Engage Early - Best practice Indigenous engagement – new EPBC Act guidelines

The Commonwealth Department of Environment (DoE) has published a guideline that outlines best practice strategies to engage with Indigenous groups called ‘Engage Early: Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)’ (EngageEarly).

‘Engage Early’ will apply to projects requiring approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), although the guideline contains useful engagement strategies for projects more generally.

Engage Early’ sets out the following strategies and provides examples of best practice of each:

• identifying and acknowledging all relevant affected Indigenous peoples and communities;
• committing to early engagement at the pre-referral stage;
• building trust through early and ongoing communication for the duration of the project, including approvals, implementation and future management;
• setting appropriate timeframes for consultation; and
•  demonstrating cultural awareness.

Notably for proponents, ‘Engage Early’ places a significant focus on engagement prior to referral of a project under the EPBC Act.  This engagement is to be in addition to the usual public consultation requirements for matters assessed under the EPBC Act or other State based approval processes.  Proponents are required to undertake genuine engagement with Indigenous people and report on this engagement as part of the broader environmental assessment documentation.

In addition to any requirements of the Native Title Act 1993 (Cth), Engage Early emphasises the importance of appropriate engagement with Indigenous people in circumstances where a project will overlap with areas that could be subject to a native title claim or determination in the future.

Another focus of ‘Engage Early’ is an intention to link environmental offsets that are carried out under the EPBC Act with opportunities for Indigenous people to fulfil the offset requirements using a collaborative approach – such as through an Indigenous enterprise that can use offset funding to carry out management activities to enhance the environment.

As a guideline, ‘Engage Early’ has limited legal force however as we have seen with similar guidelines issued by DoE, this document sets out DoE’s expectations as they relate to Indigenous engagement and is therefore an important guide for proponents of new projects.

We recommend that proponents, particularly those with projects that require engagement with Indigenous people and referral under the EPBC Act,  become familiar with the best practice requirements and where environmental offsets are required, consider opportunities to work with Indigenous people to fulfil these requirements.

Kate Swain, Liam Davis, Patrick Stewart

High Court rules mining leases do not necessarily extinguish native title

On 12 March 2014 the High Court handed down a unanimous decision in Western Australia v Brown [2014] HCA 8 that mining leases granted pre-1975 do not extinguish native title if the lease does not grant exclusive possession.  The High Court confirmed that mining rights and native title rights can co-exist and, importantly, clarified when native title rights will be extinguished by statutory rights at common law.

Background

The State of Western Australia (WA) entered into an agreement in 1964 with joint venturers to grant two mineral leases to develop iron ore deposits at Mount Goldsworthy (State Agreement).  The State Agreement was made pursuant to section 4(1) Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA).   Two mineral leases were granted to the joint venturers on 17 February 1966. 

In accordance with the mining leases and the State Agreement, the mining and township infrastructure was built over one-third of the mineral lease area.  The mine was closed in December 1982.  The town was closed 10 years later.

The parties agreed that, subject to extinguishment, the Ngarla People held non-exclusive native title rights over the land (subject to the mineral leases) to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land and to care for, maintain and protect from physical harm particular sites and areas of significance.

The State Agreement stipulated that the joint venturers would allow the State and third parties to have access over the mineral lease area provided that such access over shall not unduly prejudice or interfere with the operations.

The questions before the High Court were whether native title had been extinguished as a result of:

• the mineral leases conferring exclusive possession over the land
• the rights under the mineral leases being inconsistent with the native title rights and interests, or
• the joint venture parties exercising their rights to develop and construct mines, a town and associated infrastructure.

The Judgment and the effect of this decision

This High Court decision is relevant for statutory grants made pre-1975.  Leases granted after 1975 are dealt with in accordance with the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth).  Leases granted before 1975 must refer to the common law to determine whether native title has been extinguished.  By addressing the three questions before the Court, this judgment has clarified the test for extinguishment.

Addressing the first of the three questions, the High Court determined that the rights provided under the mineral leases at the time of grant did not give the joint venturers exclusive possession of the land.   On the contrary, the State Agreement provided that both the State and third parties were entitled to access over the land the subject of the leases.  Neither the mineral leases nor the State Agreement expressly provided that the joint venturers were entitled to both possess the land and have the right to exclude any and everyone from the land for any reason or no reason at all. 

With respect to the second question, the High Court ruled that rights granted under the mineral leases were not inconsistent with native title rights.  The court considered whether the existence of the rights granted to the joint venturers necessarily implied that the claimed native title rights and interests could no longer exist.  

The mineral leases did not give the joint venturers a right of exclusive possession.  In this respect, the mineral leases were no different from the pastoral leases considered in Wik Peoples v The State of Queensland (Wik) the mining leases considered in Western Australia v Ward (Ward) or the Argyle mining lease also considered in Ward.  The joint venturers were given limited rights to carry out mining and associated works anywhere on the land without interference by others.  Those rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land.

The High Court reasoned that at the time of grant of the mineral leases the native title holders could have exercised all of the rights that are now still claimed on the land without breach of the rights granted to the joint venturers.  Accordingly, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the native title rights and interests claimed.

With respect to the third and final question, the High Court overturned the decision of De Rose v South Australia [No 2] (2005) 145 FCR 290 (De Rose).  In the case of De Rose it was held that exercising the right to construct improvements on a pastoral lease was inconsistent with the native title rights and interests claimed.  The construction and improvements on the pastoral lease extinguished native title upon the improved land.  The High Court held that the case of De Rose should not be followed. 

The High Court clarified that although the joint venturers did not have exclusive possession of the land (for reasons discussed above), if the joint venturers were undertaking activities, such as building a house, that was inconsistent with the native title rights and interests, the mining lease rights took priority over the exercise of native title rights.  However, the construction of a house (or any other improvement) will not extinguish the native title rights and once the joint venturers cease to exercise their rights under the mining lease, the native title holders can continue to exercise their rights over the area. 

The extinguishment test

The High Court decision clarified that neither the grant of a mining lease itself nor the construction of improvements (including building houses and towns) on the lease extinguished native title rights.  The holder of the mining lease will need to consider the rights of the mining lease at the time it was granted to determine whether the rights granted extinguish any alleged native title rights and interests (and if so, to what extent).  The court has referred to this as an ‘objective inquiry involving the comparison of rights’.  A determination must be made at the time of grant as to what extent the mining lease rights are inconsistent with native title.  To the extent there is no inconsistency with the rights under the mining lease, the non-exclusive rights can co-exist.

What does this mean for mining companies and pastoralists?

The High Court did not distinguish the mineral leases discussed in this case from the pastoral leases considered in Wik and the mining leases and the Argyle mining lease considered in Ward.  Accordingly, this decision shares practical implications for both mining lease holders and pastoral lease holders. 

This decision has no ramifications for mining or pastoral leases where exclusive possession rights have been granted.  The leaseholder will have exclusive possession where the whole of the land the subject of the mineral lease grant or pastoral lease must be used in a way which would not permit any use of the land by native title holders. 

Importantly, where a mining or pastoral lease does not grant exclusive possession, the leaseholder cannot rely on exercising their rights under the lease as a means of extinguishing native title.  The leaseholders must consider the legal nature and content of the two sets of rights to determine whether they are inconsistent at the time of grant.  There cannot be degrees of inconsistency of rights.  The two sets of rights are either inconsistent or they are not.  To the extent of inconsistency, native title will be extinguished. 

Lyndal Hanrahan, Dominic McGann

New native title claims in the Hunter Valley and Lake Macquarie

Native Title claim NC2013/002 – Lower Hunter to the Central Coast areas

On 13 May 2013, the Awabakal and Guringai People lodged the Native Title claim NC2013/002 (Claim NC2013/002) with the National Native Title Tribunal (NNTT).  The Claim NC2013/002 covers an area of approximately 3923 square kilometres, and encompasses parts of the Lower Hunter Valley, Newcastle, the Central Coast, as well as all of Lake Macquarie and its surrounds (excluding areas in which native title has been extinguished).

Claim NC2013/002 was accepted for registration in the NNTT on 13 June 2013, and was registered on the same day.  Claim NC2013/002 was publicly notified on 9 October 2013.  The Native Title Act 1993 allows persons not included in Claim NC2013/002, to apply to become a party to Claim NC2013/002 prior to 8 January 2014.

Claim NC2013/002 satisfied the registration test on 13 June 2013, giving the Awabakal and Guringai people as ‘registered native title claimants’, the right to negotiate in relation to future acts, including mining, in the claim area where native title has not previously been extinguished, if the future act process is triggered.

If you propose to carry out a future act in the area included in Claim NC2013/002, you will be required to negotiate with the Awabakal and Guringai people.  The right to negotiate process will not stop your project or development from going ahead, however it gives the native title claimants a right to have a say about the project.  This process also enables the native title claimants to negotiate an agreement, which may include compensation.

Native Title claim NC2013/006 – Upper Hunter to Newcastle areas

On 19 August 2013, Mr Scott Franks and Mr Robert Lester lodged Native Title Claim NC2013/006 on behalf of the Plains Clans of the Wonnarua People.  This claim has not yet been accepted for registration by the NNTT.

This claim encompasses an approximate area of 11,358 square kilometres including parts of the local government regions of Cessnock City Council, Dungog Shire Council, Hawkesbury City Council, Liverpool Plains Shire Council, Maitland City Council, Muswellbrook Shire Council, Singleton Shire Council and the Upper Hunter Shire Council (excluding areas in which native title has been extinguished).

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain