This decision concerned an application for a future act determination brought by a number of companies with interests in a mine located within the area of a registered native title claim filed on behalf of the Western Kangoulu People. The proposed future act was to expand the activities of a mine. The mining companies (the joint venturers) sought a determination pursuant to s 35 of the Native Title Act 1993 (Cth) (‘NTA’) that the act may be done. The parties were the joint venturers, the State of Queensland and the native title applicants.
Background
Aboriginal cultural heritage matters in connection with the relevant area were managed in accordance with a cultural heritage management agreement referred to as the ‘2018 Agreement’.
Submissions
Section 39 of the NTA sets out relevant considerations for such a determination. The joint venturers submitted that there was no record of Aboriginal cultural heritage sites within the area of the expansion based on a search of the Aboriginal Cultural Heritage Database and Register. The Court held that this was not conclusive evidence on the question given that the Aboriginal Cultural Heritage Act 2003 (Qld) protects Aboriginal cultural heritage whether or not it is recorded. The joint venturers also contended that native title claimant did not assert that the relevant lands and waters were of particular significance. Further, that access for the claimants for cropping and grazing would continue during the extension given that the proposed activities were underground. Finally, they asserted that there would be significant economic benefit, locally, and at a state and national level.
The state submitted that some native title rights and interests may continue to exist in relation to parts of the relevant lands and waters but that the proposed grant would not extinguish any existing native title.
The native title applicants contended that the grant would negatively affect their enjoyment of native title rights and interests, however, the Court noted that this was supported by very little evidence. The native title applicants also submitted that an approved cultural heritage management plan was required by part 7 of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACH). The Tribunal rejected this on the basis that if the Tribunal made the determination requested, under the ACH, the cultural heritage management plan would not be required because the determination is a form of native title agreement.
Decision
The Tribunal granted the declaration requested by the joint venturers based on the finding that the claim group attached no particular significance to the land to which access might be lost, the significant economic and social benefit was in the public interest and, with respect to s 39(2) of the NTA, that only non-native title rights and interests were identified.