Queensland native title - back to the future

by Ben Zillmann

Background

From 18 September 2000, Queensland introduced its own 'Alternative State Provisions' (ASPs) relating to native title and the grant of mining tenements in the state. These provisions applied in place of the Commonwealth 'right to negotiate' regime. However, the Queensland ASPs did not get approval in their original intended form, because of several compromises made in the federal Senate as part of the federal 'authorisation' process.

It is probably fair to say that there has been dissatisfaction from both native title claimants and the mining industry generally with the ASPs. The Central Queensland Land Council challenged the validity of the legislation and were initially partially successful, although the Federal Court ultimately held the legislation to be valid. The mining industry, on the other hand, has been concerned that the ASPs were not delivering mining tenements in a timely fashion, particularly exploration permits.

The Queensland Government has now decided to revert to the Commonwealth regime.

Overview of the amending legislation

In essence, the legislation replaces the current Queensland ASPs with the Commonwealth 'right to negotiate' procedures for mining tenements. The main interest in the legislation is the transitional provisions, which provide some scope for the ongoing operation of the ASPs for certain existing mining tenement applications. The structure of the amended legislation will be as follows:

  • the Commonwealth regime will apply to all mining tenement applications made after 31 March 2003;


  • the ASPs will apply to mining tenement applications lodged after 18 September 2000 and on or before 31 March 2003;


  • the Commonwealth regime will apply for mining tenement applications lodged before 18 September 2000 (commonly referred to as the 'backlog' tenements) that have not been given a notification commencement date by the state government under the ASPs by 31 March 2003.


  • There remains a limited window, which closes on 31 March 2003, for mining tenement applicants to proceed under the ASPs if this is their preferred course of action. For applications that are currently in the 'backlog', technically there would seem scope for the applicant to be issued a 'notification commencement date' by the mining registrar prior to 31 March 2003. However, the issue of such notices is at the discretion of the mining registrar. Also, in the speech introducing the second reading of the legislation, there were indications of a policy position whereby backlog applications will now proceed under the Commonwealth regime.

    What is different

    While on its face the almost complete reversion back to the Commonwealth regime would seem a fundamental change, the reality is that many of the native title processes under the Commonwealth legislation are very similar to those under the Queensland ASPs. In some respects, the changes are actually minimal. The main changes that will result from the amending legislation are as follows:

  • mining tenement applicants will now need to rely upon the state to initiate the 'right to negotiate' procedure, which was automatically initiated under the ASPs simply by lodging the application;


  • the National Native Title Tribunal will now be the body that rules on disputes between mining tenement applicants and native title parties instead of the Queensland Land and Resources Tribunal. This may cause some inconvenience to mining lease applicants who will otherwise have their mining lease application heard by the Land and Resources Tribunal (ie those aspects other than native title); and


  • the current 'low impact' exploration permit regime will no longer be available, but exploration permit applicants may now have access to the Commonwealth 'expedited procedure'.


  • For the mining industry, the possible availability of the Commonwealth 'expedited procedure' for exploration permits is probably the major attraction of the amendments. The expedited procedures of the Commonwealth legislation provide for exploration tenements to be granted quickly without the need of proceeding through the right to negotiate procedures if certain criteria (essentially, that the permit will have a low impact on native title) are met. Tenement applicants in Western Australia and the Northern Territory have enjoyed considerable success recently in obtaining exploration titles via the expedited procedures.

    Time will tell as to how accessible the expedited procedure will be for exploration permit applicants in Queensland. It is understood that the Queensland Indigenous Working Group and the Queensland Mining Council have been unable to agree on minimum conditions to attach to exploration permits to ensure the criteria for the expedited procedure is met. Therefore it seems likely, at least initially, there may be several challenges by various native title groups to the use of the expedited procedure for exploration permits in Queensland. Further, the government has said in the second reading speech that applicants for such tenements 'must convince the government that they have adequate plans to manage the interests of traditional owners before the government will agree to use the expedited procedure for their application' and 'there will be no opening of the flood gates on using the expedited procedures'.


    Findlaw

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