Ruling points to NT negotiation

MANY analysts and industry players are still trying to understand the implications of last week’s High Court judgment on Native Title claims over land in the far north-east of the State.

What was immediately clear, however, was that, under the State’s laws, Native Title has been deemed to co-exist with both pastoral and mining leases, but not to extend to the right to control access to land.

The 400-page appeal judgment also confirmed there were no Native Title rights to, or interest in, minerals and petroleum in WA.

Chamber of Minerals and Energy (WA) president Peter Lalor said the certainty that the State retained ownership to mineral and petroleum rights and that the royalties payments system for mining would continue was the most important outcome of the case.

Despite these clarities, and those afforded to the Miriuwung-Gajerrong people – claimants to the test land taking in the Ord River project and the Argyle Diamond venture – most stakeholders and advisers agree Native Title issues remain open to test in the legal system.

One area under debate since the ruling is the validity of WA tenements granted following the Federal Court’s 2000 ruling that the granting of mining leases under the Mining Act 1978 permanently extinguished Native Title.

Marcus Holmes, Deacons senior associate and head of the firm’s Native Title unit, said another interesting outcome against the Federal Court ruling that preceded the High Court challenge was that major and long-term projects did not necessarily extinguish Native Title.

Hence, owners and operators of WA’s major mining projects – particularly in the gold, iron ore and nickel sectors – would most likely still need to resolve some issues under the Native Title Act.

Under the Court Government-amended Mining Act 1978, mining tenement holders may be liable for compensation where Native Title has been extinguished, so wherever mining activities could be considered to have partially extinguished rights, companies could be subject to compensation claims.

The High Court ruling has allowed that successive partial extinguishments could result in full extinguishments and, although this could be difficult to prove, one cannot preclude such a scenario.

According to Minter Ellison partner and Native Title specialist, Graham Castledine, such claims and their defence would be very costly and perhaps not deemed to be of sufficient benefit to test in court. But if agreement cannot be reached on just what had been extinguished, or on how to manage this, these matters would always go to court.

Those applying for mining leases would still need to negotiate under the Native Title Act, a time-consuming process and one of significant expense, but nonetheless a far better outcome than if Native Title had been deemed to be extinguished on the granting of a lease, making compensation payable.

This added impetus to the efforts of companies and land claimant groups to negotiate their way through managing all proposed exploration and mining activity, and for the State Government to progress its stance on negotiation rather than litigation, Mr Holmes said.

Moreover, Mr Castledine added that the High Court expressly declined to comment on whether spiritual connection alone was sufficient to establish a Native Title right.

“The decision is a stark reminder that negotiation is the way to go – the decision doesn’t provide any easy answers for any of the stakeholders,” Clayton Utz senior associate and resources law specialist Mark Gerus said.

While last week’s decision sent the issues concerning the Ord River area back to the Federal Court, the real certainty in the ruling was that any Native Title rights to minerals and petroleum were extinguished.

“The challenge remains to get mining tenement applications through the ‘right to negotiate procedures’ under the Native Title Act,” Mr Gerus said.

The WA Government would need to decide, in the absence of further changes to the Native Title Act, how it would respond to proposals to clear the 11,000 mining tenement applications through 1993 Native Title Act procedures, he said.

The Australian Petroleum Production and Exploration Association agreed with the need for negotiation for onshore petroleum participants, but questioned further delays in granting outstanding petroleum exploration permits.

The granting of some such permits in the Kimberley have been delayed for up to six years, pending the resolution of Native Title issues, even though petroleum exploration is far less intrusive than minerals exploration.

The High Court conclusion that the historical vesting of reserves in local governments and other bodies totally extinguished Native Title permanently was a surprising development and created new law in this area.

Mr Castledine said this would have a huge impact on local governments and bodies such as church groups, which have previously needed to invoke Native Title Act procedures before doing things such as improving foreshore, parks, sporting grounds and conservation reserve facilities.

The decision would also affect South West and metropolitan Native Title claims.