A three-member panel has been appointed by the National Native Title Tribunal to arbitrate on the grant of mining leases to Century Zinc Ltd after six months of negotiations between north-west Queensland native title claimants, the State and the company failed to produce an agreement.
Tribunal Members the Hon Paul Seaman QC, Hon Christopher Sumner and Ms Diane Smith will conduct the arbitral hearing. A preliminary conference will be held very shortly.
"No Tribunal member involved as a mediator in negotiations over the grant of leases will sit as a member of the arbitral panel," Tribunal President Justice Robert French said.
The Tribunal is required to take all reasonable steps to decide within six months whether the leases can be granted and, if so, subject to what conditions.
"The Tribunal's decision can be overridden by the Minister for Aboriginal Affairs, Senator Herron," Justice French said. "It can also be reviewed in the Federal Court on a question of law."
If in the meantime the parties reach agreement the arbitration must be called off and the agreement given to the Tribunal.
"There are some differences in the types of financial benefit native title parties can receive through arbitration as opposed to negotiation," Justice French said.
Under the Native Title Act the Tribunal cannot set conditions that have the effect of giving native title parties a right to a share in the profits of the mine.
"Importantly any determination providing for compensation payments will see funds held in trust until such a time as there is a determined native title holder. If at a later date native title cannot be proved, the funds held in trust would be returned.
In making its decision, the Tribunal must take into account the effect of the proposed mining on:
- any native title rights and interests;
- the way of life, culture and traditions of the native title parties;
- the development of the social, cultural and economic structures of the native title parties;
- freedom of access by the native title parties to conduct traditional pursuits;
- any area or site of significance to the parties, and
- the natural environment.
It must also consider:
- the interests and proposals of the native title parties;
- the economic significance of the proposal to Australia and to Queensland; and
- the public interest.
The Tribunal in arbitrating on the grant of the leases is not empowered by the Act to make a determination of native title. The Tribunal is required by the Act to carry out its functions in a fair, just, economical, informal and prompt way. These procedural directions may require difficult balancing of competing interests in the arbitration process.
Justice French said the Tribunal had put a considerable amount of time and effort into assisting parties to reach a negotiated outcome. The fact that not all parties could agree was disappointing and the arbitral process would now go ahead as required by the Act. Justice French acknowledged the considerable work of Mr Rick Farley and Dr Mary Edmunds and the Tribunal staff in the mediation process. |