CHAPTER 6
CHAPTER 6
The Right to Negotiate and Mining
6.1 In his Second Reading Speech the Attorney-General stated that:
Among the many shortcomings of the current act, it has become
apparent that the 'right to negotiate' procedures, which apply to mining
and certain compulsory acquisitions, have failed to deliver the outcomes
that were expected. Not only have these procedures impeded resource
and commercial development, but they have done so without giving indigenous
peoples substantial benefits in return. Both development interests and
indigenous groups - and the two are not always mutually exclusive -
have every right to be disappointed.[1]
6.2 Mr Dick Wells, Executive Director of the Minerals Council of Australia,
told the Committee that the processes under the Act constitute 'another
layer of regulation that is exceedingly costly for us to deal with'.[2] Mr George Savell, the Chief Executive of the Association
of Mining and Exploration Companies, pointed out that there is not only
the direct cost but also the cost to Australia of the exploration activity
that does not occur here because of native title concerns.[3]
He told the Committee that Act is unworkable in commercial terms and in
his Association's view is the greatest single disincentive to mineral
exploration and mining development in Australia at this time.[4]
Mr Savell also said:
Currently about 1,200 Western Australian mining lease applications
are stalled in the debilitating native title process with little hope
of resolution in the short to medium term.
In the north-eastern goldfield of Western Australia there
is a complex kaleidoscope of claims affecting the same area, with some
claimants participating in more than one claim ... In fact, this is
where we find the individual claims from Aboriginal families and each
member entering their own claim.
That extraordinary state of affairs - if one looks
at it in a reasonable manner - has arisen because of the right to negotiate,
which native title claimants currently enjoy as a result of the 1993
act. I want to say very honestly that the right to negotiate process
provides the leverage to obtain the so-called compensation which might
flow from the claims process for the effect of a developer's activities
on native title in any given area where a claim may exist. Indeed, the
right to negotiate, I suggest to you, has virtually become a de facto
right of veto over exploration and mining development in its practical
application and represents a critical problem for the mining industry.
What must be clearly understood is that the right to negotiate
process is in our view quite specious, in that payments are being sought
and, indeed in some cases are being made, to claimants who have not
been awarded native title, may never be awarded native title and indeed
we may be paying the wrong people, because a legitimate claimant may
arise at some point and we will need to pay again.[5]
6.3 Ms Catherine Hobbs, a geologist and mining company representative
with experience in South Australia and Western Australia also described
to the Committee the difficulties with the right to negotiate under the
Act. In addition to the problems arising from overlapping claims, she
identified abuses of the right to negotiate, expressing particular concern
that there is no regulation of who can negotiate for native title claimants:
A whole industry has arisen whereby people, often with no qualifications
of any kind, interpose themselves between us and the people with whom
we are seeking to negotiate. ... Some of these intermediaries will not
permit us to speak to the people for whom they are negotiating, and
they will not speak to us unless we pay them very large daily fees.
It is clearly in their interest then to represent as many parties as
possible, and I know from personal experience that some of them foster
and encourage new native title claims which they can represent. It is
also in their interest to make negotiations take as long as possible,
because they are paid on a daily rate.
It is also clear to those of us working in the area that
some of the claims lodged in the last year or two are lodged for reasons
other than protection of native title. It is openly admitted to us that
they are lodged for reasons of obtaining access to funds from mining
companies.[6]
6.4 The Committee notes that under the right to negotiate at present
the obligation to negotiate in good faith falls only on the government
party. Under the amendments proposed in the Bill all of the negotiation
parties would have an obligation to negotiate in good faith (new s.31(1)).
6.5 The position of the National Indigenous Working Group at page 13
of its submission is that the existing rights of native title holders
at common law and under the Native Title Act 1993 (NTA) must not
be reduced or removed. The NIWG opposes any moves to diminish indigenous
rights for the benefit of others and believes that it has developed a
comprehensive solution to coexistence, validation and the workability
of the NTA which provide enhanced efficiency, without altering the existing
rights of any party. The NIWG believes that the right to negotiate (RTN)
must not be impaired or removed and must continue to apply to exploration,
mining and compulsory acquisition to the extent it now applies.
The NIWG's argument is in eight parts as follows:
6.6 The NIWG considers (Submission, p.14) that the RTN takes account
of the spiritual relationship between native title holders and their traditional
lands. In particular, it provides the basis for the protection of areas
and sites of significance, the protection and promotion of Indigenous
culture and community living and main-tains the ability of native title
holders to enjoy and utilise the natural environment.
6.7 In the case of exploration, the NIWG has pointed out (Submission,
p.14) that the RTN provides for certainty of outcome within 2 months if
the expedited procedure applies.
6.8 In the view of the NIWG, the removal or diminution of the RTN such
that it no longer contains the minimum level of protection for native
title will create uncertainty by forcing native title holders outside
the NTA and into the Courts.
6.9 The NIWG advised the Committee that, as a result of the failure of
Australian governments to protect Indigenous rights in the past, there
is a backlog in the determination on native title throughout the country
- such determinations being the prescribed means of acknowledgment of
existing common law native title rights. For NIWG, the RTN addresses this
problem in a balanced way by providing for the interests of resource developers
and those of yet undetermined native title holders who can only access
the RTN after lodging a claim and passing a reasonable threshold test.
6.10 Activities such as exploration can bypass the RTN through an 'expedited
procedure' which removes the RTN if the activity does not directly interfere
with community life; interfere with areas or sites of particular significance;
or involve a major disturbance to any land or waters.
6.11 According to the NIWG (Submission, p15), in its 1996 review of the
NTA, the Industry Commission reported that due to policy differences between
the States, the expedited procedure had only been used extensively in
Western Australia, where the procedure had resulted in the grant of 94
per cent of applications for prospecting and explorations licences in
minimum time. Other States and Territories chose to ignore the NTA.
6.12 The NIWG has pointed out that the RTN procedure cannot be used as
a veto on resource development. To the contrary, it favours resource development
through short timeframes and compulsory arbitration, limits on compensation
and ministerial override.
6.13 The NIWG claims that the mining industry's view that native title
has adversely affected mineral exploration in Australia is exaggerated:
Exploration continues in Australia at near record levels, despite
the fact that a high proportion of the country has been explored for
surface deposits using modern methods. Given that this has occurred,
and the Government's promotion of offshore exploration, it is only logical
that there has been a slight trend for exploration (particularly by
multi-national companies) to move offshore to countries which remain
largely unexplored.
6.14 Further, the NIWG has advised that claims that native title has
brought about an increase in 'brownfields' exploration can equally be
explained by the increasing proportions of middle-aged mines in Australia:
This factor has provided the economic rationale for exploration
in the immediate vicinity of an existing mine in order to extend the
life of mine plant and equipment and hence the profitability of the
initial capital investment which as already been installed.
6.15 This benign view of the effect of the RTN on mining activity is
supported by ATSIC:
On any fair assessment the Right to Negotiate could hardly be
described as a veto and nor has it operated like one. Nor does it place
any significant barriers in the way of miners and there is no evidence
that it has had any significant impact on exploration or mining in Australia.[7]
6.16 Comments made by a number of groups suggest that it is necessary
to retain the right to negotiate on both exploration and mining because
the area subject to exploration may be much larger than for a proposed
mining tenement; the exploration activities may have a lesser impact on
an area than mining activities; and it is unrealistic to negotiate about
the conditions for a potential mine at exploration stage, for example,
before a suitable deposit has been located, and no mine may ever be built.
6.17 In their evidence and submissions, some indigenous groups have expressed
concerns that their ability to regulate access, and therefore to protect
sacred sites will be impaired if the right to negotiate at the exploration
stage be removed. Comments by the Northern Land Council and the spokesman
for the Ngaanyatjarra Council indicate that the right to negotiate at
the exploration stage allows miners and native title holders to develop
a good working relationship early on, particularly because of the opportunity
to raise concerns about site clearance at a preliminary stage. The early
contact is said to facilitate negotiations at the mine development stage.
6.18 ATSIC and the NIWG have a much more benign view of the operation
to date of the right to negotiate process than does the Commonwealth.
The Government Submission (p.50) advised that overall about 74% of proposed
acts referred through NTA procedures which have completed the notification
period have proceeded to grant, as they did not attract a native title
claim or objection to the expedited procedure. While this clearance rate
is on the face of it apparently reasonable, further analysis reveals significant
problems with acts which attract the full right to negotiate. Importantly,
of the 1,910 acts which have been subject to the full right to negotiate
process only 148 were cleared for grant as at 10 October 1997. This is
a clearance rate of about 7.7%.
6.19 Further, the Commonwealth points out (Submission, p.51) that, as
WA made clear in its evidence on 15 October, most of the mineral tenements
which have attracted the right to negotiate are mining leases. These are
the titles under which the substantial economic development occurs. The
overall clearance rate for all mining leases the subject of section 29
notices is currently around 18% and the trend clearance rate for mining
leases has been declining since WA began using the NTA procedures. For
example, the clearance rate for mining leases at 13 September 1996 was
22%. As more claims have been lodged a greater proportion of mining leases
are subject to the right to negotiate.
6.20 The Commonwealth has confirmed (Submission, p.53) that there are
two main ways in which the right to negotiate at the exploration stage
may be affected by the proposals in the Bill:
- subsection 26D(2) permits conjunctive agreements or determinations
to be made; and
- classes of exploration, prospecting, fossicking or quarrying activities
may be excluded from the right to negotiate under section 26A:
6.21 According to the Commonwealth, the result in relation to the first
is that where an agreement or determination for an exploration or prospecting
authority contains conditions relating to the future grant of a mining
authority, that authority can be granted without going through the right
to negotiate providing that all the conditions in the agreement or determination
have been met.
6.22 In relation to the second, the Commonwealth has pointed out (Submission,
p.53) that section 26A allows the States and Territories to develop systems
for approval by the Commonwealth Minister for granting exploration titles.
If approved, these schemes will apply instead of the right to negotiate
in relation to these types of grants. Certain conditions for approval
must be met:
* the grant must be `unlikely to have a significant impact' on
the particular land or waters concerned - this may exclude exploration
permits or licences which allow for the removal of significant amounts
of material;
* the Minister must have invited and considered submissions
from the relevant representative body and notified the public about
the proposal;
* the Minister must be satisfied that -
- all native title holders will have
a right to be notified that particular exploration etc activity
will be carried out;
- that they will have an opportunity
to be heard by an independent person or body about whether
the exploration grant should be made and any matter relating to the
grant;
- the explorer will be
obliged to consult about certain matters with the native title
holders for the purpose of minimising the impact of the act on the
exercise of native title rights;
* those matters include the identification
and protection of sites of significance, access to the land by the explorer
and the way in which activities authorised by the grant will be done.
6.23 The proposed s.26C provides that the right to negotiate does not
apply to small-scale opal and gem mining. Under the Act, 'mining' is defined
to include 'exploration' and 'prospecting' (s.253), so the provision also
applies to these activities. However the Lightning Ridge Miners Association
drew to the Committee's attention what it saw as a problem with the drafting
of the proposed s.26C. One of the criteria imposed by the section to ensure
that it applies only to small-scale activities is that the right to mine
'allows that mining only in an area no larger than 5 hectares' (new s.26C(1)(c)).
The Association pointed out that at the exploration stage, the areas typically
involved cover some hundreds of hectares.[8]
Hence the provision does not in any practical way operate to exclude the
right to negotiate during the exploration phase. As the Association described
it to the Committee, the opal exploration phase conducted by its members
has only the most limited impact on the land.
6.24 The Committee agrees that the right to negotiate should not apply
to each individual opal exploration activity and also that, as presently
drafted, the proposed s.26C does not achieve the desired result. However,
the Committee believes that the proposed s.26A does provide an adequate
solution for opal explorers. Under s.26A, the Minister may determine in
writing that a class of acts is an 'approved exploration' if he or she
considers that the acts in the class are unlikely to have a significant
impact on the land. A class of acts under this provision could, for example,
cover exploration for opals in the Lightning Ridge area. The Committee
however recommends that this matter be clarified to ensure that
prospecting activity in these circumstances may continue.
6.25 No right to negotiate applies to 'approved exploration' under s.26A
but consultation is required. Before giving the approval, the Minister
must have notified any relevant representative Aboriginal/Torres Strait
Islander body and the public about the proposed determination, invited
submissions from them and considered any submissions made. In addition,
the Minister must be satisfied all relevant registered native title bodies
corporate, registered native title claimants and representative Aboriginal/Torres
Strait Islander bodies will have a right to be notified that each act
included in the class is to be done, whether or not others have such a
right (new s.26A(6)(a)). In addition, they must also have a right to be
heard by an independent person or body about whether and how the act is
to be done, if this right is available to other persons with an interest
in land in that State or Territory in similar circumstances (new s.26A(6)(b)).
For example, if a pastoralist or holder of a freehold title has a right
under State legislation to be heard in a Mining Warden's Court in relation
to the grant of an exploration title, then the relevant native title holders,
claimants and representative bodies must also have such a right.
6.26 The Committee considers that the proposed s.26A, with the degree
of consultation that it requires, strikes an appropriate balance between
native title claimants and those seeking to undertake opal exploration.
6.27 The proposed amendments to the RTN process are endorsed. Notably,
the existing RTN process should not be supported on the ground that it
assists in the protection of indigenous heritage; such protection is provided
by the Aboriginal and Torres Strait Islander Heritage Protection Act
1984 currently under review by this Committee.
[Return to table of Contents]
Footnotes:
[1] House of Representatives Daily
Hansard, 4 September 1997, p.7528
[2] Evidence, p.484. See similarly
Evidence, pp.454-55 (Association of Mining and Exploration Companies).
[3] Evidence, p.455.
[4] Evidence, p.431.
[5] Evidence, p.432.
[6] Evidence, p.846.
[7] ATSIC Submission, p.8.
[8] Evidence, p.1917.
|
