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Australian Indigenous Law Reporter |
Legislative Developments - Australia
Dr Sally Sheldon[∗]
On 28 March 2003, the Queensland Parliament passed the Natural Resources and Other Legislation Amendment Act 2003 (Qld), which commenced on that date. Parts 2 and 6 of the Act formally implement the government’s earlier decision[1] to revert to processing all new mining and exploration tenement applications under the Commonwealth ‘right to negotiate’ procedures for the authorisation of future acts liable to affect existing native title rights and interests.
The right to negotiate procedures are those contained in pt 2, div 3, sub-div P of the Native Title Act 1993 (Cth) (‘NTA’), which was enacted as part of the original Commonwealth response to the High Court of Australia’s decision in Mabo v Queensland (No 2).[2] The right to negotiate procedures are a core component of the NTA’s ‘future act’ provisions. They aim to protect native title rights and interests by specifying the preconditions to be met before certain dealings – including the creation or variation of a right to mine or explore for minerals – can be carried out over land where native title may exist.
Since 18 September 2000 in Queensland, applications for mining and exploration tenements had been scheduled to be processed under the so-called ‘Alternative State Provisions’ (‘ASPs’), rather than the Commonwealth right to negotiate procedures. The ASPs were enacted as pts 12–17 of the Mineral Resources Act 1989 (Qld),[3] pursuant to those sections of the NTA which allow the states and territories to enact their own alternative legislative schemes for dealing with future acts that would otherwise attract the Commonwealth right to negotiate procedure – provided that those schemes meet the minimum conditions specified in the NTA.[4]
Thus, in relation to low-impact exploration and prospecting permits and low-impact mineral development licences, the Queensland ASPs have provided for certain reduced procedural preconditions to the granting of the relevant tenement, in accordance with the requirements of s 26A of the NTA.[5] In relation to other mining and exploration tenements, the ASPs have provided, pursuant to s 43 of the NTA, for a state-based equivalent of the full Commonwealth right to negotiate process, in which disputes are referred to the Queensland Land and Resources Tribunal, rather than to the National Native Title Tribunal.[6]
The official date for Queensland’s switch back from the ASPs to the Commonwealth provisions was set as 31 March 2003.[7] Mining and exploration tenement applications lodged under the Mineral Resources Act, on or before that date, will continue to be processed under the ASPs. However, tenement applications lodged after that date are now to be processed either:
(a) in the case of acts (‘low-impact’ activities) attracting the so-called ‘expedited procedure’ pursuant to s 237 of the NTA[8] – under the expedited procedures provided for in s 32 of the NTA; or
(b) in the case of other acts – under the full Commonwealth right to negotiate provisions.
Accordingly, matters requiring mediation or determination are now to be referred to the National Native Title Tribunal.
The passage of this legislation marks the end of an eventful, if short-lived chapter in the history of ASPs in Queensland. The original impetus for the adoption of ASPs was the build up of a significant backlog of mining and exploration tenement applications, which was blamed upon the perceived logistical difficulty of complying with the Commonwealth right to negotiate procedures. Although passed by the Queensland Parliament in 1998 and 1999, the legislation implementing the ASPs could not – pursuant to the requirements of the NTA – be proclaimed into force until approved by the Commonwealth Attorney-General. Although approval was given in June 2000, the Senate subsequently disallowed some of the ASPs, forcing amendments to be made to the original Queensland legislation. A modified set of ASPs did not commence operation until 18 September 2000. At this point, the ASPs were subjected to legal challenge. After first being declared partially invalid by Wilcox J in the Federal Court in February 2002,[9] the full set of modified ASPs was upheld on appeal to the Full Court on 27 November 2002.[10] By this time, however, the Queensland government had already decided to revert to the original Commonwealth right to negotiate procedures (including the expedited procedures for low-impact activities), and announced its decision to this effect the following day.
Now that the Queensland government’s decision to revert to the Commonwealth provisions has been formally implemented, the only alternative State provisions which remain operational are those in South Australia[11] and New South Wales.[12]
The full text of the Act is available online via the Office of the Queensland Parliamentary Counsel website at
<http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2003/03AC010.pdf>.
[∗] Associate Lecturer, Queensland University of Technology.
[1] That decision had been announced by the Premier and the Minister for Natural Resources and Mines on 28 November 2002.
[2] [1992] HCA 23; (1992) 175 CLR 1.
[3] Taken together with relevant provisions of the Land and Resources Tribunal Act 1999 (Qld).
[4] See sections 26A, 43 and 43A of the NTA.
[5] Section 26A exempts ‘approved exploration etc acts’ (ie, grants of mining exploration rights determined by the Commonwealth Attorney-General to be ‘unlikely to have a significant impact’ on the relevant area) from the Commonwealth right to negotiate provisions, provided that the reduced procedural rights specified in that section are guaranteed to native title parties by relevant State legislation. The relevant Queensland provisions require notification of native title parties, a four month period before consultation begins, and the finalisation of access conditions (either by agreement or determination by the Queensland Land and Resources Tribunal) prior to entry onto the land.
[6] Section 43 exempts future acts from the right to negotiate provisions on condition that the Attorney-General determines that there exist ‘alternative State or Territory provisions’ which afford to native title parties similar procedural rights to those provided for in the Commonwealth right to negotiate provisions.
[7] Thus, Part 6 of the Natural Resources and Other Legislation Amendment Act 2003 (Qld) makes numerous minor, technical amendments to the Mineral Resources Act 1989 (Qld), necessary to limit the operation of the previous Queensland ASPs to mining and exploration tenement applications lodged on or before 31 March 2003.
[8] Section 237 defines future acts attracting the expedited procedure as acts which are ‘not likely to’ interfere directly with the community or social activities of native title holders, with areas or sites of particular significance, or to involve major disturbance to the relevant area.
[9] Central Queensland Land Council Aboriginal Corporation v A-G (Cth) [2002] FCA 58; (2002) 116 FCR 390.
[10] State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; (2002) 195 ALR 106.
[11] Since 1995, South Australia has operated with a set of approved ASPs, enacted pursuant to s 43 of the NTA, to process future act applications relating both to grants of mining tenements and compulsory acquisition of land for third-party purposes: see s 58 and divs 4–5 of pt 9B of the Mining Act 1971 (SA); divs 4–5 of pt 7 of the Opal Mining Act 1995 (SA); ss 10, 16 and pt 4 of the Land Acquisition Act 1969 (SA).
[12] Since December 2000, NSW has operated under an alternative legislative scheme, enacted pursuant to s 26A of the NTA, in relation to low-impact exploration licences and special prospecting authorities which have been determined to be ‘approved exploration acts’: see ss 32A–32G of the Mining Act 1992 (NSW); div 6 of pt 3 of the Petroleum (Onshore) Act 1991 (NSW).