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ELECTRONIC VERSION

LAND AND RESOURCES TRIBUNAL BILL 1998

LEGISLATION BULLETIN NO 1/99

PETER BARTHOLOMEW

QUEENSLAND PARLIAMENTARY LIBRARYPublications and Resources Section

BRISBANEFebruary 1999

ISSN 1324-860XISBN 0 7242 7847 8

This Legislation Bulletin was prepared to assist Members in their consideration of theBill in the Queensland Legislative Assembly. It should not be considered as a completeguide to the legislation and does not constitute legal advice.

The Bulletin reflects the legislation as introduced. The Queensland LegislationAnnotations, prepared by the Office of the Queensland Parliamentary Counsel, or theBills Update, produced by the Table Office of the Queensland Parliament, should beconsulted to determine whether the Bill has been enacted and if so, whether thelegislation as enacted reflects amendments in Committee. Readers are also directed tothe relevant Alert Digest of the Scrutiny of Legislation Committee of the QueenslandParliament.

© Queensland Parliamentary Library, 1999

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Research Publications & Resources,Queensland Parliamentary Library, Parliament House, George Street, Brisbane.Director: Ms Mary Seefried. (Tel: 3406 7116)

Information about Research Publications can be found on the Internet at:

http://www.parliament.qld.gov.au/library/research/index.html

CONTENTS

1. INTRODUCTION ........................................................................................... 1

2 BACKGROUND .............................................................................................. 2

2.1 NATIVE TITLE ISSUES .............................................................................. 2

2.1.1 State/Territory ‘right to negotiate’ and ‘alternative provision’ regimes... 2

2.1.2 Acts Passing the Freehold Test .............................................................. 4

2.2 THE MINING WARDENS COURT................................................................ 6

2.2.1 Jurisdiction of the Mining Wardens Court.............................................. 6

2.2.2 Appointment of Wardens and the Constitution of the Mining WardensCourt .................................................................................................... 7

2.2.3 Hearings................................................................................................ 8

2.3 THE 1998 DISCUSSION PAPER ON THE ADMINISTRATIVE PROCESSES AND

FUNCTIONS OF THE WARDENS COURT..................................................... 8

3 THE PROPOSED LAND AND RESOURCES TRIBUNAL.........................10

3.1 JURISDICTION OF THE TRIBUNAL............................................................10

3.1.1 Jurisdiction under the Mineral Resources Act 1989 and the FossickingAct 1994 ..............................................................................................11

3.1.2 Jurisdiction in relation to negotiated agreements...................................11

3.1.3 Jurisdiction under the Cultural Record (Landscape Queensland andQueensland Estate) 1987 (Qld).............................................................12

3.1.4 Jurisdiction conferred by other Acts .....................................................12

3.2 MEMBERSHIP OF THE TRIBUNAL ............................................................13

3.2.1 Presiding members ...............................................................................13

3.2.2 Non-presiding members........................................................................14

3.3 CONSTITUTION OF THE TRIBUNAL ..........................................................16

3.4 REGISTRARS ............................................................................................18

3.5 TRIBUNAL HEARINGS..............................................................................18

3.6 APPEALS FROM THE TRIBUNAL...............................................................19

4 MEDIATION...................................................................................................20

5 TRANSITIONAL PROVISIONS ...................................................................20

6 OTHER STATES ............................................................................................20

6.1 NORTHERN TERRITORY ..........................................................................21

6.2 WESTERN AUSTRALIA.............................................................................23

BIBLIOGRAPHY.............................................................................................. 27

APPENDIX A -EXECUTIVE SUMMARY, DISCUSSION PAPER ONADMINISTRATIVE PROCESSES AND FUNCTIONS OF THE WARDENSCOURT, FEBRUARY 1998. .............................................................................. 29

APPENDIX B - NEWSPAPER ARTICLES..................................................... 31

Land and Resources Tribunal Bill 1998 Page 1

DATE OF INTRODUCTION: 19 November 1998

PORTFOLIO: Premier and Cabinet

HANSARD REFERENCESECOND READING:

Weekly Hansard, 19 November,1998, p 3455.

1. INTRODUCTION

Under legislation passed in 1998, the Queensland Government has established astate based regime for dealing with mining activity affecting native title rights.1

Principally, the provisions were enacted pursuant to ss 43 and 43A of the NativeTitle Act 1993 (Cwlth). The Native Title Act 1993 (Cwlth) requires that an‘independent person or body’ be established under these regimes to hear anddetermine objections about proposed activity affecting native title rights andinterests.2 The amended Native Title Act 1993 (Cwlth) removes the right tonegotiate in relation to compulsory acquisitions for private developments andinfrastructure and allows for the grant of infrastructure titles, certain lease renewalsand compulsory acquisitions within towns and cities under a process of

1 Native Title (Queensland) State Provisions Amendment Act 1998 (No 2) (Qld); See

P Bartholomew, Native Title (Qld) State Provisions Amendment Bill (No2) 1998: A NewRegime For Mining Exploration and Development in Queensland on Land Affected By NativeTitle Interests, Legislation Bulletin No 8/98, Queensland Parliamentary Library, Brisbane,1998.

2 Native Title Act 1993 (Cwlth), ss 43(d)(f)(h)(i), ss 43A(e).

Land and Resources Tribunal Bill 1998

consultation.3 Native Title holders are given procedural rights of notification,objection and hearing by an ‘independent person or body’ created under s 24MD ofthe Native Title Act 1993 (Cwlth).4

The Land and Resources Tribunal Bill 1998 (Qld) (the L&RT Bill) establishes theLand and Resources Tribunal (the Tribunal) (L&RT Bill, clause 4) which will bethe ‘independent body’ to deal with objections to compulsory acquisitions of landaffected by native title interests as required under s 24MD(6B) of the Native TitleAct 1993 (Cwlth) in Queensland. It will also be the ‘independent body’ to hearobjections to proposed acts under the Queensland regimes set up under s 43 and43A of the Native Title Act 1993 (Cwlth). Consequently, the Tribunal is central tothe native title regime being established by the Queensland Government. On theintroduction of the L&RT Bill into the Queensland Parliament, the Honourable P DBeattie, Premier, stated that:

Without the legislation establishing the body to hear objections and determinecompensation, the State’s native title regime will not function at all.

This legislation creates the tribunal contemplated by the Native Title(Queensland) State Provisions Amendment (No 2) Act 1998 and is part of oursolution to fix the problem. The tribunal is known as the Land and ResourcesTribunal.5

Consistent with the intention of the Queensland Government to streamline landmanagement in Queensland, the proposed Tribunal will also be responsible forundertaking those functions in relations to mining activity, currently performed bythe Wardens Court.

2 BACKGROUND

2.1 NATIVE TITLE ISSUES

2.1.1 State/Territory ‘right to negotiate’ and ‘alternative provision’ regimes

The policy objectives of the Land and Resources Tribunal Bill 1998 (Qld) includethe establishment of a Land and Resources Tribunal to deal with ‘future acts’which may affect native title with respect to mining and to provide through the

3 Native Title Act 1993 (Cwlth), s 24MD.

4 Native Title Act 1993 (Cwlth), s 24MD(6B).

5 Hon P D Beattie, Premier, Land and Resources Tribunal Bill 1998 (Qld), Second ReadingSpeech, Weekly Hansard, No 12 1998, p 3456.


tribunal, an ‘independent person or body’ required under sections 43 and 43A of theNative Title Act 1993 (Cwlth).6

Section 43 Native Title Act 1993 (Cwlth) - ‘Right to Negotiate’ Regime

Section 43 of the Native Title Act 1993 (Cwlth) provides for a State or Territory toenact their own ‘right to negotiate’ provisions which can operate instead of the rightto negotiate provisions in Subdivision P of Native Title Act 1993 (Cwlth). The‘right to negotiate’ regime established by a State or Territory must reflect the rightto negotiate provisions of the Native Title Act 1993 (Cwlth).7 The State/Territoryprovisions must be approved by the Commonwealth Minister and, in making thedecision whether to approve the regime, the Commonwealth Minister must besatisfied that the provisions comply with the requirements in s 43(2) of the NativeTitle Act 1993 (Cwlth).8 Included in these requirements are that the State orTerritory ‘right to negotiate’ provisions:

• provide for mediation by a person or body to assist in settling any disputeamong the persons concerned regarding the relevant future act9;

• give registered native title bodies corporate and registered native titleclaimants the right to object against the act10;

• provide that the body determining the objection consists of or includes,persons enrolled for at least 5 years as legal practitioners of:

• the High Court; or

• another federal court; or

• the Supreme Court of a State or Territory.11

Section 43A Native Title Act 1993 (Cwlth) - ‘Alternative Provisions’ Regime

Section 43A of the Native Title Act 1993 (Cwlth) makes provision for a secondkind of State/Territory based regime as an alternative to the ‘right to negotiate’. AState/Territory based regime established pursuant to s 43A can only operate in

6 Land and Resources Tribunal Bill 1998 (Qld), Explanatory Notes, p 1.

7 Native Title Act 1993 (Cwlth), s 43; D Young, ‘The Right To Negotiate’, paper presented atthe AMPLA Native Title Seminar, Brisbane, 26 August 1998, p 12.

8 Native Title Act 1993 (Cwlth), s 43(1)(b).

9 Native Title Act 1993 (Cwlth), s 43(2)(c).

10 Native Title Act 1993 (Cwlth), s 43(2)(d).

11 Native Title Act 1993 (Cwlth), s 43(2)(f).


respect of certain types of land and waters, called ‘alternative provision areas’.12

These areas are mainly land and waters which were covered by a non-exclusive lease(for example a non-exclusive pastoral lease).13 Where a State or Territory haslegislated to establish a regime for ‘alternative provision areas’ there is arequirement to ‘consult’ about the minimisation of the impact on native title rights,rather than a requirement to ‘negotiate’ in good faith.14 There is also a requirementthat mediation be provided between the parties including the native title claimantsand/or native title bodies corporate.15 The Native Title Act 1993 (Cwlth) requiresthat objections to the act affecting native title rights in respect of the ‘alternateprovision area’ must be heard by an ‘independent person or body’. There areprocedural requirements concerning these objections, these requirements includethat:

• any claimant or body corporate be given the right to object, within aspecified period after notification, to the doing of an act so far as it affectstheir registered native title rights and interests. The objections are to beheard by an ‘independent person or body’16; and

• there be provision made for judicial review of the decision to do the act.17

2.1.2 Acts Passing the Freehold Test

The Native Title Act 1993 (Cwlth) provides that certain acts affecting native titlerights are valid if the effect of the act is to treat the holder of native title rights andinterests no less favourably than the holder of freehold title over the same land orwaters. The right to negotiate process does not apply to these acts.

12 Native Title Act 1993 (Cwlth), s 43A(2).

13 A ‘non-exclusive’ lease is one that does not confer exclusive possession on the holder of thelease or is not a scheduled interest in terms of s 249C Native Title Act 1993 (Cwlth). Simplyit is a lease over land or waters in respect of which native title rights and interests may stillexist: see Native Title Act 1993 (Cwlth) ss 247B, 248B.

14 Native Title Act 1993 (Cwlth), s 43A(4)(c) and (d).

15 A Registered Native Title Body Corporate is a body corporate that holds native title rightsand interest on trust and which is registered under the National Native Title Register underss 193 (2)(d) (iii) and (iv) Native Title Act 1993 (Cwlth). A Registered Native TitleClaimant is the person or persons who appear in the entry on the Register of Native TitleClaims as the applicant in relation to a claim to hold native title in relation to the land orwaters, see Native Title Act 1993 (Cwlth) s 253.

16 Native Title Act 1993 (Cwlth), s 43A(4)(b) and (e).

17 Native Title Act 1993 (Cwlth), s 43A(4)(f).


In detail, Part 2 Division 3 Subdivision M of the Native Title Act (Cwlth) providesthat legislation will be valid to the extent it relates to an onshore place if it affectsnative title areas in the same way as, or no less beneficially than, it affects freeholdareas. It also says that a non-legislative act can be done validly over native titleareas if that act could be done validly over freehold areas or if the act is the creationor variation of a right to mine for opals or gems.18 However, Subdivision Mapplies to non-legislative ‘future acts’ only where there is Commonwealth, State orTerritory legislation concerning the preservation or protection of areas or sites onthe relevant land or in the waters which are of particular significance to Aboriginalsor Torres Strait Islanders in accordance with Aboriginal or Islander tradition.19

Procedural Rights for Native Title Holders

Special procedural rights apply in respect of ‘future acts’ which pass the freeholdtest but which involve either:

• the compulsory acquisition of native title rights and interests for the purposeof conferring rights or interests on persons other than the Commonwealth,the State or the Territory to which the act is attributable; or

• the creation or variation of a right to mine for the sole purpose of theconstruction of an infrastructure facility associated with mining.

These procedural rights include:

• notification by the relevant government to any registered native titleclaimants and representative bodies;

• allowing such registered native title claimants and representative bodies twomonths after the notice is given to object to the act;

• consultation with the registered native title claimants or representativebodies about minimising the effect of the act. The other parties to theconsultation will be the government (in the case of a compulsory acquisitionor the grantee (in the case of a mining lease).

• a right for any registered native title claimant, or native title body corporate,to object to an ‘independent person or body’ about the future act that isproposed.20

18 Native Title Act 1993 (Cwlth), s 24MB(2).

19 Native Title Act 1993 (Cwlth), ss 24MB(1) and (2). The requirement, in relation to non-legislative acts, that there must be a law relating to the area that protects or preserves areas ofparticular significance to Aboriginals or Torres Strait Islanders, was introduced by the 1998amendments to the Native Title Act 1993 (Cwlth).

20 Native Title Act 1993 (Cwlth), s 24MD(6B).


The determination of that ‘independent person or body’ must be complied withunless:

• the Minister of the Commonwealth, the State or the Territory responsible forindigenous affairs is consulted; and

• the consultation is taken into account; and

• it is in the interests of the Commonwealth, the State or the Territory not tocomply with the determination.21

The proposed Queensland Land and Resources Tribunal will constitute this‘independent person or body’.

2.2 THE MINING WARDENS COURT

2.2.1 Jurisdiction of the Mining Wardens Court

The Wardens Court is established under the Mineral Resources Act 1989 (Qld).22

The substantive jurisdiction of the Wardens Court is set out in section 363 of theMineral Resources Act 1989 (Qld) and includes matters relating to mining andprospecting, including claims for personal injury arising out of mining activities.Principally, the Wardens Court deals with applications for mining leases andmining claims.23

Mining Leases

The Warden’s jurisdiction in relation to mining leases is found in Part 7 of theMineral Resources Act 1989 (Qld). The Warden hears applications for miningleases and makes recommendations on the grant of mining leases to the Minister. Ifan objection to an application for a mining lease is lodged, the Warden conducts ahearing. At the conclusion of the hearing, the Warden makes a recommendation tothe Minister about the grant or the acceptance of the mining lease. There is no rightof appeal against such recommendation.24

21 Native Title Act 1993 (Cwlth), s 24MD(6B)(g).

22 Mineral Resources Act 1989 (Qld), Part 10 Division 2.

23 See generally Queensland. Mining Warden. Submission to the Salaries and AllowancesTribunal by the Mining Warden Queensland, Draft Three, March 1996.

24 Mineral Resources Act (Qld), s 383(8).


Mining Claims -

Part 4 of the Mineral Resources Act 1989 (Qld) contains provisions concerning thejurisdiction of the Wardens Court in relation to mining claims. It is the Warden’sresponsibility to hear an application and to make a recommendation to the Ministerto grant or refuse a mining claim. The Warden conducts hearings where there is anobjection to the mining claim.25 Where a party is unsatisfied with the decision of theWarden there is provision for appeal to the District Court.26 The Mining Wardenalso has power to determine the amount of compensation paid by the applicant to anaffected landowner, in the event that the claim is granted.27

Compensation Claims

The Warden has jurisdiction to hear claims for compensation by the affectedlandowner when the parties cannot agree on the amount of compensation that is tobe paid. Appeals from these decisions are to the Land Court. The Wardens Courtacts as a court of review against direction or requirement given or made by certainofficers of the Department.28

Other Roles

Other roles performed by the Wardens Court include acting as an arbitral bodypursuant to the Native Title (Queensland) Act 1993 (Qld) to hear claims forcompensation for mining leases29 and conducting inquiries into deaths or injuriesoccurring as a result of mining related accidents.30

2.2.2 Appointment of Wardens and the Constitution of the Mining WardensCourt

The Wardens Court consists of one Warden, a Stipendiary Magistrate, sitting alone.The Governor in Council may appoint Wardens as necessary for carrying out the

25 Mineral Resources Act 1989 (Qld), ss 72, 77.

26 Mineral Resources Act 1989 (Qld), s 383.

27 See Mineral Resources Act 1989 (Qld), s 85(7).

28 See Mineral Resources Act 1989 (Qld), ss 38, 116 and 406.

29 Native Title (Queensland) Act 1993 (Qld), Part 5.

30 Coal Mining Act 1925 (Qld), s 74; Mines Regulations Act 1961 (Qld), s 42.


business of the Wardens Court.31 The Warden must be a lawyer of at least 5 yearsstanding. The Governor in Council may also appoint anyone qualified to beappointed as a Warden to be an Acting Warden. When the Mineral Resources Act1989 (Qld) was proclaimed in 1990, two Wardens were appointed: a NorthernWarden who undertook duties in the Districts of Cairns and Mareeba; and aSouthern Warden who undertook duties in other areas.32 There is currently oneWarden.

2.2.3 Hearings

Mining lease applications are administrative inquiries. The purpose of theseinquiries is to gather information upon which to base a recommendation to theMinister.33 The Wardens Court is able to take evidence as it considers appropriateand is not bound by the rules of evidence when hearing an application.34 However,in compensation hearings, the rules of evidence do apply. Further, in proceedingswhere the Wardens Court is exercising a penal jurisdiction, including where it ishearing proceedings involving offences against the Mineral Resources Act 1989(Qld), the rules of evidence and the criminal standard of proof apply. The WardensCourt can order costs against a party to a proceeding at its discretion. For example,costs could be awarded where a party withdraws an application at a late stage, orwhere the application is determined by the warden to be frivolous or vexatious.

2.3 THE 1998 DISCUSSION PAPER ON THE ADMINISTRATIVE

PROCESSES AND FUNCTIONS OF THE WARDENS COURT

A review of the Warden’s Court was set up in May 1997 to consider issues arisingfrom concerns of landowners, landowner groups and other interested parties aboutthe process and functions of the Wardens Court.35 After this review of the

31 Mineral Resources Act 1989 (Qld), s 345.

32 Queensland. Mining Warden. Submission to the salaries and Allowances Tribunal by theMining Warden Queensland, Draft Three, March 1996, p 6.

33 Queensland. Government. Department of Mines and Energy, Resource DevelopmentDivision, Review of the Administrative Processes and Functions of the Warden’s Court, July1997, p 10.

34 Mineral Resources Act 1989 (Qld), s 268(3).

35 Queensland. Government. Department of Mines and Energy, Resource DevelopmentDivision, Review of the Administrative Processes and Functions of the Warden’s Court, July1997.


operation of the Wardens Court by officers of the Department of Mines and Energy,a Discussion Paper on Administrative Processes and Functions of the WardensCourt (the 1998 Discussion Paper) was released in February 1998.36 The ExecutiveSummary from the 1988 Discussion Paper is contained at Appendix A to thisBulletin.

Some of the issues dealt with in the 1988 Discussion Paper concerned theconstitution of the Mining Wardens Court. It was noted that there was concernamong stakeholders that a Warden alone cannot be expected to have the breadthand depth of technical knowledge necessary to make informed assessments oncomplex matters in dispute related to mining and the management of environmentalimpacts set out in an Environmental Management and Overview Strategy(EMOS).37 It was suggested that where the Wardens Court hearing involvedcomplex technical issues that the Warden should be able to call on the technicalexpertise of persons drawn from a panel of experts.

Included in the proposals in the 1988 Discussion Paper was that a Tribunal shouldbe constituted to replace the Wardens Court. It was proposed that such Tribunalwould be constituted by a Chairperson sitting alone or assisted by one or more‘reviewer’. The 1998 Discussion Paper proposed that the Chairperson be a lawyerof at least 5 years standing and that all inquires into mining lease applications be inpublic. It was proposed that the Tribunal be assisted by ‘reviewers’ selected by theChairperson from a reference panel.38 It also proposed that the Directors-General(or delegates) from relevant Government agencies would be asked to agree on apanel of ‘experts’ available to the Wardens Court who could be selected by theWarden in each case, on the basis of recognised experience and qualification, toreview expert evidence offered in respect of the specific issues referred to the Courtfor hearing.39

The 1988 Discussion Paper suggested compulsory rather than discretionary pre-hearing conferences. A number of benefits of compulsory pre-hearing conferenceswere identified including the opportunity for simplification and identification ofissues and the chance to reach consensus on issues before a hearing, withconsequential time and money savings.40

36 Queensland. Government. Department of Mines and Energy, Discussion Paper on

Administrative Processes and Functions of the Wardens Court, Brisbane, February 1998.

37 Discussion Paper on Administrative Processes and Functions of the Wardens Court, p 8.

38 Discussion Paper on Administrative Processes and Functions of the Wardens Court, pp 8-9.


40 Discussion Paper on Administrative Processes and Functions of the Wardens Court, pp 6-7.


The 1988 Discussion Paper recognised that while rules were necessary to ensurethat parties present relevant evidence and arguments, the Wardens inquiry should beconducted with a minimum of formality. It found that, although the Warden wasnot bound to apply the rules of evidence in applications for the grant of a mininglease, the Warden chose to apply these rules in nearly all circumstances. The 1998Discussion Paper proposed that a simpler set of rules, more relevant to the WardensCourt, would achieve time and cost savings.41 It was also suggested that rules couldbe formulated to regulate how the Warden conducted hearing of a mining leaseapplication with the aim of minimising the adversarial nature of the hearing.42

3 THE PROPOSED LAND AND RESOURCES TRIBUNAL

3.1 JURISDICTION OF THE TRIBUNAL

The Tribunal is proposed to have jurisdiction as follows:

• under the Mineral Resources Act 1989 (Qld), the Fossicking Act 1994 (Qld)the same as the present ‘Wardens Court’ (L & RT Bill, Schedule 3);

• to decide a dispute arising under a negotiated agreement, to hear anapplication for the enforcement of a negotiated agreement and to make adeclaration about the interpretation of a negotiated agreement (L&RT Bill,clause 52);

• to hear application by a group of Aborigines or Torres Strait Islanders for aninjunction to prevent the doing of an act that would be a contravention ofs 56 of the Cultural Record (Landscapes Queensland and QueenslandEstate) Act 1987 (Qld) or another Act that provides for the protection,preservation of or access to items, places or areas of cultural significance toAboriginal people or Torres Strait Islanders (L&RT Bill, clause 53).

• jurisdiction conferred on it by other legislation. This will include

• those functions required by the Native Title (Queensland) StateProvisions Amendment Act (No 2) 1998 (Qld) relating to the alternativeState provisions contained in the Mineral Resources Act 1989 (Qld) andthe Fossicking Act 1994 (Qld); and

• the recipient of a future jurisdiction for those future Acts which will belegislated for in 1999 including certain compulsory acquisitions of nativetitle rights and interests.43



43 Land and Resources Tribunal Bill 1998 (Qld), Second Reading Speech, p 3458.


These proposals are discussed briefly below.

3.1.1 Jurisdiction under the Mineral Resources Act 1989 and the FossickingAct 1994

This jurisdiction will be broadly the same as the jurisdiction of the current MiningWardens Court.

The Bill proposes to amend the Fossicking Act 1994 (Qld) to provide that appealsconcerning the refusal of licences and permits under the Fossicking Act 1994 (Qld)which are currently made to the Warden’s Court, will be to the Tribunal (L&RTBill, Schedule 3). An appeal will be started by filing a written notice of appeal withthe Mining Registrar44 for the mining district to which the licence or permit appliedfor relates (L&RT Bill Schedule 3, Fossicking Act 1994, clause 13, newproposed s 100, Fossicking Act 1994). Under the proposed amendments there isno provision for an appeal from the Tribunal to the District Court on a question oflaw, as there currently is to the Wardens Court (L&RT Bill Schedule 3,Fossicking Act 1994, clause 18).45

Unlike the Wardens Court, the Tribunal will not have a penal jurisdiction. Toexplain, proceedings for offences committed under the Fossicking Act 1994 (Qld),which were previously able to be started in the Wardens Court, will now proceed byway of complaint and summons under the Justices Act 1886 (Qld). Similarly,proceedings for offences against the Mineral Resources Act 1989 (Qld) will proceedby complaint and summons under the Justices Act 1886 (Qld) rather than beingheard in the Wardens Court (L&RT Bill, Schedule 3, new proposed s 412(2)Mineral Resources Act 1989 (Qld)).

3.1.2 Jurisdiction in relation to negotiated agreements

Negotiated agreements are agreements made pursuant to certain Native Titleprovisions in the Mineral Resources Act 1989 (Qld) (MRA). These agreements areset out in Schedule 2 of the L &RT Bill. They are:

• a consultation agreement under Part 14 of the MRA;

• an agreement about an exploration permit under ss 496 or 497 MRA;

44 For a definition of mining registrar see Mineral Resources Act 1989 (Qld), s 5.

45 Fossicking Act 1994 (Qld), s 104.


• an agreement about a mineral development licence under ss 542 or 543MRA;

• a consultation agreement in relation to mining leases for surface alluvium(gold or tin) under Part 17 Division 2 MRA;

• • a negotiated agreement for mining on alternative provision areas underPart 17 Division 34 MRA;

• • a negotiated agreement for mining on other than alternative provision areasunder Part 17 Division 4 MRA;

• an agreement about payment of compensation mentioned in s 653 MRA.

The Tribunal has exclusive jurisdictions for deciding disputes that arise under thesenegotiated agreements in relation to:

• the enforcement of a negotiated agreement;

• a dispute arising under a negotiated agreement;

• the interpretation of a negotiated agreement (L&RT Bill, clause 52(1)).

3.1.3 Jurisdiction under the Cultural Record (Landscape Queensland andQueensland Estate) 1987 (Qld)

The Tribunal will have exclusive jurisdiction to hear applications by Aboriginals orTorres Strait Islanders for injunctions to prevent the doing of certain acts being:

• acts that would constitute an offence under s 56 of the Cultural Record(Landscapes Queensland and Queensland Estate) Act 1987 (Qld); or

• acts that contravene a provision of another Act providing for the protectionof, preservation of, or access to items, places or areas of cultural significanceto Aboriginal people or Torres Strait Islanders (L&RT Bill, clause 53).

Aboriginals or Torres Strait Islanders, as individuals or as part of a group, will beable to apply to the Tribunal for such injunctions where they have a ‘traditional,historic or custodial interest in the item, place or area that may be adverselyaffected by the doing of the act about which the application is made’ (L&RT Bill,s 53).

3.1.4 Jurisdiction conferred by other Acts

The Tribunal will constitute the ‘independent body’ for the purposes of complyingwith s 43 and s 43A of the Native Title Act 1993 (Cwlth) (see Part 2.1.1 of thisBulletin). State based regimes pursuant to s 43 and 43A are now provided for inthe Mineral Resources Act 1989 (Qld) as amended by the Native Title (Queensland)State Provisions Act (No 2) 1998 (Qld). The Mineral Resources Act 1989 (Qld)


provides that the proposed Land and Resources Tribunal is the body to deal withobjections to proposed acts under these regimes.46

It is anticipated that forthcoming legislation will provide that the Tribunal be the‘independent body’ to hear objections to compulsory acquisitions of land affectedby native title rights and interests in accordance with the requirements of s 24MD(6B) Native Title Act 1993 (Qld).47

3.2 MEMBERSHIP OF THE TRIBUNAL

The need for the Tribunal to have the breadth of expertise necessary to deal withmining and native title issues has been recognised. At the time of the introductionof the Bill, the Premier stated that:

It is important that the new tribunal is seen to have appropriate expertise. Forthat reason, the president of the tribunal is a position equivalent in work andsalary to a Supreme Court judge.…The president will be assisted by a minimumof two persons equivalent to District Court judges.48

The Tribunal will have both presiding and non-presiding members (L&RT BillClause 6). Members of the Tribunal must not hold, or be entitled, directly orindirectly, to the benefits of an interest in a mining tenure (L&RT Bill, clause26(1)).

3.2.1 Presiding members

Presiding members of the Tribunal are responsible for deciding on questions beforethe Tribunal (L&RT Bill, clause 41(2)).

The presiding members will be:

• the president; and

• 2 or more deputy presidents.

46 See for example, Mineral Resources Act 1989 (Qld) as amended by the Native Title (State

Provisions) Amendment Act (No.2) 1998 (Qld), ss 5, Part 15, Division 3, Subdivision 4; Part16 Division 3 Subdivision 4; Part 17 Division 3 Subdivision 4.

47 Information supplied by departmental officer, Native Title Services, Department of thePremier and Cabinet (Queensland), 16 January 1999.



To be eligible to be a presiding member a person must:

• be eligible for appointment as a Supreme Court judge ie a barrister orsolicitor of the court of at least 5 years standing;49

• have, in the opinion of the Governor in Council, particular knowledge orexperience of indigenous issues; and

• knowledge of one or more of the following: mining or petroleum issues; landissues or something else considered by the Governor in Council to havesubstantial relevance to the duties of a presiding member (L&RT Bill,clause 8).

The Governor in Council is required, as far as practicable, to ensure that at least oneof the presiding members holding office at any one time has particular knowledge orexperience of mining and petroleum issues (L&RT Bill, clause 8(2)).

3.2.2 Non-presiding members

The non-presiding members on a panel do not decide on the questions before theTribunal. The role of the non-presiding members on a panel is:

• to advise the presiding member or presiding members about matters within his orher knowledge or experience that are relevant to a question;

• to help the presiding members in the conduct of the proceeding in a way thepresiding members consider appropriate (L&RT Bill, clause 41(4)).

There are four categories of non-presiding member:-

• a Land Court non-presiding member;

• a Land Tribunal non-presiding member;

• an appointed non-presiding member;

• a referee non-presiding member (L&RT Bill, clause 15(1)).

Land Court non-presiding members and Land Tribunal non-presiding members

A person is a Land Court non-presiding member if that person is a member ofthe Land Court (L&RT Clause 15(2)). A person is a Land Tribunal nonpresiding member if the person is a member of the Land Tribunal (L&RT Clause15(3)). A Land Court non-presiding member and a Land tribunal non-presidingmember stop holding that office, if the member ceases to be a member of the Land

49 Supreme Court of Queensland Act 1991 (Qld), s 12.


Court or the Land Tribunal respectively (L&RT Bill, clauses 20(1) and (2)). Theinclusion of members of the Land Court and the Land Tribunal as non-presidingmembers of the Tribunal will give the Tribunal access to a significant body ofexperience in carrying out its functions.50

Appointed non-presiding members

Appointed non-presiding members are to be appointed by the Governor inCouncil (L&RT Bill, clause 16(1)). An appointed non-presiding member may beappointed for terms of up to 5 years (L&RT Bill, clause 22(2)). Persons will onlybe eligible for appointment as a non-presiding member if they satisfy the criteriaproposed in clause 17. The eligibility criteria include that a person has either:

• at least 5 years experience at a high level in industry, commerce, publicadministration, industrial relations, the practice of a profession of the serviceof a government or an authority of a government; or

• has in the opinion of the Governor in Council, particular knowledge orexpertise in at least two of the areas set out in clause 17(1)(b). These areasinclude:

• knowledge of Aboriginal or Torres Strait Islander communities (clause 17(1)(b)(i));

• dispute resolution (L&RT Bill, clause 17(1)(b)(ii));

• mining or petroleum issues (L&RT Bill, clause 17(1)(b)(iv));

• indigenous issues (L&RT Bill, clause 17(1)(b)(vi)); and

• native title issues (L&RT Bill, clause 17 (1)(b)(x)).

Referee non-presiding members

The Bill provides for the appointment of referee non-presiding members(referees) to a panel to assist the presiding members. In the Second ReadingSpeech, the Premier noted that:

There will be three officers appointed to five-year terms, known as referees of thetribunal, but they will not have the power to vote. These positions are essentiallyadvisory to the work of the presiding members. They will assist in outcomes andthey will assist in making this process work. They will be filled by eminentlyqualified people, but will not have voting rights on the tribunal.51

50 Land and Resources Tribunal Bill 1998, Explanatory Notes, p 2.



A referee can be appointed as:

• a mining referee;

• a mediation referee; or

• an indigenous issues referee.

There are additional separate eligibility criteria for each of these three categories ofreferee non-presiding members set out in clause 18. These eligibility criteria willhelp to ensure that each non-presiding referee has the necessary experience to dealwith the types of issues the member is required to deal with. For example, theeligibility criteria for an indigenous issues referee include that the person has:

• At least 5 years experience in industry, commerce, public administration, theservice of a government or an authority of a government;

• has researched and published in journals in the fields of anthropology,history, law, public administration or indigenous issues; and

• a high degree of knowledge or experience in at least two of the followingareas:

• cross cultural issues;

• resolving cultural heritage issues;

• indigenous issues;

• something else considered by the Governor in Council to havesubstantial relevance to the duties of an indigenous issues referee(L&RT Bill, clause 18(3)(b)).

The eligibility criteria for appointment as a mediation referee includes that theperson must, have a high degree of experience in at least 2 of the following areas:

• dispute resolution;

• mediation;

• land title and land use issues;

• something else considered by the Governor in Council to have substantialrelevance to the duties of a mediation referee (L&RT Bill, clause 18(2)(b)).

A mining referee must have mining industry knowledge and experience, knowledgeof land title and land use issues (L&RT Bill, clause 18(1)). Both the mining refereeand the mediation referee must be eligible for appointment as a Supreme CourtJudge.


3.3 CONSTITUTION OF THE TRIBUNAL

For a proceeding, the Tribunal is constituted by either a single member or a panel(L&RT Bill, clause 39(1)).

A single member constituting the Tribunal is to be:-

• a presiding member, or a presiding member assisted by a single non-presiding member; or

• a Land Court non-presiding member; or

• a referee non-presiding member who has been appointed as a miningreferee.

A panel constituting a Tribunal could be formed in a number of ways as set out inclause 39(2). All panels must have at least one presiding member and 2 non-presiding members.

There are two broad types of panel, a ‘standard panel’ and an ‘NNTT panel’. An‘NNTT panel’ will always comprise a member who is also a member of the NNTT.There is provision for a NNTT member, who is not a member of the tribunal, to sittogether with Tribunal members who would otherwise constitute a standard panel,to form an ‘NNTT panel’ (L&RT Bill, clause 39(2)(d)).

The President of the Tribunal directs how the Tribunal is to be constituted for aparticular proceeding and in giving such direction the president must have regard to:

• the degree of public importance or complexity of the proceeding; and

• the need for the tribunal’s affairs to be conducted promptly and efficiently;and

• • the nature of the issues likely to be involved in the proceedings (L&RT Bill,clause 39 (4)). This would include whether native title is an issue.

If the proposed L&RT Act, or any other Act, specifies how the Tribunal is to beconstituted for a particular proceeding, then the President must ensure that theTribunal is constituted accordingly. For example, Schedule 1 of the L&RT Billcontains requirements for the constitution of the Tribunal for certain applicationsunder the Fossicking Act 1994 (Qld) and the Mineral Resources Act 1989 (Qld). Ingiving a direction as to how the Tribunal is to be constituted, the President mustensure the Tribunal is constituted in accordance with the requirements of Schedule1 and any requirements of the Bill (L&RT Bill, clause 40(1)). For all appeals tothe Tribunal under the Fossicking Act 1994 (Qld), the Tribunal is to be constitutedby a mining referee (L&RT Bill, Schedule 1).


Schedule 1 to the L&RT Bill also sets out requirements for the constitution of theTribunal for proceedings brought under the Mineral Resources Act 1989 (Qld)including applications concerning prospecting permits, exploration permits, mineraldevelopment licences, mining leases, and interim preservation of property or thingsby remote means, and compensation.

Where there is no native title issue the Tribunal can consist of the mining refereealone sitting as a single-member panel or as presiding member and one or more non-presiding members sitting as a multiple-member panel.

3.4 REGISTRARS

Part 3 of the Bill provides for the registrars and deputy registrar of the Tribunal.They are either members of staff of the Tribunal or, in the case of a deputy registrar(additional office), may be appointed by the Governor in Council if it would be‘… convenient or appropriate…’ for the administration of the proposed Act(L&RT Bill, clause 34).

A Registrar must:

• be a lawyer; and

• have a particular knowledge and experience of:

• public administration; or

• something else with substantial relevance to the duties of a registrar(L&RT Bill, clause 77(3)).

The Registrar will have the power to engage consultants to perform services for theTribunal (L&RT, clause 31).

3.5 TRIBUNAL HEARINGS

There is currently no reference in the Mineral Resources Act 1989 (Qld) to thequestion whether or not the Wardens Court is bound by the rules of natural justice.The issue of natural justice has been the subject of application for judicial reviewand appeals to the Court of Appeal by landowners affected by decisions of theMining Wardens Court.52 In reference to whether the Wardens Court is bound bythe rules of natural justice, the Queensland Court of Appeal has noted that

52 Wall v Windridge, Gilmore & South Blackwater Coal Ltd,, Court of Appeal, Supreme Court of

Queensland, Appeal No 4615 of 1997, 11 November 1997 per Pincus JA, Moynihan J,Ambrose J.


‘…ordinarily one would expect it to be so bound.’53 The L&RT Bill provides thatwhen hearing applications, the Tribunal must observe the rules of Natural Justice(L&RT, clause 49). The hearings are to be open to the public unless the Tribunaldetermines otherwise on the grounds that to hold a closed hearing would either:

• be in the interests of justice; or

• allow culturally sensitive issues to be appropriately dealt with (L&RT Bill,clause 48).

This will allow the Tribunal to give proper respect to Aboriginal and Islandertradition in matters involving questions of native title rights where issues concerningthe rights are traditionally only known to certain Aboriginals or Islanders.

For the purposes of exercising its jurisdiction the Tribunal has all the powers of theSupreme Court and the practice and procedure of the tribunal in exercising itsjurisdiction must as far as practicable be the same as the practice and procedure ofthe Supreme Court (L&RT Bill, clause 65(5)). Included in its powers is the powerto suppress from the public a record of, or information about, a proceeding beforethe Tribunal (L&RT Bill, clause 65(3)). In deciding whether to make such arecord or information available to the public the Tribunal may include in itsconsideration regard to Aboriginal tradition and Island custom (L&RT Bill, clause65(4)).

Generally each party to a proceeding before the Tribunal would bear their own costsfor the proceeding. However the Tribunal has power to award costs in specialcircumstances which it considers appropriate, such as if the proceeding, or part ofthe proceeding, has been frivolous or vexatious (L&RT Tribunal, clause 50).

3.6 APPEALS FROM THE TRIBUNAL

Appeals from the Tribunal are on questions of law only (L&RT Bill, clause 67(1)).There are two avenues of appeal depending on the constitution of the Tribunal atfirst instance:

• if the Tribunal is constituted by a Land Court non-presiding member or amining referee then the appeal is, with leave, to the Tribunal as constitutedby the President of the Tribunal alone; or

• if the Tribunal is constituted by a panel or the President sitting alone, thenthe Appeal is to the Court of Appeal (L&RT Bill, clause 67(2)).

53 Wall v Windridge Gilmore & South Blackwater Coal Ltd, Court of Appeal, Supreme Court of

Queensland, Appeal No 4615 of 1997, 11 November 1997, per Pincus J A, p 3.


On appeal the appellate body may

• dismiss the appeal;

• set aside the decision appealed against and substitute another decision;

• amend the decision appealed against;

• suspend the operation of the decision appealed against and remit theproceeding to the Tribunal to act according to law (L&RT Bill, clause67(3)).

4 MEDIATION

The 1998 amendments to the Mineral Resources Act 1989 (Qld) establishing thess 43 and 43A regimes for dealing with native title and mining issues provide formediation in the application process for mining leases, mining claims, explorationpermits, prospecting permits and mineral development licences. This mediation canbe conducted by the Tribunal. Any agreement reached at a mediation conducted bythe Tribunal must be formalised in writing and signed by each participant (L&RT,clause 72). Evidence of anything said or done at a mediation is not admissible inany proceeding without the agreement of all participants (L&RT Bill, clause 75).It is an offence for a mediator to disclose matters coming into their knowledgeduring a mediation unless the mediator has a reasonable excuse for the disclosure(L&RT, clause 73).

5 TRANSITIONAL PROVISIONS

The Tribunal has jurisdiction to finish any proceedings brought in the WardensCourt under the Mineral Resources Act 1989 (Qld) and the Fossicking Act 1994(Qld) which have not finished at the time of the commencement of the proposed Act(L&RT Bill, clause 83(1)). In these circumstances the Tribunal can deal with theproceeding as if it had been started under the proposed Act ( L&RT Bill, clause83(2)).

A person who is a warden under the Mineral Resources Act 1989 (Qld) at the timeimmediately before the commencement of the proposed s 84 will, uponcommencement of that section, become a referee non-presiding member and moreparticularly, will be a mining referee (L&RT Bill, clauses 84(1) and (2)).


6 OTHER STATES

The Northern Territory and Western Australia have taken steps to introduceState/Territory-based regimes for dealing with mining and native title issues. TheNorthern Territory has passed legislation establishing an ‘alternative provisions’regime pursuant to s 43A of the Native Title Act 1993 (Cwlth) and establishing abody, the Land and Mining Tribunal, to deal with these mining and native titleissues.

In Western Australia legislation was introduced into the Legislative Assembly inOctober 1998 that included the establishment of a Native Title Commission. Itwas proposed that the Native Title Commission would take over the functions ofthe NNTT in Western Australia as well as acting as the ‘independent body’ for aproposed state-based regime dealing with native title. However, this legislation hasnow been laid aside (23 December 1998) after the Court Government refused toaccept amendments by the Western Australian Legislative Council made to thepackage of legislation which would have enabled native title rights and interests toco-exist with some mining and pastoral leases.

The Northern Territory Lands and Mining Tribunal and the proposed WesternAustralian body, the Native Title Commission, are discussed briefly below.

6.1 NORTHERN TERRITORY

The Lands and Mining Tribunal Act 1998 (NT) was passed by the NorthernTerritory Parliament as part of a package of legislation to allow the NorthernTerritory to take advantage of certain provisions of the amendments to the NativeTitle Act 1993 (Cwlth), in particular, the provisions relating to the establishment of‘alternative provisions’ under s 43A of the Native Title Act 1993 (Cwlth). As thereis little Vacant Crown Land outside of towns in the Northern Territory it isanticipated that most future acts will either fall within ‘alternate provision areas’ orattract procedures that apply to town land.54 The Mining Amendment Act 1998(NT), the Petroleum Amendment Act 1998 (NT) and the Energy PipelinesAmendment Act 1998 (NT) amend the laws in the Northern Territory for the grantof land or mining interests, so that these processes comply with s 43A of the NativeTitle Act 1993 (Cwlth) requirements, if there is a possibility that native title may be

54 Tim Joyce, Assistant Secretary, Department of Chief Minister (NT), ‘State Government - The

New Role - Northern Territory Government’, paper presented at the ‘Living With Wik’conference, Sydney, November 1998, p 3.


affected by a proposal.55 The Lands Acquisition Amendment Act 1998 (No 2) (NT),made the necessary changes to accommodate the requirements of the amendedNative Title Act 1993 (Cwlth) including the procedural requirements ofs 24MD(6B).

The Lands and Mining Tribunal Act 1998 (NT) establishes the Lands and MiningTribunal as the ‘independent body’, required by s 43A of the Native Title Act 1993(Cwlth), to hear objections regarding proposed grants of interests or titles under theland, mining, petroleum or energy pipeline acts and to determine compensationapplications. It will also be the ‘independent body’ required under s 24MD(6B) tohear objections to and determine disputes about compensation referred to it underthe Lands Aquisition Act (NT).56 These and other functions of the Lands andMining Tribunal are set out in s 5 of the Lands and Mining Tribunal Act 1998(NT).

The Lands and Mining Tribunal is to consist of a Chairperson and at least 3 otherfull-time members who must be legal practitioners of at least five years standing.57

Members of the Tribunal are appointed by the Administrator.58 The Lands andMining Tribunal may engage consultants with appropriate expertise to assist it inrelation to proceedings.59 The Chairperson must appoint a panel of persons who arewilling to act as mediators.60 The Chairperson chooses a mediator from this panel toconduct mediations which have been referred to the Lands and Mining Tribunal

Proceedings in the Lands and Mining Tribunal are to be conducted with as littleformality as the nature of the matter permits.61 As with the proposed Land andResources Tribunal in Queensland, the Lands and Mining Tribunal is expressly

55 Mr Stone, Attorney-General, Northern Territory, Lands Acquisition Amendment Bill (No 2)

1998 (NT); Lands And Mining Tribunal Bill 1998 (NT); Mining Amendment Bill 1998 (NT);Petroleum Amendment Bill 1998 (NT); Petroleum (Submerged Lands) Amendment Bill 1998(NT); Validation Of Titles And Actions Amendment Bill 1998 (NT) and Energy PipelinesAmendment Bill 1998 (NT), Second Reading Speech, Northern Territory of Australia,Legislative Assembly, Parliamentary Record No. 11, Eighth Assembly First Session, 11/8/98,p 1777.

56 Lands Aquisition Act (NT), s 5A, Part VIII.

57 Lands and Mining Tribunal Act 1998 (NT), ss 28, 29(3).

58 Lands and Mining Tribunal Act 1988 (NT), s 28.


60 Lands and Mining Tribunal Act 1998 (NT), s 36(3).



bound by the rules of natural justice.62 There is provision for the making of rulesabout the practice and procedure of the Land and Mining Tribunal, however if nosuch rules are made then the practice and procedure is determined by the Tribunalitself.63 The Chairperson of the Tribunal has power to make rules relating to thepractice and procedure of the Tribunal and to prescribe fees in respect of theTribunal.64 Subject to the Tribunal ordering otherwise, the Land and MiningTribunal’s hearings are to be in public.65

6.2 WESTERN AUSTRALIA

The Western Australian State Government considered that native title should bedealt with as part of ‘ …the normal land and resource management process’.66 InOctober 1998, three Bills were introduced into the Western Australia StateParliament which aimed to put in place a comprehensive native title regime to beadministered by a state Native Title Commission (the Commission).67 Theproposed legislative package would have established the Commission withresponsibility for the administration of native titles claims in Western Australia,registering indigenous land use agreements68 and the administrative anddeterminative powers to deal with objections by native title parties to future land,mining and petroleum grants by the Western Australian State Government.69




65 Land and Mining Tribunal Act 1998 (NT), s 13.

66 Mr Prince, Minister for Police (WA). Native Title (State Provisions) Bill (WA), SecondReading Speech, Western Australian Legislative Assembly, Parliamentary Debates, 15October 1998, p 2184.

67 Native Title (State Provisions) Bill (WA), Second Reading Speech, p 2184.

68 Part 8A of the Native Title Act 1993 (Cwlth) provides for the Native Title Registrar to registerindigenous land use agreements. Section 199F of the Native Title Act 1993 (Cwlth) enablesthe registrar to delegate his powers in relation to Part 8A of the Native Title Act 1993 (Cwlth)and in relation to Subdivisions B, C or D of Division 3 of part 2 (which also deals withindigenous land use agreements) to the holder of an office, or to a body, established by orunder a law of a State or Territory, if the State or Territory agrees to the delegation.

69 Native Title (State Provisions) Bill (WA), Part 7. Native Title (State Provisions) Bill (WA),Second Reading Speech, p 2184.


Parts 3 and 4 of the Native Title (State Provisions) Bill 1998 (WA), proposedestablishing a regime of ‘alternative provisions’ pursuant to s 43A of the NativeTitle Act (Cwlth) and alternative ‘right to negotiate’ regime for future acts pursuantto s 43 of the Native Title Act 1993 (Cwlth). Part 5 of the Native Title (StateProvisions) Bill 1988 (WA) proposed a regime for the operation of s 24MD(6B) ofthe Native Title Act 1993 (Cwlth) dealing with certain permissible lease etc renewal,compulsory acquisitions wholly within a town or city or for infrastructure purposes,and the creation or variation of a right to mine for infrastructure associated withmining.70

The proposed Native Title Commission was to comprise a full-time ChiefCommissioner and other full-time and part-time commissioners.71 It was proposedthat other members who were either legal practitioners of 5 years standing or whohad knowledge of land and resource management, dispute resolution, mattersrelating to Aboriginal peoples or another matter ‘substantially relevant’ to the dutyof a member could be appointed to the Native Title Commission.72 At least one ofthe ordinary members was a member or the NNTT.73 The Chief Commissionerwould determine which members sit particular cases.74 The administrative functionsof the commission would be carried out by staff under the direction of an executivedirector.

The Native Title (State Provisions) Bill 1998 (WA) provided that the proposedNative Title Commission was to have functions including:

• performing the role of an ‘independent body’ to deal with objections toproposed future acts in these areas;75

• performing the functions of the National Native Title Tribunal (the NNTT)in Western Australia by fulfilling the role of an ‘equivilent body’ inaccordance with s 207B of the Native Title 1993 (Cwlth);76

70 Native Title (State Provisions) Bill 1998 (WA), Part 5.

71 Native Title (State provisions) Bill 1998 (WA), cl 7.4.

72 Native Title (State Provisions) Bill 1998 (WA), cl 7.7.

73 Native Title (State Provisions) Bill 1998 (WA), cl 7.6(2); see also s 207B(4) Native Title Act1993 (Cwlth).


75 Native Title (State Provisions) Bill 1998 (WA), cl 7.2; Part 3 Division 5; Part 4 Division 5Subdivision 2.

76 Part 12A of the Native Title Act 1993 (Cwlth) provides that a State or Territory Minister maynominate to the Commonwealth Minister one or more offices, tribunals or bodies (each ofwhich is an equivalent body), established by or under a law of the State or Territory, for


• accepting a delegation from the Registrar of the NNTT pursuant to s 199Fof the Native Title Act 1993 (Cwlth) regarding the registration ofIndigenous Land Use Agreements;77

• performing the functions of an ‘independent body’ as required by section24MD(6B)(f) of the Native Title Act 1993 (Cwlth) hearing and determiningobjections in relation to the creation of a right to mine for the purposes ofconstructing certain infrastructure facilities and compulsory acquisitions ofnative title rights and interests for purposes of conferring rights or interestson third parties.

• to determine compensation for future acts done other than compulsoryacquisitions which are already dealt with in the Land Administration Act(WA).

The Bill provided that the Commission may take account of cultural and customaryconcerns of Aboriginal peoples, but not so as to unduly prejudice a party toproceedings.78 The Commission, either on its own motion, or at the request of oneparty, may refer a question of law to the Supreme Court for determination.79

Effectively, the proposed Native Title Commission would take over the role of theNational Native Title Tribunal in Western Australia.

The Bills were laid aside on 23 December 1998, after the Court government refusedto accept amendments made by the Legislative Council.

purposes of each performing specified functions or exercising specified powers of the NNTTor the Native Title Registrar: see ss 207A and 207B Native Title Act 1993 (Cwlth).

77 Section 199F of the Native Title Act 1993 (Cwlth) enables the Registrar of the NNTT todelegate all or any of his or her powers in relation to Indigenous Land Use Agreements, as setout in Part 8A and Subdivisions B, C and D of Division 3 of Part 2 of the Native Title Act1993 (Cwlth), to the holder of an office, or to a body, established by or under a law of a Stateof Territory which agrees to such delegation.

78 Native Title (State Provisions) Bill 1998 (WA), cl 7.3(2).



BIBLIOGRAPHY

Monographs

• Queensland. Government. Department of Mines and Energy, ResourceDevelopment Division, Review of the Administrative Processes and Functions ofthe Warden’s Court, July 1997.

• Queensland. Government. Department of Mines and Energy, Discussion Paperon Administrative Processes and Functions of the Wardens Court, Brisbane,February 1998.

• Queensland. Mining Warden. Submission to the Salaries and AllowancesTribunal by the Mining Warden Queensland, Draft Three, March 1996.

Internet Articles

• Queensland. Government. Native Title - The Queensland Response, NativeTitle Services, Department of the Premier and Cabinet, internet item,http://www.premiers.qld.gov.au/about/nativetitle/qldresponse.html

Conference Papers

• Joyce T, Assistant Secretary, Department of Chief Minister (NT), ‘StateGovernment - The New Role - Northern Territory Government’, paper presentedat the ‘Living With Wik’ conference, Sydney, November 1998

• Young, D ‘The Right To Negotiate’, paper presented at the AMPLA Native TitleSeminar, Brisbane, 26 August 1998.

Legislation

Commonwealth

• Native Title Act 1993 (Cwlth)

Northern Territory

• Energy Pipelines Amendment Act 1998 (NT)

• Lands Acquisition Amendment Act (No 2) 1998 (NT)

• Lands And Mining Tribunal Act 1998 (NT)

• Mining Amendment Act 1998 (NT)

• Petroleum (Submerged Lands) Amendment Act 1998 (NT);

• Petroleum Amendment Act 1998 (NT);


Queensland

• Coal Mining Act 1925 (Qld)

• Fossicking Act 1994 (Qld)

• Land and Resources Tribunal Bill 1998 (Qld)

• Mineral Resources Act 1989 (Qld)

• Native Title (Queensland) Act 1993 (Qld)

• Native Title (Queensland) State Provisions Amendment Act 1998 (No 2) (Qld)

• Supreme Court of Queensland Act 1991 (Qld)

• Validation Of Titles And Actions Amendment Act 1998 (NT)


APPENDIX A -

EXECUTIVE SUMMARY, DISCUSSION PAPER ONADMINISTRATIVE PROCESSES AND FUNCTIONS OF THE

WARDENS COURT, FEBRUARY 1998.

The proposals put forward in this review are aimed at improving the administrativeprocesses related to the current functions of the Warden’s Court and reducing the costs toparties involved in Mining Lease Application (MLA) hearings and compensationdeterminations.

Issues in relation to appropriate notification of MLAs to landowners and the general publicfor more time to consider the proposed mining operation have been considered and theproposals put forward should address most concerns in this regard.

The process of lodging objections to MLAs, the form, content and presentation of evidencein support of objections was considered with the emphasis on less formality and greaterrelevance.

A major consideration in this review has been to promote greater use of Alternative DisputeResolution processes to provide an avenue for parties to become better informed of theposition of the other side, to sort out concerns and find resolutions without the need to referthe matter to the Warden’s Court. If matters do require a hearing in the Court a conferencewith the Mining Registrar can help the parties to thoroughly prepare their submissions andreduce costs to themselves and the Court.

Hearings of MLAs should concentrate on inquiring into the merits of the application inaccordance with the provisions of Section 269(4) of the Mineral Resources Act. Profiles onthe application and applicant would be organised and prepared by the Mining Registrar andif MLAs are not contested the Mining Registrar will make a recommendation on the MLA tothe Minister.

Rules of evidence and conduct of proceedings should be developed for the Warden’s Courtto eliminate the adversarial approach and provide for the hearing of a MLA to be conductedas an administrative inquiry.

There does not appear to be any justification for changing the provisions for costs to beawarded by the Warden’s Court but parties need to be made aware of the relevant criteria.

Contested MLAs will proceed straight to hearing in the Court following a mediationconference involving all parties and chaired by the Mining Registrar. The Warden will makea recommendation to the Minister upon completion of the hearing. If the hearing involvescomplex technical issues (such as those dealing with the environment) then the Wardenshould be able to call on the technical expertise of persons drawn from a panel of experts(referred to as “Reviewers”), for assistance in assessing the evidence presented to the Court.


To compliment this proposed change to the constitution of the Warden’s Court it may beappropriate to consider changing the name of the Court to a “Mining and PetroleumTribunal” with the Mining Warden replaced by a Chairperson. The Tribunal would adoptthe same jurisdiction, powers and functions as proposed for the Warden’s Court in thispaper.

The terms “Warden’s Court” and “Warden” are used throughout the paper because they willbe more familiar to readers.

It is considered that compensation determinations should remain with the Warden’s Court(with some changes to present arrangements) but greater use of conferencing in line with theproposed processes for the Land Court should be implemented.

The overall impact of the proposals put forward in the review should be to substantiallyreduce the work load of the Warden’s Court and place greater responsibility for processingonto the Mining Registrar.


APPENDIX B - NEWSPAPER ARTICLES

Copyright Provision: Copy recorded for Parliamentarians only.

Disclaimer: No responsibility is taken for any transmission errors

Title Mining Court on the double.

Source Courier Mail

Date Issue 08/12/98

Page 4

THE Mining Wardens Court will beexpanded in a State Government movedesigned to clear a backlog ofapplications for exploration and miningleases.

Legislation covering native title which isnow before Parliament will establish anew tribunal to handle much of thematters that now go before the court.

But the tribunal will not be operating untilmid to late next year.

Mines and Energy Minister TonyMcGrady said Cabinet had decided toappoint a second mining warden and athird would be in reserve.

“There is an urgent need now to startclearing the backlog of cases which haveaccumulated over the last couple ofyears,” he said.

“It is time to firmly address this matterwith action. We aim to get the miningindustry back in business in Queenslandand this initiative will go a long waytowards making that happen.”

Mr McGrady said the court had beenphysically unable to process applicationsfor projects which had the potential togenerate significant employment andwealth for Queensland.



Title Two crucial native title mine facets up in air.

Author Solomon, David

Source Courier Mail

Date Issue 13/11/98

Page 11

IT is far too early to tell if the newprocedures for mining tenements onnative title land will have any seriousimpact on miners, or any beneficialresults for Aboriginal people.

We will know more in a year or so, whenthe systems have been established, and thefirst few claims have been negotiated anddetermined.

Outcomes will depend crucially on twopieces of legislation which have not beenpresented to Parliament.

If what occurred over the legislationwhich went through Parliament this weekis any guide, there will be several monthsof detailed negotiations before theproposals are made public.

The two unknowns are the heritage lawswhich will allow the protection of sacredand other sites of significance toindigenous people, and the composition ofthe tribunal which will oversee the miningprocesses.

The heritage laws could, in effect, providefor a form of veto over some areas.

That would be a new element in theequation: at present, none of theprocedures provides for anything like aveto over mining.

As to the tribunal, the only requirementnow is that it be headed by, or contain, alawyer who has been qualified five yearsor more.

Aboriginal negotiators have made it clearto the Government that they want thetribunal to be headed by a Supreme Courtjudge and to consist of District Courtjudges.

They would be extremely concerned if itwere controlled by magistrates andmining wardens.

The legislation Parliament approved thisweek did not give the QueenslandIndigenous Working Group everything itwanted but certainly puts native titleclaimants in a better position than wouldhave obtained under the minimalistrequirements of the national Native TitleAct as amended earlier this year.

The federal scheme provided for thenotification of mining proposals to nativetitle claimants; for some negotiation andmediation; for a hearing anddetermination by a tribunal; and forministerial determinations in state ornational interest.

The state legislation extends thenotification process by letting possibleclaimants register claims once a miningapplication has been made.

The right to negotiate covers proposedmining on pastoral leases.

The maximum time, from originalnotification to final decision, should beone year.

That includes any ministerial intervention.



The inclusion of strict timelines shouldovercome the problem that the right ofnegotiation could develop into a right ofveto.

It is also important to recognise that theseare negotiations over mining - notexploration.

The exploration phase has been almostentirely freed from any right- to-negotiateprocess.

The changes to the native title schemeshould mean that miners will have farmore freedom to explore and findpotential ore bodies and everyone - minersand native title claimants - will be in abetter position to assess the impact of anysubsequent mining activity.



Title Judges blast mining warden.

Author Sanderson, Wayne

Source Courier Mail

Date Issue 12/11/97

Page 1

MINING Warden Frank Windridge haddenied natural justice to a centralQueensland grazier in a case which was“dubious” and “unfortunate”, the Courtof Appeal found yesterday.

The court said Mr Windridge had takenevidence from South Blackwater Coalafter closing public hearings and withoutnotifying grazier Edward Wall.

The judges said Mr Windridge hadcontacted mining company SouthBlackwater Coal through a MinesDepartment officer then, “remarkably”attended a meeting in the company'soffice to hear new material.

Mr Wall had objected to a mining leaseover his property.

The Mining Wardens Court found againstMr Wall in a decision which sparkedunprecedented criticism of the court fromfarmers, miners and conservationists.

But the Court of Appeal quashed MrWindridge's decision for SouthBlackwater Coal to be granted a mininglease over Mr Wall's property anddirected that the application be re-heard.

It also refused an application from thecompany requesting Mr Windridge beallowed to rehear the case.

Appeal Court justices Moynihan andAmbrose said: “The course of eventsclearly violated the rule of natural justicethat a decision - maker is to hear a person

before making a decision affecting thatperson.

“In order that confidence in the systemput in place by (Parliament) ismaintained, it is in our view necessarythat another person constitute thewarden's court to rehear the matter.”

Chris Rawlings, managing director ofSouth Blackwater's parent company,QCT Resources, said the process underwhich mining leases were granted lackedclarity and certainty.

Mr Rawlings said QCT was an innocentvictim in a legal mess.

The Queensland GraingrowersAssociation and the Queensland Greenscalled for the Wardens Court to bedismantled.

QGGA policy director Ros Dunn saidfarmers no longer had confidence theywould “get a fair go from the court, MrWindridge or the processes of thedepartment”.

Mr Dunn said the Wardens Court and thedepartment had “ridden roughshod overthe rights of landholders” and fostered “aculture of arrogance which regardsfavourable treatment of miners as just”.

Greens spokesman Drew Huttondescribed the court as a “tool of themining companies”.

But Mines Minister Tom Gilmore said hewas “not uncomfortable with the



judgment” which showed legal processeswere working well.



Title Howard-Harradine deal in states of disarray.

Authors Le Grand, Chip; Niesche, Christopher

Source Australian

Date Issue 14/11/98

Page 11

MORE than four months ago, JohnHoward emerged triumphant from 11th-hour negotiations with Tasmanian senatorBrian Harradine to declare victory on theWik native title ruling.

Wik was fixed, a race-based election wasaverted and the nation was free to forgetabout native title and concentrate on theCommonwealth Games, footy finals andtax reform mostly in that order.

But this week the implications of the dealbetween Mr Howard and SenatorHarradine - a compromise on acompromise, as it was dubbed by WestAustralian Premier Richard Court - werebeing played out in State parliamentsacross the country.

What has emerged - instead of oneconsistent, albeit imperfect national nativetitle regime for all stakeholders - is thatAustralia will soon have severalsubstantially divergent regimes offeringvarying rights for traditional landowners.

Under the Government's Wikamendments, the States were invited torelieve the Commonwealth of its nativetitle burden and establish their own State-based commissions.

It was an invitation only.

Each State could decide to take over all,some or none of the functions of theNational Native Title Tribunal.

So far, only Western Australia, probablythe State most affected by native title in

terms of mining and exploration, hasopted to go the full monty.

In legislation before the West Australianparliament, Mr Court has revealed ablueprint for a State-based native titlecommission that would replace the rightto negotiate with an alternative, weakerright to consultation, and take overresponsibility for the administration andmediation of claims.

According to NNTT president JusticeRobert French, if the West Australianlegislation is passed, the Perth-basedtribunal may as well set up shop inanother State.

However, the Bill is likely to go nowhere.

Labor and the minor parties, whichtogether have a majority in the WestAustralian upper house, have signalledthe legislation will not pass in its currentform.

Deputy Opposition leader Eric Ripperthis week questioned whether thelegislation would even meet the minimumstandards set by the Federal Government.

This is a crucial point as, under the Wikcompromise, any native title legislationadopted by the States must pass musterwith the federal Attorney-General andSenate.

On Wednesday, the Beattie Governmentpassed native title legislation of vastlydifferent content, which sets out a rangeof Aboriginal negotiating rights over



mining and exploration tenements(leaseholdings) but leaves responsibilityfor the rest of the native title process withthe NNTT.

The Northern Territory has passedlegislation to establish a new Lands andMining Tribunal to deal with Aboriginalconcerns over mining tenements.

The Stone Government is happy to leavethe job of claim mediation to the NNTT,but it has abandoned the old right-to-negotiate and adopted the Howard-prescribed right to consultation.

In NSW, the Carr Government has putthrough validation legislation to confirmtitles granted over pastoral leases betweenthe proclamation of the Native Title Actand the High Court's Wik decision.

Similar legislation was passed byQueensland and the Northern Territoryand is before the West Australian upperhouse.

But NSW has left responsibility forfuture and current claims with the NNTT.

This means the right to negotiate remainsunchanged.

The same applies in Victoria, whichpushed through its validation bill onThursday.

Tasmania and South Australia areunlikely to move any legislative responseto the Wik amendments.

South Australia has its own State-basedregime, which predates the Wik decision,and Tasmania is relatively unaffected bynative title claims.

TABLE / STATE OF PLAY WesternAustralia: Only State that intends toestablish its own native title regime.

Has adopted Mr Howard's right toconsultation over applications for miningtenements.

Queensland: Passed validation legislationand Bill to establish State-based slidingscale of negotiating rights over miningtenements that go beyond Howard-Harradine amendments.

Northern Territory: Passed validationlegislation and legislation to establishState-based tribunal to apply MrHoward's right to consultation overmining tenements.

NSW: Passed validation Bill, no plans forState-based commission.

Victoria: Validation Bill before upperhouse.

No plans for State-based tribunal.

South Australia: No legislation intended.

Tasmania: No legislation intended.



Title Mining Wardens Court dumped (replaced by Land and Resources Tribunal).

Authors Williams, Brian; Greber, Jacob

Source Courier Mail

Date Issue 20/11/98

Page 4

THE controversial Mining WardensCourt will be abolished and replaced witha one-stop shop that will handle bothnative title and mining matters, underlegislation tabled in State Parliamentyesterday.

A new Land and Resources Tribunalchaired by the equivalent of a SupremeCourt judge will replace the court andoperate as part of native title legislation.

The tribunal will integrate miningapplications with native title issues andconsider cultural heritage matters, a moveapplauded yesterday by the QueenslandMining Council and the QueenslandGraingrowers Organisation.

The existing National Native TitleTribunal will continue to haveresponsibility for deciding native titleclaims.

Premier Peter Beattie said the tribunalwould absorb the activities of the miningwarden and include two other presidingmembers of District Court judge ranking.

It would transform the process ofdetermining mining applications and wasthe final stage of the Government's three-part native title legislation.

Last week Parliament passed the NativeTitle Amendment Bill, which awaitsapproval by Federal Parliament.

Mr Beattie said the model wouldencourage the amicable and efficient

resolution of native title issues as theyrelate to mining.

The new tribunal also will have mining,mediation and indigenous referees whocan advise tribunal members but not votein any hearings.

Over the past two years, judicial reviewsand Court of Appeal actions have beenlaunched against the Mining WardensCourt as graziers argued that they hadbeen denied justice in a series of decisionsapproving mining applications on grazingcountry.

Mining Council director of operationsBarrie Mathias said miners supported thechanges and would look for balanceddecisions from the tribunal.

“We welcome the opportunity of thetribunal being provided with resourcesand expertise to address the difficult andcomplex issues associated with miningventures,” Mr Mathias said.

Graingrowers industry policy directorRoss Dunn said the tribunal was asignificant step in the reform of the waymining lease applications were handled.

“Landholders now have the expectationthat they will be treated fairly in a courtthat understands and applies principles ofnatural justice,” Mr Dunn said.



Title Mining Wardens Court: It’s time to go gracefully

Author Dunn, Ross (Queensland Graingrowers Association)

Source Queensland Country Life

Date Issue 24 September 1998

Page 16

“It’s what the community expects.” Thesentiment is echoed often enough and thistime none more so than by landholdersand miners.

Strange bedfellows perhaps, given ourpublic differences eighteen months ago,but we are now very much in step inaddressing much needed reforms in thehandling of large scale mining projects.

To this point, QGGA and indeed all themajor rural landholder groups inQueensland have endorsed a QueenslandMining Council position paper on themajor elements of the proposedenvironmental protection policy formining.

High on this list of desired changes arebetter treatment of complexenvironmental and land use issues andrestructuring of the Mining Warden’sCourt.

Currently, the Mining Warden, inconsidering an application for mininglease has to consider whether the pastperformance of the applicant has beensatisfactory; the operations conform withsound land use management; and anyadverse environmental impact caused bythose operations.

Done properly, a thorough considerationof these (and other) matters by the Courtwould be fine. The bitter reality though isfound in the recent words of actingwarden Verra: The essential differencebetween the evidence of these witnesses

appears to be in terms of the capacity ofthe bore to recharge at the end of themining period.

I have canvassed the issue of dewateringof bores at length and simply reiteratethat such activity is subject to DNRapproval. Beyond that, the issues for thiscourt are supply of a suitable alternatesource of water by the applicant orpayment of compensation.

Water is the lifeblood of the bush,particularly high quality undergroundreserves capable of sustainably wateringover a thousand cattle.

In the interests of the community the bestthe Wardens Court can do is to gogracefully and quietly into history.

land and resources tribunal bill 1998 · infrastructure and allows for the grant of infrastructure...

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