Tribunal President Justice French said today the Tribunal's second comprehensive ruling in relation to the grant of mining leases in Western Australia further clarified the type of decisions miners, States and native title parties might expect when negotiations failed and Tribunal arbitration was requested.
The two test cases contain a comprehensive analysis of issues related to the grant of mining leases and the conditions the Tribunal arbitrators might apply.
In the determination handed down on Wednesday, the Tribunal, sitting as a panel of three members - Hon Chris Sumner, Mr Graeme Neate and Ms Pam O'Neill - ruled that mining leases could be granted to Aurora Gold and Austwhim Resources. Negotiations between the miners, the State of WA and the Waljen native title claimants did not lead to agreement within six months and the matter was referred to the Tribunal for arbitration.
This follows on from an earlier ruling, by Members Mr Paul Seaman QC, Mr Michael McDaniel and Ms Diane Smith. In that matter the Members ruled that mining leases could be granted to Sons of Gwalia, Mt Edon Gold Mines and prospectors Cottee and Townsend, subject to certain conditions. The native title claimants are the Koara people.
In dealing with the issue of compensation, the Tribunal has highlighted the fact that if native title rights are affected by mining and compensation is payable, any payments should be held in trust until there is a determination of native title.
The level and type of compensation that can be ordered should reflect local mining laws and the provisions they already include for compensating landholders, while taking into account the special nature of native title rights, and interests.
In both rulings the Tribunal has identified a problem in the way the WA Mining Act interacts with the Native Title Act. Mining leases in WA may involve an extension of the exploration phase, rather than actual production. The Tribunal can only hold one arbitral hearing in relation to the grant of a mining lease, regardless of whether the miner's intention is to continue exploring or enter production.
This makes it difficult for the Tribunal to rule on compensation (or other conditions) as the potential effect of the mine on native title is an unknown.
Mining leases being used for exploration create a number of problems for Tribunal. One problem stems from the difficulty in ruling on compensation when the effect of the mine is unknown.
The Tribunal said this problem should be brought to the attention of State and Federal parliaments.
The potential significance of these decisions was recognised when Justice French appointed two three-Member panels to the matters.
"This is a developing area of law and we are working to provide guidance in terms of what the legislation means and how it could operate in particular cases," Justice French said.
Recent decisions of the Federal Court have also clarified the meaning of some of the provisions of the Native Title Act.
"It is important that the Tribunal establish clear guidelines as to the meaning and operation of the Native Title Act for the parties to these cases, and the parties to future applications," he said. |