leases cover (or formerly covered) approximately half of the area of Australia and (by way of example) there are 3500 mining titles in Western Australia alone which were issued during the period of potential invalidity, the issue is serious.

In summary, it is not possible to conclusively determine the validity of mineral, petroleum and land titles granted in Western Australia during 1994 and up to March 1995. This may expose projects to a risk of being injuncted. Many companies have decided to apply for new titles over the ground the subject of any such titles so as to remove any doubt. This approach has its own problems. In relation to other States and the Northern Territory, many titles (those issued over land which is (or was) the subject of a pastoral lease) during the period 1 January 1994 to 23 December 1996 are exposed to challenge in a manner similar to WA titles.

Titles Granted after March 1995 (WA) and December 1996 (Other States) and Titles to be Granted in the Future

Since Western Australia decided in March 1995 to fall into line with the Federal NTA regime, it has adopted the procedures of the NTA in relation to the grant of land, mineral and petroleum titles over vacant Crown land and pastoral leasehold. Other States and the Northern Territory will have to follow a similar procedure from now on.

These NTA procedures are commonly referred to as the "right to negotiate" but more accurately described as the "notification and right to negotiate" procedures.

Notification and Right to Negotiate Procedures. The first step is the notification procedure. This involves the notification of the Minister's intention to grant a mineral, petroleum or land title once the application has been through the usual State legislation (eg. Mining Act, Petroleum Act or Land Act) procedures and is ready to be granted. Notice is given to bodies such as the National Native Title Tribunal ("Tribunal", a body established under the NTA), the relevant Aboriginal organisation for the area and any existing native title claimant. In addition, the notification is advertised in the press.

What happens then depends if there is a native title claim already in existence or if a claim is lodged within two months. If not, the grant can be made. Otherwise, the procedures vary according to the type of title being sought and they must be considered separately as follows:

Exploration Titles. An "expedited procedure" can be used in the case of a title, the grant of which does not impact upon an Aboriginal site, does not involve substantial ground disturbance and does not impact upon Aboriginal community life. In such cases, the right to negotiate procedures (discussed below) do not apply. The State takes the view that the expedited procedure applies in respect of titles which authorise exploration such as an exploration licence or prospecting licence under the Mining Act or an exploration permit under the Petroleum Act.

A native title claimant can object (within two months after the advertisement) to the use of the expedited procedure. If there is no such objection (or if the objection is dismissed by the Tribunal), the grant can be made. If the objection is upheld, the right to negotiate procedure must be followed.

The Federal Court has ruled[18] that the criterion of interference with community life is not confined to direct physical interference. It can extend to spiritual interference. Following this ruling, Aboriginals now commonly claim that entry on the land by an explorationist offends their community's spiritual life, even if the community is located a long way from the land. It might even be argued that aerial geophysical survey can interfere with spiritual beliefs. The trend is now for Aboriginal objections to the expedited procedure to be upheld.[19]

Mining Leases and Petroleum Production Licences. Applications for these titles must follow the "right to negotiate" procedures. The Minister's intention to grant the title must be notified. If there is no existing native title claim over the relevant land, and no claim is lodged within two months, the grant can be made.

However, if a native title claim already exists or is lodged within two months, the State must conduct negotiations with the native title claimant(s) over the ensuing six months.[20]

Then, either an agreement must be negotiated between the Minister, the native title claimant and the mining or petroleum company or else the intention to grant must be referred to the Tribunal. The Tribunal has the power to decide whether or not the grant can be made. The decision of the Tribunal can be vetoed (either way) by the Federal Minister for Aboriginal Affairs.

Compulsory Acquisitions. Where the State intends to grant a title (freehold or leasehold) over vacant Crown land or pastoral leasehold, it must first acquire any native title rights over that land. The intention to acquire those rights and grant that title is notified, including advertising in the press. The procedure which follows is the same as for a mining lease or a petroleum production licence.

Agreements

Aboriginals are now realising the potency of the "future act" "right to negotiate" weapon they have been given. Some Aboriginals are indulging in blatant opportunism, seeking to be "bought off".

It is common for an Aboriginal group (and often more than one group) to lodge a native title claim after a proposal to grant a mining title has been advertised. The applicant for the mining title must then make a choice. It can follow the statutory procedure, perhaps contesting any objection to the expedited procedure or perhaps seeking to go to the Tribunal for determination of whether the grant can be made. This involves lengthy delays (in the order of a year or more).

Alternatively the applicant can negotiate an agreement with the Aboriginal claimants. Details of agreements are not published but it is known that many companies have already signed agreements.

The nature of the agreements is believed to vary from arrangements under which various contracts connected with the applicant company's operations are awarded to Aboriginal groups, the mining contract is given to a joint venture between an established mining contractor and an Aboriginal group, payments are made for plant and equipment to establish a business, payments are made for acquisition of other land, cash payments are made, a joint venture is established or a royalty regime is agreed.

In summary, a company's present and future applications for exploration, production and land titles must follow the Native Title Act "notification and right to negotiate" procedures. Except in the case of exploration titles where the "expedited procedure" may permit the grant of such titles without following the right to negotiate procedures, this will require either negotiating an agreement with the native title claimants or making a future act determination application to the Tribunal.

SUMMARY AND IMPLICATIONS OF THE WIK DECISION

The Wik Peoples V State Of Queensland & Ors.[21]

This decision, delivered on 23 December 1996, is the subject of considerable controversy in Australia and has rarely been out of the news since. It has caused vitriolic abuse of the High Court, principally led by the Premier of Queensland.[22]

The Wik Decision in the Context of Mabo (No. 2)

In Mabo (No. 2), the High Court identified several ways of extinguishing native title, including by way of a Crown grant which would vest in the grantee a right that was inconsistent with native title. Thus, said the Chief Justice, the grant of rights of exclusive possession (for example freehold or leasehold titles) would generally extinguish native title. The importance of the Wik decision lies in its determination of whether a pastoral lease extinguishes native title.

The Importance of Pastoral Leases

Pastoral leases cover over 40% of Australia; including approximately 55% of Queensland, 51% of the Northern Territory, 44% of South Australia, 38% of New South Wales and 36% of Western Australia (of which a further 35% comprises vacant Crown Land). Given the mass of land open to native title claims, pastoralists and miners alike were anxious as to the outcome of the Wik case.

The relevance of resolving the pastoral lease issue in the context of resource development lies in the "right to negotiate" procedures of the NTA, mentioned above.

Relevantly, where native title rights may exist in respect of land over which a mineral, petroleum or land title may be granted, the NTA requires either an agreement with native title claimants or an order of the Tribunal.

Given the vast areas of land which were or now are covered by pastoral leases, if the court ruled that the grant of a pastoral lease operated at law to extinguish native title, this would greatly reduce the number of native title claims and claimants. Before the Wik decision most people thought that native title had been extinguished by pastoral leases. This is apparently the basis on which the negotiations were conducted which led to the enactment of the NTA.[23]

The Wik Decision

Facts. The case concerned two pastoral leases in Queensland granted to non-Aboriginal parties under the Land Act 1910 (Qld) and the Land Act 1962 (Qld). Mitchelton pastoral lease was granted first in 1915 (forfeited for non-payment of rent) and subsequently granted again in 1919. It was surrendered in 1922 and has since been reserved for use by Aborigines or held on their behalf. The Holroyd pastoral lease was first granted in 1945 under the Land Act 1910 (Qld). It was surrendered in 1973. In 1974 it was again granted under the Land Act 1962 (Qld) for 30 years.

The High Court Decision in Brief. The High Court held by a majority of 4:3 that the pastoral leases did not confer exclusive possession and so did not necessarily extinguish native title. The majority decided that pastoral leases were creatures of statute, not leases at common law, and they did not give the lessee a right to exclusive possession but were limited to conferring a right to enter the land for the limited purpose for which they had been granted (grazing).

The High Court recognised that where native title rights are inconsistent with the particular rights conferred by the pastoral lease then, to that extent, the native title rights would be extinguished.

The effect of the decision is that the rights and obligations of each grantee (of a pastoral lease) depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.

So, as far as the extinguishment of native title rights is concerned, the answer given by the majority is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the legislation in question. Whether there was extinguishment can only be determined by reference to such rights and interests as may be asserted and established in the particular circumstances.

If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the State grants, those rights and interests must yield, to that extent, to the rights of the grantees. Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising as to the suspension of any native title rights during the currency of the grants.

The majority decision focussed on the notion that whether an instrument of grant creates a lease or a licence is a question of substance and not one of language. Hence, the word "lease" and expressions such as "demise for a term of years" are not of themselves determinative of the creation of a lease. Rather, the proper question is whether exclusive possession was conferred.

Attention was given to the fact that pastoral leases were creatures of statute. It was stated by Gaudron J that "whatever may be the position in other areas of law, there is no very secure basis for thinking that pastoral leases owe anything to common law concepts". Thus, words such as "lease" in a statute do not necessarily have the same meaning at common law.

Emphasis was placed on historical factors (in particular, those relating to Queensland). Reference was made to the huge size of the pastoral leases in question as a factor showing that native title was not extinguished. It was noted the land had "apparently unpromising conditions for depasturing cattle" and that nothing had apparently happened to the land the subject of the first lease "except signing documents in Brisbane".

The minority (which included the Chief Justice) concluded that the pastoral leases in question did in fact extinguish native title. They said that on its true construction a pastoral lease under the Land Acts conferred on the lessee a right to exclusive possession:

In the absence of any contrary indication, the use in a statute of a term that has acquired a technical legal meaning was taken prima facie to bear that meaning.

By adopting the terminology of leasehold interests the Parliament must be taken to have intended that the interests of a lesseeare those of a lessee at common law, modified by the relevant provisions of the Act.

The minority did not see any significance in the suggestion that the Crown's right to enter at any time for any purpose and that the phrase "for pastoral purposes only" connotes something other than exclusive possession:

The reservation, far from implying that the lease did not confer a right to exclusive possession, implies that, without the reservation, the lessee would have been entitled to refuse entry to any person.

Immediate Implications Of Wik

Although the Wik decision has immediate implications for pastoralists, they are not relevant to this paper. The relevance for the mining and petroleum industries is that the area of land over which native title is claimable has been expanded enormously (as mentioned before 40% of Australia is the subject of pastoral leases). This means that the "right to negotiate" procedures of the NTA will need to be followed for all proposed grants of mineral, petroleum and land titles on land which until now has been thought to be exempt because it is or has previously been the subject of a pastoral lease.

Hitherto more than half of Queensland and the Northern Territory and more than a third of Western Australia and New South Wales was thought to be exempt from claim but has now become subject to NTA procedures. As mentioned earlier, Western Australia has treated pastoral leasehold as subject to NTA procedures since 16 March 1995. Experience there has demonstrated a dramatic slowdown in the process of grant of titles. Delays to projects are common and the resource industry is in a serious state of uncertainty over title.

The second major implication is that titles granted after 1 January 1994 may be invalid because until 16 March 1995 (WA) and 23 December 1996 (other States) the NTA procedures were not followed. Legislation is the only way to rectify this but achieving acceptance of such legislation will not be easy.

Although the Wik decision concerned Queensland pastoral leases, it is safe to assume that the decision extends to all pastoral leases in Australia.

Broader Implications Of Wik

Although from a legal viewpoint the Wik decision is not really revolutionary, nor does it necessarily alter the effects of Mabo (No. 2) or the substantive rights of Aboriginal people under the common law as declared by Mabo (No. 2), in the political context it represents all the elements of an enormously influential High Court decision. The controversy it has caused is having serious ramifications not just for principles of native title or property law but also for the very future of the High Court itself.[24]

Sadly, the decision has initiated a movement away from an acceptance in the general community of indigenous rights. Mabo (No. 2) presented a realistic and genuine opportunity for reconciliation. The immediate response to Wik appears to have unsettled the Australian community to a considerable degree given the reality that native title claims may now be made over a further 40% of the Australian continent. A recent Bulletin magazine poll showed that 56% of those polled disapproved of the Wik decision and 49% disapproved of the Mabo (No. 2) decision compared with only 32% four years ago.[25]

Unfortunately, the Wik decision has in many respects highlighted an innate cultural misunderstanding between the Aboriginal people and pastoral and mining groups. In an interview on the ABC's 4 Corners program, one pastoralist concluded that "it will go to blood". From a resource developer's point of view, if emotions remain anywhere near such levels, negotiations will become very difficult.

The Wik decision has also highlighted the influence that the international community will play in the aftermath of the High Court's decision. Calls from groups such as the National Farmer's Federation to extinguish native title in pastoral lease areas cannot be seen as realistic options given the UN Conventions (discussed later) which underpin the Racial Discrimination Act.

The only realistic path to be taken by Aborigines, pastoralists and mining companies is negotiation over substantive issues. This will be a long term process. In this regard, some assistance may be afforded by learning from the Canadian experience despite the different legal frameworks principally, of course, the Canadian constitutional provisions entrenching a recognition of indigenous land rights.

HERITAGE/ABORIGINAL SITE ISSUES

Aboriginal groups are starting to flex their muscles relying upon the provisions of the Aboriginal Heritage Act (WA) and threatening the intervention of the Commonwealth Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act (CTH). It is an offence under the Aboriginal Heritage Act to knowingly enter on or damage a site. To remove the statutory defence that the miner had no means of knowing the land was a site, Aboriginal legal advisers have taken to writing letters to mining title holders alleging that the whole of the land the subject of their mining titles contains sites.

They then ask for a site survey agreement to be signed. This will generally provide for a work program site clearance to be undertaken. This involves hiring the elders, their anthropologists and their advisers to review a proposed program of work prepared by the company. They then approve it or seek modification. Recent developments have included demands for payments both in cash and based on a percentage of exploration expenditure. This site clearance procedure is one that has developed in practice. It has no statutory or regulatory foundation.

Cynics view this exercise as one of cash generation for the Aboriginal interests. Examples are known where projects have been threatened with action under the Aboriginal Heritage Act (WA) or under the Aboriginal and Torres Strait Islander Heritage Protection Act (CTH) unless certain demands are agreed. An example from 1995 involves a claim upon a proposed medium scale mining operation where the would-be miner was told that there was a site in the middle of the proposed pit but that no problems would be raised about the site if $50,000 was paid (which was paid). Anecdotal evidence is that at least one alleged site in the Goldfields area in Western Australia "disappeared" in exchange for a metal detector.

However, leaving aside these examples of opportunism, generally speaking, Aboriginal interests are becoming much more sensitive to site clearance issues and becoming more interested in ensuring their heritage is preserved. In many areas Aboriginals are no longer prepared to enter onto a piece of land and clear the land for any exploration or mining activity. They are now more inclined to ask for a program of the work which is proposed and the specific locations proposed for that work and then to agree to "clear" that program. This pattern is the norm for the Kimberley area in the north of Western Australia. However, in the Goldfields the norm is still for site clearance rather than work program clearance.

MANAGEMENT OF ABORIGINAL ISSUES

Despite the hopes of some short-sighted participants in the mining industry, Aboriginal issues in general and native title and heritage issues in particular will not go away.

The more progressive of the mining companies are entering into serious negotiations with local Aboriginals. It is not an easy process and it is made more difficult by the "power plays" amongst Aboriginal land councils, advisers and native title claimants themselves. It is understandable that in these relatively early days of recognition of Aboriginal land ownership in Australia, these groups are jockeying for position. But it doesn't make life easy for the developer of a project.

In Western Australia, there is a company which wishes to develop a major nickel project. On the subject land, there are 22 separate native title claims. Of these, a couple may be legitimate, a couple may be as a result of "power plays" between groups, but the bulk of them are driven purely by economic opportunism.

A notorious example is the Century Zinc project. This A$1,100m project seems to be hopelessly bogged down for the foreseeable future. In fact those are the words of RTZ-CRA's Managing Director, stating the negotiations are:

"bogged down in unproductive gamesmanship, tactical delaying and unnecessary obstacles to agreement".[26]

The latest round of negotiations took place in the week up to 14 February 1997 prompting the lead paragraph in the press analysis:

The St Valentine's Day Massacre in Mount Isa on Thursday and Friday last week, giving CRA its third failure in getting local Aboriginals to agree to developing the Century zinc deposit, is a huge setback for both the mining industry and the native title industry.[27]

This project is the subject of native title claims by 12 groups. I can't do better than quote the press report:

CRA and Pasminco - vendor and buyer of Century Zinc are back to square one. Having broken ranks and used the Native Title Act processes instead of special legislation and then having made a generous offer to the 12 different claimants, CRA does not have a sale and Pasminco does not have a mine.

The mining industry knows that Century will be the new benchmark, setting not only the level and type of compensation for approval of projects on land covered by native title claims (which is just about all of them) but also the way the offers are made and negotiated and the money distributed. In those terms Century has set the high jump bar at two metres and dug a pit in front of it.

For the National Native Title Tribunal and the Aboriginal and Torres Strait Islanders Commission, Century is a disaster. The whole system of native title is, to a large extent, built on the presumption that regional Aboriginal groups are prepared and able to negotiate reasonable outcomes with landowners and leaseholders.

Three times now CRA has got close to a deal on Century, and each time it has hit a brick wall of native title claimants who simply "will not negotiate".[28]

The system is flawed in that it is too easy to lodge a native title claim (there is no real acceptance test) and the fact of simply lodging a claim is sufficient to give standing in the "right to negotiate" process. At Century, CRA needed signatures of all twelve claimants which means that each of them has a veto. I understand that six claimants agreed but six would not accept CRA's offer. Those in favour represented about 700 people; those against represented about 60 and many of them lived a long way from the mine site. The offer totalled $60 million over the life of the mine and was to be paid in a number of ways: the transfer of four pastoral properties to the local communities, an employment and training package, an environmental monitoring program, a business opportunities program using a trust fund for venture capital to be provided to the locals, a community development trust, an Aboriginal heritage preservation program and retrospective compensation for the bulk sample that has already been mined from Century.

THE OK TEDI LITIGATION

As required by the topic for this paper, I now move from a consideration of native title and Aboriginal heritage issues in Australia to consider the litigation over environmental damage caused by the Ok Tedi mine in Papua New Guinea.

Background

Located in the Western Province of Papua New Guinea, Ok Tedi is a major copper and gold mine. It is owned by the Australian company BHP (60%), the government of Papua New Guinea (20%) and German Inmet Mining Corporation (20%). The Ok Tedi litigation began with allegations by landowners along the Ok Tedi and Fly Rivers that tailings from the mine were causing serious environmental and health problems.

The true extent of the environmental damage is contentious. Some claim that the damage extends to the Torres Strait and as far as the Great Barrier Reef. Solicitors for the plaintiffs claimed that every day, the mine discharges 100,000 tonnes of tailings into the river scheme containing "large quantities of copper, one of the most poisonous metals known when released into the aquatic eco system".[29]

The Australian Conservation Foundation said in 1992, that the Ok Tedi River up to 70km from the mine was "almost biologically dead". Alex Maun, a plaintiff in the matter stated rather bluntly, "...we used to drink, wash and fish in the river...but when the mining began in 1984, the river became polluted".

Ok Tedi Mining Ltd (subsidiary of BHP and operator of the mine: "OTML") has pointed out that the mine environment is very difficult. Like much of PNG, the terrain around the mine is very unstable. These conditions, combined with frequent seismic activity and 8 to 10 metres of annual rainfall, increase the likelihood of natural landslips. OTML claims that these natural forces add about 90 million tonnes of sediment a year carried by the Fly River system. OTML says:

This environment has limited our options for the management and disposal of the waste rock and mill tailings from the mine. The tailings are ground-up rock, with a similar composition to the sediment released by regular natural landslips. Copper is the only element in the tailings elevated above background levels.[30]

OTML points to 120 independent studies on waste retention schemes and, given the specific physical characteristics of the region, claims that the stability and long term safety of a tailings dam cannot be assured. OTML says:

The Government at present permits the discharge of tailings into the Ok Tedi. The effects are controlled by a regulatory framework which sets maximum limits on sediment levels in the Ok Tedi and the Fly River. We have complied with all regulations.[31]

OTML claims that monitoring studies indicate the environmental impacts on the Ok Tedi and Fly River will be temporary and that the system will progressively return to its pre-mine state when mining is completed.[32]

It was a condition when the mine was first approved that a tailings dam be built in order to prevent poisonous tailings from entering the river scheme. The collapse of the dam before the mine opened meant that there has never been a dam. OTML received permission from the PNG government to continue without a dam. Political and economic factors assisted in this decision. Civil unrest in Bougainville caused by the closure of the Panguna mine caused a 40% reduction in PNG's export income. The threatened closure of the Ok Tedi mine because of the $1.5 billion cost to build a dam meant that if the Government ordered the building of the tailings dam there would have been extreme damage to the PNG economy.

Legal Proceedings

The landowners resolved to bring legal proceedings against the mine owners and operator for loss and damage suffered as a result of the tailings entering the river system.

Test cases were initiated by four writs against BHP lodged in Melbourne, Victoria, in the names of Rex Dagi, John Shackles, Baat Ambetu and Alex Maun (representing three clans numbering 73 people) and Daru Fish Supplies Pty Ltd (a commercial fishing company). Thereafter writs for the balance of 500 clans' claims were lodged in the National Court of Papua New Guinea.

At all times, BHP has contended that it acted legally with authorisation from the PNG government and by virtue of the various leases and licences issued to the defendants.

Several proceedings took place before the Supreme Court of Victoria including applications:

(a) against the plaintiffs for security of costs

(b) by the plaintiffs to have default judgment entered against BHP after ignoring warnings that the time for filing a defence was about to expire: judgment was entered but later set aside by the court

(c) to have the plaintiffs' solicitors punished for contempt of court after speaking out about the case: struck out

(d) to have the plaintiffs' solicitors enjoined from speaking out about the issues in the case: rejected

(e) by the defendants to strike out the statement of claim: failed

(f) for leave to amend the defence to plead want of jurisdiction: failed

(g) to question the validity of the retainer agreement between the plaintiffs and their solicitors: failed

(h) to oust the jurisdiction of the Supreme Court of Victoria to hear the cases on the grounds that the Court could not determine issues relating to land situated in another jurisdiction (the "Mozambique principle").[33]

The Court recognised that " at common law, the Court will refuse to entertain a claim where it essentially concerns rights, whether possessory or proprietary, to or over foreign land, for these rights arise under the law of the place where the land is situate and can be extinguished only in the courts of that place".

Therefore Byrne J ruled that the claim for damages and other relief founded on trespass by the defendants could not be entertained in Victoria. However, he ruled that the claim for negligence for damage other than to land could proceed. Byrne J concluded that the basis of the plaintiffs' cause of action in negligence was the plaintiffs' loss of amenity or enjoyment of the land. He ruled that this was not based on a possessory or proprietary right to this land[34]

(i) by the plaintiffs for leave to be released from the usual implied undertaking as to non-disclosure of materials obtained on discovery to enable the plaintiffs to give a copy of an expert report to the PNG government: opposed by BHP but successful.

The 8th Supplemental Agreement

In response to the plaintiffs' suit, a Bill to ratify the 8th Supplemental Agreement to the original agreement relating to the development of the mine was proposed by the Papua New Guinean government for consideration by the PNG Parliament. The effect of this 8th Supplemental Agreement was to prevent the plaintiffs and landowners along the river from suing the Ok Tedi mine owners or claiming any further compensation. The Agreement proposed compensation for the environmental damage of 110 million kina (approximately US$80 million). It provided that any person who breached the Agreement or failed to comply with the Agreement would be fined 100,000 kina plus 10,000 kina a day for a continuing breach. The Agreement also provided that no person could challenge the Agreement, once the Bill was enacted, by claiming that its provisions offended against the Papua New Guinean Constitution. Moreover, it prohibited persons assisting people to bring legal proceedings or giving evidence in legal proceedings.

Further, if OTML was ordered to build a tailings dam, it would be entitled to reduce the compensation payable dollar for dollar. Given that the cost of a tailings dam would far exceed the total amount of compensation payable over the life of the mine, this would effectively end all payments of compensation. In the words of the plaintiffs' lawyer:

When we saw the agreement, we were staggered that a foreign government could draft an agreement that so abrogated the fundamental democratic rights of its citizens and stood in flagrant disregard of international treaties, such as the United Nations Universal Declaration on Human Rights, let alone its own Constitution. But then we had another shock. We noticed that word processing codes at the bottom of the Agreement and the Bill were the same as those emanating from the offices of BHP's Australian lawyers. Thus, human rights and freedoms Australians hold dear were being swept away on the instructions of an Australian company to its Australian lawyers.[35]

On 4th September 1995, a summons was filed by the plaintiffs against BHP alleging contempt of court by reason of its conduct in relation to the drafting of the Agreement. The plaintiffs alleged that BHP had assisted in the drafting of the Agreement that abrogated the rights of the landowners and this amounted to a contempt of the Court.

Cummins J held[36] that BHP and OTML had been guilty of contempt of court by interfering with the due administration of justice. As Cummins J pointed out, one of the more telling pieces of evidence in relation to this finding was the identical word processing codes at the bottom of the Agreement and the Bill to the code used by BHP's lawyers.

BHP successfully appealed[37] the decision on the basis that the plaintiffs did not have standing to bring proceedings because s46 of the Public Prosecutions Act 1994 required that only the Victorian Attorney General could bring actions for contempt of court. Although the appeal succeeded on this technicality, the media portrayed BHP as "guilty" for attempting to avoid the litigation by the Papua New Guinean landowners.

The Resolution Of The Ok Tedi Litigation

On 11 June 1996, BHP and the plaintiffs announced a settlement of the litigation which included monetary compensation for the damage to the environment and lifestyle of the Ok Tedi and Fly river communities.

BHP announced the outcome as follows:

(1) The legal proceedings in Victoria and Papua New Guinea would be discontinued.

(2) BHP would cover the plaintiffs' legal costs of the litigation - estimated at $7.6 million.

(3) BHP was committed to supporting a full inquiry announced by the Papua New Guinean Government in search of a better alternative to tailings disposal (such as by a pipeline to stable land below the mountains).

(4) OTML agreed to examine the feasibility of dredging the river beds to deepen the river, removing the tailings sediments.

(5) OTML would pay compensation to the value of $110 million (The cost of alternative tailings disposal, estimated at $300 million, is in addition to this compensation).

(6) Training, development, education and business opportunities for local villagers.

Slater and Gordon (the plaintiffs' solicitors) announced the settlement in a media statement as follows:

The landowners regard the settlement as a victory for all concerned. It should send a message to the international investment community that any dispute that arises in a major resources project in PNG can be resolved peacefully and with goodwill. Landowners believe that the result has vindicated their decision to pursue their remedy through the Courts in Australia and PNG.

Broader Implications Of The Ok Tedi Litigation

The Ok Tedi litigation has focussed international public attention on the relationship between the environment, indigenous people and resource development.

I offer the following observations arising from the Ok Tedi litigation;

(1) The case highlighted that the problems of major resource developments in relatively poor nations are not easy to solve. The Ok Tedi mine is a major contributor to the economy of Papua New Guinea with the mine producing close to 17% of the nation's export income. As BHP has consistently pointed out, the mine has brought into the nation large sources of capital for education, infrastructure and employment opportunities. However, there can be no doubt as to the serious degradation of the environment that has occurred as a result of the Ok Tedi mine. It presents the classic "Catch 22": economic development at the cost of environmental damage.[38]

(2) This brings the issue to a question of which standards do we apply to companies which in exploiting a resource overseas act in a way that would be unacceptable in their own countries. Organisations such as Community Aid Abroad and the Australian Conservation Foundation have called on the Australian Government to enact legislation imposing a code of conduct for Australian companies which operate overseas. This is strongly opposed by the resources industry which claims that the best solution is self regulation.

It is a difficult decision. One of the reasons why major companies from Europe, North America and Australia engage in operations overseas is that the regulatory environment at home has become stricter (and in the case of Europe, prohibitive). As Professor Wälde has remarked: "In developed countries (apart from major mineral producers such as Canada, the US and Australia), mining is becoming an endangered species".[39]

I believe the bracketed words can now be deleted.

The type of legislation that has been suggested would mean a reduction in the profits of mining companies as they adhere to Australian standards in their overseas operations. In some circumstances, those standards might be inappropriate. In others, the host government may not want those standards imposed. A possible outcome is that the project will not proceed: a loss for the host country. Perceptions differ so markedly: BHP prides itself on obedience to "the world's best practice" . However, the Australian Conservation Foundation comments, how can the world's best practice be "consistent with the annual discharge of 60 million tonnes of residue into the Ok Tedi and Fly Rivers, which would not be allowed in a developed country".[40]

There is a demonstrated need to find international standards on which to measure and guide the practices of companies involved in major resource development. Introduction of environmental standards through an international organisation seems to be a more acceptable course of action than either legislation in the companies' domicile or United Nations' conventions. The UN is not perceived as having the appropriate balance between environment and development.

The benefits of finding international standards on which to judge companies for their treatment of the environment and the indigenous seem obvious. However, there are problems in internationalising this issue. For example, it impinges on the innate right of a sovereign country such as Papua New Guinea to enact its own laws, as it did in response to the legal actions against the Ok Tedi mine. However the continuing trend towards the internationalisation of issues such as the environment must be recognised. The environment is increasingly seen by the international community as "ours". The protection of indigenous rights is increasingly seen as "our responsibility" by the world community.

(3) The problems caused by the Ok Tedi mine and the course of the Ok Tedi litigation highlight the difficulty that local indigenous people have in protecting their basic rights to land and indeed their basic requirements for survival such as fishing and drinking from their traditional environments. Invariably the government which wishes to encourage the resource development is located far from the area which will be affected by the development. So the host government is generally less concerned with protection of local peoples' rights than is the developer. In most cases, the local people do not have any proprietary rights to the land and they lack the resources to contest the degradation of their environment.

This highlights again the desirability of an international solution for the protection of indigenous people. It is necessitated by the unwillingness of poor third world countries to forsake international investment opportunities in favour of indigenous rights and environmental protection.

(4) The increasing focus on international standards has turned attention to the United Nations for solutions. Recently, the development of the Declaration on the rights of Indigenous Peoples has created hope for some scrutiny or guidance from the major international body. The instrument refers to various rights of indigenous people. For example, Article 26 recognises the right of the indigenous to own, develop and control the use of traditional land and Article 27 refers to the right to restitution of the lands and resources which they have traditionally owned or used, and which have been confiscated or damaged without their consent.

This is complemented by the environmental policies of the United Nations such as The United Nations Conference on Environment and Development (UNCED) and the subsequent Rio Declaration on Environment and Development. In the latter, Principle 22 states that:

Indigenous people and their communities, and other communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Chapter 26 of Agenda 21 highlights the importance of cooperation with indigenous peoples.

(5) As Professor Wälde has noted:

The balance between economic development and environmental protection may need to be defined differently.[41]

He has pointed to the continuing tension between the tendency in Western countries for increasingly strict minimum environmental standards and the resistance in developing countries to the imposition of such standards from abroad. These countries will want to develop their own development versus environment equation and adapt externally suggested standards to local conditions, resources and politics. He sees no easy resolution to this inherent tension except a double standard: the Western world's strict standards and less restrictive minimum standards in developing countries which will evolve through self-realisation in the Third World of the ultimate benefit of sound environmental policies.

(6) Professor Wälde has also noted the related socio-cultural impact. Related to environmental concerns are conflicts between the technical imperatives of mining and petroleum operations and the existence and interests of local communities affected by such operations.[42]

The Ok Tedi situation is not far removed from the serious opposition from local communities which have closed down operations such as the Phuket tantalum plant in Thailand (burnt down by local citizens) or the Bougainville copper mine in Papua New Guinea. As Professor Wälde says:

Mineral laws, contracts and licenses have always taken into account local community interest by providing appropriate compensation to landowners and others affected by the operation. Some agreements provide for a local business development program and for training, if necessary also resettlement. However, it is still rare to find obligations to prepare a socio-cultural impact statement and set up a local community management program and to give a formal role to local community representatives in the decision and approval process incumbent on central government authorities as is by now standard practice in developed countries.

The centralist, and undemocratic, character of the often feeble and embattled governments in the underdeveloped world militates against the notion of community and citizen participation in such administrative procedures. However, we can expect that with the transition from pure mineral law to land-use legislation and the emergence and acceptance of community and citizen participation the socio-cultural impact will take a greater role in the mineral licensing and negotiating process. At the moment, these effects are to some extent taken into account by intelligent companies and government agencies and sometimes imposed on such actors, if recalcitrant, by the national and international development finance institutions themselves under the pressure of the developed world's environmental pressure groups.[43]

THE UNITED NATIONS AND HUMAN RIGHTS

The United Nations' human rights agenda has played a crucial role in the development and the protection of indigenous rights in Australia. Indeed, the Racial Discrimination Act 1975 (CTH) which underpins the decision in Mabo (No. 1) and Mabo (No. 2) is based on conventions of the United Nations.

Human Rights - Background

In 1946 the Commission on Human Rights was established to work on an International Bill of Rights. This was to consist of a Declaration of Human Rights, a covenant on human rights to transform the principles in the above Declaration into legal declarations and international machinery to ensure that the obligations were observed.

In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. In 1966, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination were adopted. Australia ratified the latter on 31 October 1975 by which time 80 nations around the world had done so.

UN Conventions and Australian Law

The ratification of treaties and use of customary international law allows the Australian Legislature to legislate with respect to matters concerning those sources. This is by virtue of section 51(xxix) of the Australian Constitution which allows the Commonwealth Parliament to legislate with respect to "external affairs". In Koowarta v Bjelke Peterson [44] the presence of treaty obligations was seen as a legitimate source of legislative power for the Commonwealth. In his judgment, Stephen J stated:

Even were Australia not a party to the Convention, this would not necessarily exclude the topic as a part of external affairs. It was contended by the Commonwealth that, quite apart from the Convention, Australia has an international obligation to suppress all forms of Racial Discrimination because respect for human dignity and fundamental rights, and thus the norm of non-discrimination on the grounds of race is now part of customary international law as both created and evidenced by State practice and expounded by jurists and eminent publicists In the present cases it is not necessary to rely on this aspect of the external affairs power since there exists a quite precise treaty obligation, on a subject of major importance in international relationships which calls for domestic implementation within Australia. This itself, without more, suffices to bring the Racial Discrimination Act 1975 (CTH) within the terms of section 51 (xxix).[45]

Thus, Koowarta established that the Racial Discrimination Act, by virtue of section 51 (xxix) of the Australian Constitution and the United Nations Convention, was a valid Act of the Australian Parliament.

So it can fairly be said that the UN Convention on the Elimination of All Forms of Racial Discrimination to enact the Racial Discrimination Act 1975 (CTH) has directly resulted in Aboriginal land ownership being recognised in Australia, the reason being that section 10 of the Act (relying on the Convention) underpins the judgment in Mabo (No. 1) which in turn permitted the litigation in Mabo (No. 2) to proceed.

The United Nations Declaration on the Rights of Indigenous Peoples

Work on this Declaration began in 1982. However is yet to be approved by the UN General Assembly.

In 1994 a draft was approved by the Working Group on Indigenous Peoples and referred to the Sub Commission on the Prevention of Discrimination and Protection of Minorities. In 1995, that group approved the Draft and referred it to the UN Commission on Human Rights. This body has created a working (drafting) group of member states and observers, including non government organisations to elaborate a declaration on the rights of indigenous peoples having regard to the draft elaborated by the Working Group on Indigenous Populations. This met for the first time on 20 November 1995. The final approval of the Draft will take several years to complete.

The Australian Government has begun consultation with the States and Aboriginal groups in respect of the Draft. Prior to the 1995 session of the UN Commission on Human Rights, Australia proposed increased involvement mechanisms for Indigenous Peoples. This was particularly caused by the increasing criticism of the Draft for its lack of consultation with Indigenous groups. Resolution 1995/32 was introduced by Australia and adopted by consensus giving Indigenous Peoples the right to participate.

The content of the Declaration is still under close scrutiny by all parties. It is envisaged that the final draft will contain a minimum standard for the survival and well being of indigenous peoples.

The Draft sets out the following rights relevant to the subject matter of this paper:

• the right to self determination (Article 3) including the right to maintain and strengthen their distinct political, economic and social life as well as their legal systems (Article 4);

• prevention of and redress for any action which has the aim or effect of dispossessing them of their lands, territories or resources (Article 7);

• the right to maintain and protect their past, present and future manifestations of their cultures such as archaeological and historical sites and ceremonies (Article 12);

• States are required to take effective measures in conjunction with the indigenous peoples concerned to ensure that sacred places, including burial grounds are preserved, respected and protected (Article 13);

• the right to maintain and strengthen their relationship with land and other resources which they have traditionally owned or otherwise occupied or used (Article 25);

• the right to own, develop, control and use the lands and other resources, including the full recognition of their laws for the development and management of resources (Article 26);

• the right to restitution of the lands and resources traditionally owned or used and where that is not possible, they have the right to just and fair compensation (Article 27);

• the right to determine priorities for the development of their lands and other resources, including the right to require that States obtain their free and informed consent prior to approval of any project affecting those lands or resources. Just and fair compensation must be provided for such activities and measures taken to mitigate their impact (Article 30).

The concept of self determination will be a difficult issue to resolve. Many States are opposed to self determination for Indigenous groups. The implication of self determination for some States is recognition of an obligation to hand over vast areas of land to indigenous groups. Moreover, some States see the Declaration as a means of justifying independence movements within the borders of nations.

Some of the issues in dispute do not seem so important. Brazil, for example, has raised the issue of dropping the "s" on "Peoples".

Australia and the International Community

Australia has participated in the growing guidance offered by the international community, particularly the UN, in matters concerning the environment and indigenous groups. Notably, one of the most influential decisions of the High Court (Mabo) was made on the basis of Conventions of the UN.

The recent Wik decision has re-affirmed Australia's reliance on international approval. This is most clearly seen in light of recent comments by various groups demanding the alteration or repeal of the Native Title Act. Given that the Act is supported by the Racial Discrimination Act, any such changes would conflict with that Act. As a consequence, there have been discussions on "watering down" the Racial Discrimination Act. However, this has been widely recognised as internationally irresponsible, given increasing pressure to recognise the rights of indigenous groups. It would therefore seem like an unrealistic option for the Australian Government to take that line in the face of the Wik decision.

Perhaps more realistically, the Australian public being sports mad, would be very concerned with the threat by the former chairperson of the Aboriginal and Torres Strait Island Commission that Aboriginals would cause an international boycott of the Sydney Olympic Games in the year 2000 if the Native Title Act is amended so as to affect Aboriginals' rights. Such a prospect would be regarded as far more serious by most Australians than the risk of breaching a UN Convention.

CONCLUSION

I want to conclude on a positive note. Mention of the Olympics reminds me of the great joy felt by all Australians at the success of the Aboriginal athlete Cathy Freeman at the Atlanta Olympics. Apart from the sort of lunatic fringe present in every country, Australia is not a racist nation - indeed it is one of the world's best examples of multi-culturalism. I admit that there is a great deal of concern in Australia concerning native title but I believe this emanates from a lack of understanding (which is hardly surprising given the complex and convoluted drafting of the Native Title Act) rather than racism.

Of course, indigenous peoples and other special interest groups will continue to present difficulties for developers of resource projects. So would I, if the projects were in my backyard.

I firmly believe that the way to resolve such problems is by direct negotiation with the people concerned. In the end result, coping with special interest groups and indigenous peoples issues is not so different from the many other issues which confront a mining developer. Just as a very difficult metallurgical problem must be worked on until solved (often at great expense and with considerable delay) so too must problems with claims by indigenous peoples be worked on by negotiations until solved (unfortunately, also usually at great expense and with considerable delay). But the bottom line is that the end result will be just another bottom line problem for the developer. Just as if the tonneage or grade is inadequate to justify the development, if the project won't bear the cost of compensating indigenous people and of an internationally acceptable environmental regime, the developer had better find another project!

Notes

[1] I appreciate the assistance of Conrad Marais, law student at the University of Western Australia, who undertook some of the research required for this paper.

[2] Michael Hunt ,"Mineral Development and Indigenous People - the Implications of the Mabo case, (1993) JERL 155.

[3] These issues are examined in detail in Michael Hunt, op cit n2.

[4] The expression "native title" was used by the High Court of Australia in Mabo (No. 2) to describe the interests and rights to land of indigenous Australians. It is the term used for the concept which elsewhere is generally called "indigenous land ownership".

[5] The Native Title Act 1993 (CTH) and its implications are examined in detail in Rick Ladbury and JennyChin, "Legislative Responses to the Mabo decisions: Implications for the Australian Resources Industry", (1994) JERL 207.

[6] The Wik People v The State of Queensland and Ors: The Thayorre People v The state of Queensland and Ors; Unreported High Court of Australia Number B8 1996. For further information on the response to the Wik judgements see Briggs,J. Denholder,A. "The implications of Wik: a snapshot guide." Proctor 17 (1) January/February 1997 pp 24 - 26. Murphy,D. "Land rights:native title minefield." The Bulletin 21 January 1997. pp 22 - 25.

[7] Mabo v State of Queensland (1988) 166 CLR 186. The litigation is discussed in Michael Hunt, op cit n2 at p156.

[8] These other decisions are outlined in Michael Hunt op cit n2 at pp157-160.

[9] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

[10] Rick Ladbury and Jenny Chin, op cit n5.

[11] Each State and the Northern Territory has now passed legislation complementary to the Native Title Act which validates titles issued by the relevant State or Territory prior to 1 January 1994; eg. (WA) Titles Validation Act 1995.

[12] The Commonwealth's Native Title Act and the corresponding State legislation do not apply to all pre-1994 titles. They only apply to validate titles which would otherwise be invalid because they affect native title. The importance of this statement is that the common law position as to the effect of grant of titles is not overruled by the NTA. Thus, for example, if the law is ultimately declared by a court to be that the grant of a pre-1994 title such as a lease extinguished native title, the NTA does nothing to affect this.

[13] The Land (Titles and Traditional Usage) Act 1993 (WA).

[14] Western Australia v The Commonwealth (commonly referred to as the Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373.

[15] North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225.

[16] The Government of Western Australia has given certain assurances to the mining industry, in relation to mining titles granted in the period between 1 January 1994 and 16 March 1995 that:

"(i) Each title issued during the period in question is regarded as valid and subsisting unless and until proven otherwise;

(ii) In the event any title is determined by the courts to be invalid by reason of a deficiency for native title reasons, a replacement title will be granted in accordance with the procedures of the Native Title Act 1993 and under the Mining Act 1978;

(iii) The Government has undertaken to protect and preserve the right, title and interest of any title holder to the exclusion of all others to the area covered by any title subsequently determined to be invalid."

[17] Attorney-General's Department, "Legal Implications of the High Court Decision in The Wik Peoples v Queensland", 23 January 1997, p12.

[18] Ward v Western Australia, Federal Court, WAG 6006 of 1995, judgment 17 May 1996.

[19] Most of the recent decisions of the National Native Title Tribunal have upheld the objections and ruled that the expedited procedure does not apply to the grant of an exploration licence, whereas most of the earlier decisions ruled that it did apply.

[20] The Federal Court has ruled that the conduct of bona fide negotiations by the State is an essential pre-requisite to further proceeding with the process to authorise the grant: Walley v Western Australia, Federal Court, WAG 6004 of 1996, judgment 20 June 1996.

[21] High Court of Australia (not yet reported), 23 December 1996.

[22] Premier Borbidge: The High Court is "an embarrassment". Its Wik ruling has placed at "grave risk" confidence in the law and caused "pain, hurt and sense of bewilderment among Queenslanders". This ruling has "reinvented common law and rejected centuries of jurisprudence". The Australian newspaper February 19, 1997, pages 1 and 2.

[23] As confirmed by the Attorney-General. See n16.

[24] Premier Borbidge (Qld) has proposed an overhaul of the High Court, including "establishing a higher court to oversee its functions" and "giving the public the power to sack judges": West Australian newspaper, February 19, 1997. Even a former Chief Justice of High Court (Sir Harry Gibbs) has backed an increased role for the States in selecting justices: The Australian newspaper, February 19, 1997.

[25] Bulletin magazine, January 21, 1997.

[26] Mr Leigh Clifford, The Australian newspaper February 19, 1997.

[27] Alan Kohler, The Age newspaper, February 17, 1997. Since this article has been written a settlement has been negoiated.

[28] Ibid.

[29] John Gordon "The Law Sickens From A Poisoned Environment" Law Soc Jo (Vic) October 1995, p58.

[30] Ok Tedi Mining Ltd, "Annual Review 1995".

[31] Ibid.

[32] Ibid.

[33] British South Africa Co v Companhia de Mozambique [1893] AC 602.

[34] The Broken Hill Proprietary Company Ltd v Dagi and Others, unreported, Byrne J, 22 September 1995

[35] John Gordon "The Law Sickens From A Poisoned Environment", Law Soc Jo (Vic) October 1995, p58.

[36] Dagi and Others v The Broken Hill Proprietary Company Ltd, Sup Ct of Victoria, unreported, 27 September 1995.

[37] The Broken Hill Proprietary Company Ltd v Dagi and Others [1996] VicRp 62; [1996] 2 VR 117.

[38] This potential for conflict has been examined in detail by Prof. T. Wälde in "Environmental Policies Towards Mining in Developing Countries", 1992 JERL 327.

[39] "Innovations in Petroleum and Mining Licensing", Energy and Resources Law '92, I.B.A. p393 at 401.

[40] Barker G, "Papua New Guinea: Geoffrey Barker Surveys the Principles at Stake at Ok Tedi", October 1995 Australian Financial Review newspaper.

[41] Prof T. Wälde, op cit n37 at 354.

[42] Prof T. Wälde, op cit n38 at 405.

[43] Ibid.

[44] (1982) 153 CLR 169.

[45] Ibid at p220.