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Comments on Final Report of the Technical Taskforce on Mineral Tenements and Land Title Applications (November 2001)

29
January 2002

Ms Ingrid Hebron
A/Principal Policy Officer, Native Title Unit
Ministry of Premier and Cabinet
197 St George's Terrace
PERTH WA 6000

By e-mail and post

Dear Ms Hebron

Comments on Final
Report of Technical Taskforce (November 2001)

Thank you for your
letter of 20 December 2001 forwarding me a copy of the Final Report ('Report')
of the Technical Taskforce on Mineral Tenements and Land Title Applications
('Taskforce') and inviting my comments on this document. As noted
in my letters to you of 10 and 14 September 2001, I commend the Taskforce's
work in developing a land-use and minerals strategy according to policy
objectives including protection of native title. I stated to the Taskforce
(in response to its Discussion Paper), and consider it useful to repeat
to the Western Australian Government, this initiative is an opportunity
to establish an equitable basis for the recognition of native title rights
within the framework of land tenure and management in Western Australia.

Many of the points
I made in my 10 September submission to the Taskforce have not been addressed
in the Report. This is unfortunate because, had the Taskforce commented
on the issues covered in my submission (by explaining either changes addressing
my concerns, or why they have not followed such a course) the Government
would know the Taskforce's views on these human rights issues. As it is,
my concerns remain that the Report is contrary to various human rights
standards in that:

  • recommendations
    focus on the reduction of the 'backlog' of mineral tenement applications
    (and other future act applications) rather than the development of a
    long-term approach including native title rights within land management
    in Western Australia;
  • heritage agreements
    are substituted for more substantial negotiation with native title parties;
    and
  • a policy of non-extinguishment
    is not adopted for all dealings with native title land.

I enclose
a copy of my earlier submissions to the Taskforce, which remain relevant
to the Government's assessment of the Report. To assist in the Government's
consideration of this matter, I also emphasise the following six points.

1. An initial point,
which has not been properly reflected in the Report or associated discussion,
is that most of the 'backlog' exists not because of the actions and
objections of Indigenous people, or even because of the provisions of
the Native Title Act [1] ('Act'), but
because of the actions of the Department of Minerals and Petroleum Resources
('DMPR'). The Report shows that over two thirds of the
'backlog' comprise tenement applications that haven't been submitted
to the native title process.
[2]

The Report does
not explain why there is such a large delay in submitting tenement applications
to the native title process. Certainly, the Act's procedures established
in 1994 (and amended in 1998) require DMPR to address extra matters
before granting a tenement, but the time periods for this processing
are not prohibitive. [3] The Report's statistics suggest
the 'backlog' of applications withheld from the native title process
includes tenement applications of several years. [4]

The Report's lack
of explanation as to why tenement applications have been withheld from
the native title process is notable, and leaves readers guessing as
to why that occurred. Perhaps it is because government / DMPR has not
allocated sufficient resources to be able to comply with the 'good faith'
negotiation requirement under the Act? [5] Or it could
be applicant companies choose not to progress under the Act? Another
reason for the backlog may be that tenement applications were intended
to be granted under the Ward policy (namely, applications for
tenements on enclosed or improved pastoral lease land don't need to
comply with the native title process), or awaiting a favourable decision
by the High Court? Clearly, as has now happened, where a delay in granting
tenements builds up, this increases pressure to find some way to enable
those tenements to be granted, and in such a situation proposals to
limit Indigenous rights under the Act may attract greater support.

Whatever has contributed
to the 'backlog', various mineral interests and commentators are inclined
to think the delays are the 'fault' of the Act or Indigenous opposition
to mining. [6] The Government should clearly explain
the main cause for the 'backlog' (ie. two-thirds of the backlog haven't
even been submitted to the native title process) and the reasons behind
this cause (why are these applications withheld from the native title
process?).

2. The Report suggests
the Taskforce paid little attention to native title issues other than
protection of heritage. [7]

The Taskforce's
view is that most objections to the expedited procedure could be resolved
by heritage protection measures. [8] This view impliedly
accepts that some objections to the expedited procedure will not be
resolved by heritage protection. Nevertheless, the Taskforce suggests
that a tenement applicant's agreement to a heritage survey should prevent
native title parties from objecting to the expedited procedure. [9]
Such an approach would mean Indigenous people lose the right to raise
non-heritage concerns over use of their traditional lands. The Taskforce
acknowledges this result:

The option
recommended by the Taskforce removes the individual negotiation stage
providing instead for conduct of heritage protection procedures on
a regional basis.
[10]

Proposals that
prevent Indigenous people from having effective participation in decisions
affecting them or their land are contrary to Australia's human rights
obligations. [11] Native title is not simply a matter
of heritage protection.[12] The Government should
ensure that any modification to the current system of granting mineral
interests in land covered by a native title claim enables the particular
claimants associated with that land to effectively participate in decisions
affecting it.

The Government
may want to consider the recent approach in Queensland of drafting a
Statewide Model Indigenous Land Use Agreement [13]
('Model ILUA'). This document was drafted and agreed by government
and a peak body of land councils, and it acts as a basis for negotiations
over exploration on native title-claimed land. Where a company and claimant
group wish to use the terms of the Model ILUA to govern the relations
between them, they can agree to that, thereby saving time and money.
Where the parties wish to conduct their own negotiations, they can do
so ignoring the Model ILUA.

An approach similar
to that of the Queensland Model ILUA could occur in relation to regional
heritage agreements in Western Australia. That is, a heritage agreement
could exist as a baseline: where a claimant group's concerns in relation
to an expedited procedure tenement application were satisfied by the
regional agreement there would be no need to object, but where a group's
concerns were not met by the regional agreement, they could still use
the objection procedure.

3. A general comment
in relation to the expedited procedure is that it has been mis-construed,
by both DMPR and the Taskforce, in a manner that favours development
over non-Indigenous interests.

The Act allows
government to use the expedited procedure only when it considers
[14] that the proposed activity is not
likely to (a) interfere directly with the community or social activities,
(b) interfere with significant areas or sites, and (c) involve major
disturbance of land.
[15] Contrary to the
Act's provisions, DMPR uses the expedited procedure in relation to any
mineral tenement other than mining leases. [16] DMPR's
policy continues, notwithstanding that the National Native Title Tribunal
('Tribunal') has repeatedly ruled, and various parties have agreed,
that numerous non-mining tenements cannot be granted under the expedited
procedure.[17] These cases from the Tribunal show
that DMPR's policy is flawed because numerous non-mining lease tenements
have been adjudged inappropriate for the expedited procedure. What DMPR
should be doing is following the Act by considering each tenement application
and determining whether the expedited procedure is justified in each
case (and such justification is where the tenement only allows activities
[18] that are not likely to interfere with the relevant
community and sites, and are not likely to be a major
disturbance to that land).

The Report, however,
aligns itself to DMPR's flawed policy by characterising the expedited
procedure as a process where the government simply asserts expedition
and then the onus is on Indigenous people 'who believe the proposed…activities
will have a significant impact on native title rights and interests'
. [19]

I have previously
explained the importance of the right to negotiate and how the expedited
procedure should not be used to limit the negotiations. [20]
I repeat my earlier submissions and urge the Government to consider
this issue in determining what use to make of the Report's recommendations
on the expedited procedure.

4 The Taskforce
stated, in relation to the High Court's Yarmirr [21]
decision:

'The decision
confirmed that while native title can exist off-shore it can only
be non-exclusive. The decision means that whilst the right to negotiate
does not apply there may be procedural rights to be complied with'
.
[22]

The Taskforce's
analysis of the 'exclusivity' aspect in Yarmirr is incorrect.
The relevant part of the High Court's Yarmirr decision was that
the particular claims made by the applicants (namely they had a right
to exclude all persons from the area) could not succeed because of public
rights to fish and navigate and the international right of innocent
passage.[23] I agree the High Court's reasoning suggests
native title rights to exclusive possession of the sea cannot be recognised
by Australian courts. However, the decision does not mean
the only native title rights that can be recognised in the sea must
be non-exclusive: exclusive aspects of native title sea rights that
are compatible with public rights (fishing, navigation or innocent passage)
were not ruled out by Yarmirr.

Take, for example,
the exclusive rights often included in native title claims to "use
and enjoy resources of the area" or "trade in resources of
the area". Provided these rights do not impinge on public rights
of fishing, navigation, or innocent passage, there is no reason from
Yarmirr why these native title rights cannot be recognised. [24]
To further illustrate the exclusive / non-exclusive distinction it may
be useful to consider a non-native title example: when a company gains
an exploration licence over land in WA, the company does not have exclusive
possession of that land, [25] but it does have various
exclusive rights in relation to that land [26].

Yarmirr
also contains some general observations on Indigenous rights to control
resources [27] that are not reflected in the Report.
Accordingly, it may not be prudent for the Government to rely on aspects
of the Report that are based on the Taskforce's view of the Yarmirr
decision.

5. I have previously
addressed the issue of non-extinguishment of native title rights [28]
and suggested the Taskforce should recommend use of the non-extinguishment
principle for all dealings with native title land. I maintain my earlier
comments, which have not been addressed by the Taskforce, and I suggest
non-extinguishment is a matter that should be carefully considered by
government.

The crux of this
issue can be simply explained. Nowhere has it ever been the case in
Australia that non-Indigenous interests, validly created by government,
are extinguished by native title rights. In Mabo, [29]
in the Native Title Act, in Wik, [30] and all
subsequent court decisions, the law is that validly created non-Indigenous
rights over-ride native title rights to the extent of any inconsistency.
[31] Where the government creates a future interest,
by granting mineral or land use rights in land under native title claim,
if that future interest has been validly created then native title rights
do not impair that interest. Indeed, the interest prevails over any
inconsistent native title rights. [32] However there
is no justification for why, when an inconsistent non-Indigenous interest
in land is removed, native title rights cannot be recognised in that
land.

I recommend that
the non-extinguishment principle be used in relation to all interests
created in land that may be covered by a native title claim. This will
not affect the future interest that government creates (because, provided
it is created validly, the future interest prevails over native title
rights). Non-extinguishment simply allows Indigenous rights in that
country to be recognised after the non-Indigenous interest has expired.

6. Another point
in relation to extinguishment of native title is the Taskforce's recommended
use of the compulsory acquisition process. I have already explained
human rights issues relevant to compulsory acquisition [33]
and I urge the Government to act in accordance with my earlier submissions.

The additional
point I wish to make here, however, is that any time the compulsory
acquisition process is used it carries with it extinguishment of native
title rights. [34] This prevents any future recognition
of Indigenous interests even where the non-Indigenous interest (which
was created through the compulsory acquisition process) may be removed
in the future. As noted in point 5, above, there is little justification
for the permanent extinguishment of native title rights (when they could,
instead, be suspended for the duration of the inconsistent interest).
Accordingly, I recommend the Government not to use compulsory acquisition
processes.

My normal procedure
is to make publicly available my comments / submissions on native title
matters. If you do not wish that to occur with this letter, please contact
me to discuss this.

If you have any questions
regarding this matter, please contact John Southalan who is a Senior Policy
Officer with the Human Rights & Equal Opportunity Commission. John's
e-mail address is johnsouthalan@humanrights.gov.au
and direct telephone number: (02) 9284 9728.

Yours sincerely

Dr William Jonas
AM
Aboriginal and Torres Strait Islander Social Justice Commissioner


1. Native
Title Act 1993 (Cth).

2. 7,428
from a total of 11,081 'pending tenements', or 67%, are 'awaiting submission
to the NTA process' (figures compiled from Report Appendices 8 to 14).

3. The
Taskforce notes that processing a tenement application through the expedited
procedure (where there has been objection) takes around six months (Report,
p40). National Native Title Tribunal ('Tribunal') statistics indicate
that, nationally, nearly 70% of expedited procedure applications are not
objected to, allowing the relevant tenements to be granted within six
months (Neate, G, 'Native Title and Mining Industries In Australia: Meeting
The Challenges And Pursuing The Possibilities', Paper delivered at Australian
Mining Seminar Australia House London, 7 February 2001, pp23-24).Where
a tenement goes through the longer negotiation procedure there is a six
month period for 'good faith' negotiation and, if no agreement is reached
and the Tribunal is asked to arbitrate, a decision is required within
a further six months (Report, p43).

4. DMPR
currently has over 7,400 tenement applications which are awaiting submission
to the native title system (see fn 2 above). The Report states about 3,500
tenement applications are received by DMPR each year, with around 100
applications entering the 'backlog' each month (p39). Arithmetic suggests
a figure of 7,428 could not be reached until several years' applications
have been withheld from the native title process.

5. 'Because
of the numbers [of 'backlogged' tenement applications] involved, lease
applications are only being put into the [native title] process at the
request of the applicant', Review of the Project Development Approvals
System: Interim Report for comment, Independent Review Committee, Perth,
2002, p39.

6. 'More
than 11,000 applications are stalled in the native title process
,
a figure relatively unchanged for more than two years.', Stevens, M, Miners
warn against quick fix , The West Australian newspaper, Perth, 19 January
2002 (emphasis added).
The Chamber of Minerals and Energy of Western Australia Inc observed 'The
minerals industry, along with all Western Australians, needs certainty
of land tenure and processes which allow for timely negotiations with
legitimate native title claimants. The 1993 Native Title Act has not delivered
what Australia needs. ...What's wrong with the Native Title Act? It simply
isn't working. …The Act hampers mineral operations and developments
because…It permits and encourages increasing and lengthy delays in
approval of land titles - more than 2,000 minerals applications are caught
in an administrative backlog, some for up to three years, delayed by the
Right to Negotiate with no effective procedures to resolve the delays.
Prior to the Act coming into force in January 1994, mining leases would
normally be granted within six to eight months', Let's Make Native Title
Work (Issue Paper No 1, March 1998), available at www.mineralswa.asn.au/cme/frameset.cgi/2/1,
accessed 15 January 2002.

7. eg.
'In developing the mineral tenement options, the Technical Taskforce has
been cognisant of the primary concerns of the key stakeholders: The need
to provide better protection for aboriginal heritage [and] The desire
of industry to retain the integrity of the Mining Act 1978', Report, p15.
See also Report, p49.

8. Report,
p61.

9. Report,
pp21 & 49.

10. Report,
p104.

11. See
section 1.3 of my submissions to the Taskforce.

12. See
section 3.1(c) of my submissions to the Taskforce.

13. See
Queensland government statement 'Statewide Model Indigenous Land Use Agreement',
www.nrm.qld.gov.au/resourcenet/mines/nativetitle/ilua.html,
accessed 15 January 2002.

14. Act,
s29(7).

15. Act,
s237.

16. Report,
p157.

17. Examples
of recent cases include James & o'rs on behalf of the Martu People
-v- Western Australia & Devalia Pty Ltd (8 January 2002, Member Sumner),
Freddie -v- Western Australia & Povey (19 December 2001, Member Stuckey-Clarke),
Velickovic -v- Western Australia & o'rs (8 June 2001, Member Franklyn),
and Young on behalf of the Ngadju People -v- Western Australia & South
Coast Metals (7 June 2001, Member Sosso).
There are also many cases where, after the native title party has had
to prepare and lodge an objection to the expedited procedure, the tenement
application has been withdrawn or the expedition notice dropped. This
indicates either the government or applicant did not want, or was unable
to justify, that tenement's proceeding under the expedited procedure.
Recent cases of this type include Gulngarring & Luwanbi on behalf
of the Warai -v- Northern Territory of Australia & o'rs (19 December
2001, Member Sosso), Johnny & o'rs for the Kunapa/Kurtinja/Mangirriji
and Kunakiji/Lurrkunu Peoples -v- Northern Territory & Rio Tinto Exploration
(28 November 2001, Member Franklyn), and Lansen on behalf of the Mara,
Alawa,Yanyuwa and Gurdanji Peoples -v- Northern Territory & North
Mining Limited (22 October 2001, Member Sumner).

18. The
question of whether a tenement properly falls within the expedited procedure
focuses on the full range of rights permitted under the tenement, and
is not decided only by considering the applicant's proposed activity on
the tenement: Dann -v- Western Australia (1997) 74 FCR 391.

19. Report,
p40.

20. Previous
submissions to the Taskforce, section 3.1(a).

21. Yarmirr-v-Commonwealth
[2001] HCA 56 (11 October 2001) ('Yarmirr').

22. Report,
p64.

23. '[T]here
is a fundamental inconsistency between the asserted native title rights
and interests and the common law public rights of navigation and fishing,
as well as the right of innocent passage' and '[The Commonwealth's] sovereignty...is
not consistent with the continuation of a right in the holders of a native
title to the area for those holders to say who may enter the area', joint
judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, Yarmirr, para's
98-99 (emphasis added).

24. Accordingly,
an exclusive right to control the use of resources under the sea-bed doesn't
contravene Yarmirr. The High Court indicated that infrastructure, which
would be needed to exploit under-sea resources, is not inconsistent with
public rights of fishing, navigation and innocent passage: '[N]either
the public right to navigate, nor the right of innocent passage, require
free access to each and every part of the territorial sea', joint judgment
of Gleeson CJ, Gaudron, Gummow and Hayne JJ, Yarmirr, para 96.

25. Mining
Act 1978 (WA), s66(a).

26. see,
eg., Mining Act 1978 (WA), s155 combined with ss18, 66, 67, 76, and 117.

27. Justice
Kirby addressed the issue of native title rights to minerals, saying '[I]t
is not enough merely to allow Indigenous peoples to carry out their traditional
economic activities without legal protection for their exercise of control
and decision-making in relation to developments (including the use of
natural resources … [T]he principle of non-discrimination must include
a recognition that the culture and laws of Indigenous peoples adapt to
modern ways of life and evolve in a manner that the cultures and laws
of all societies do' (para 295). Although Justice Kirby was in the minority
in other respects, none of the other 3 judgements in Yarmirr disagreed
with his Honour's comments on this issue.

28. See
section 3.2 of my submissions to the Taskforce.

29. Mabo
& o'rs -v- Queensland (No 2) (1992) 175 CLR 1.

30. Wik
Peoples & o'rs -v- Queensland & o'rs (1996) 187 CLR 1.

31. In
Mabo, a majority ruled 'A Crown grant which vests in the grantee an interest
in land which is inconsistent with the continued right to enjoy a native
title in respect of the same land necessarily extinguishes the native
title', per Brennan J at p68. Mason CJ and McHugh J agreed (p15) and Dawson
J's judgement, in denying native title rights existed to affect any crown
grant (eg. p149), arrives at the same result.
The NTA validated 'past acts' (which include legislation, grants of interest
in land, and any other actions that have legal effect before mid 1993:
ss226-228) of the Commonwealth (s14) and allowed State and Territory governments
to validate their past acts (s19). All States and Territories have done
so - Western Australia in part 2 of the Titles (Validation) and Native
Title (Effect of Past Acts) Act 1995 (WA).
In Wik, a majority explained 'To say that the pastoral leases in question
did not confer rights to exclusive possession on the grantees is in no
way destructive of the title of the grantees', Toohey J (with whom Gaudron,
Gummow and Kirby JJ concurred on this point - CLR p189-190). Following
Wik, the NTA was amended to validate various government acts that had
created interests contrary to the original NTA provisions: ss23B and 23F.
This had the effect of preferring non-Indigenous interests over native
title rights.

32. Act,
s44H.

33. See
section 3.2 of my submissions to the Taskforce.

34. Act,
s24MD(2)(c). Note, however, that in the uncommon case where compulsory
acquisition does not acquire all non-Indigenous interests, native title
rights may be preserved: s24MD(3).

Last updated 12 June 2002.