Queensland's native title mining regime rises from the ashes

by Philip Hunter

State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371

On 27 November, the Full Federal Court unanimously held that four determinations made by the Commonwealth Attorney-General under section 43(1) of the Native Title Act 1993 (Cth) – concerning Queensland's native title mining regime – were valid. However, in a surprising development the Queensland Premier has shown his determination to have the final word.

In February 2002 we presented a news article outlining Justice Wilcox's decision on the matter, which had been initiated by the Central Queensland Land Council ("the Land Council"). The trial judge held that four of the seven determinations made by the Commonwealth Attorney-General ("A-G") in May 2000 under section 43(1) of the Native Title Act 1993 (Cth) were invalid. Justice Wilcox's decision has now been set aside by the Full Court.

The various determinations related to the processes for the granting of a range of mining tenements under the Mineral Resources Act 1989 (Qld) on areas where native title may exist. Justice Wilcox held that the four determinations were invalid because, although Queensland's legislation was enacted, it was not in force at the time the determinations were made. His Honour also held that amendments to the Mineral Resources Act 1989 (Qld) were not invalidated due to a failure to satisfy the requirements of section 24MA of the Native Title Act or inconsistency with the Racial Discrimination Act 1975 (Cth).

The A-G and the State of Queensland appealed from parts of Justice Wilcox's judgment. The Land Council cross-appealed. The appeals and cross-appeals were heard before Justices Beaumont, Lee and Kiefel in the Full Federal Court.

Justice Beaumont considered the legislative framework of the "alternative State provisions" under the Native Title Act and the Mineral Resources Act, and the Minister's Second Reading Speeches to the various amending legislations to the Mineral Resources Act 1989 (Cth). His Honour held that the A-G was only required to find that Queensland's laws complied with the requirements of section 43(2) of the Native Title Act 1993 (Cth), not whether Queensland's laws were in force. His Honour agreed with Justice Kiefel's dismissal of the Land Council's cross-appeals in relation to the contended invalidity of the 1998 and 1999 amendments to the Mineral Resources Act.

Justice Lee held that at the time each determination took effect upon its notification in the Commonwealth Gazette, the whole of Queensland's 'alternative State provisions' had commenced operation. That empowered the A-G to have the determination he had made take effect on that day, there being a law of Queensland that provided "alternative provisions" that would "have effect" when the determination came into force. Justice Lee also held that section 43(1) of the Native Title Act permitted the
A-G to make a determination based on an opinion formed pursuant to section 43(2) in respect of a law of a State or Territory not yet in effect. His Honour also agreed with Justice Kiefel's dismissal of the Land Council's cross-appeal.

Justice Kiefel, in concurring with Justice Lee, held that the State provisions were in force when the determinations took effect, holding that section 43(1) does not require the alternative State provisions to have commenced when the A-G made the determinations.

With respect to the validity of the amendments to the Mineral Resources Act, Justice Kiefel held that although the consolidated Act "affected" native title rights and interests within the meaning of section 227 of the Native Title Act the amendments to the Mineral Resources Act did not and the minor amendments did not constitute "future acts" within the meaning of section 233 of the Native Title Act. Her Honour also rejected the Land Council's arguments in relation to the Racial Discrimination Act that the amendments placed native title holders in a more disadvantaged position.

In upholding the validity of the section 26A determinations, Justice Kiefel held that when the A-G made those determinations, he had referred to the Explanatory Memorandum to the Native Title Bill 1997 and discerned that it was intended that a section 26A determination could be made in respect of all acts in a class of acts across a State.

STOP PRESS: In a surprising development following the outcome of the appeal, Queensland Premier Peter Beattie announced on 28 November 2002 that Queensland's native title mining regime under the Mineral Resources Act will only remain in place until 31 March 2003. After that date the "right to negotiate" provisions under the Native Title Act 1993 (Cth) will again apply in the State of Queensland.


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