The right to negotiate and the miner's right: a case study of native title future act processes in Queensland

Author/editor: Finlayson, J
Year published: 1997
Issue no.: 139

Abstract

The paper examines the circumstances in which a small gold mining company (Union Mining NL) was issued with an s29 notification for a future act by the Queensland State Government during 1997. What is remarkable about this case is first, that apart from s29 notifications for Century Zinc Limited's (CZL) Century mine, Union Mining NL is the only other mining company in Queensland to have been issued with such a notification to date; second, Union Mining NL was not operating an enterprise of the size of Century mine and therefore represents another, and different dimension of the resource extractive industry; finally, Union Mining NL's gold mine at Georgetown eventually closed, despite positive negotiations with the claimant group within the right to negotiate process. In the company's assessment, the Georgetown closure was not a consequence of native title as a development risk, but flowed from inefficient and untimely administrative and decision-making processes of the State Government.

The research concludes that in relation to the native title process in Queensland:

  • these processes have been under utilised, apart from two exceptional cases (CZL and Union Mining NL);
  • that the Queensland Cabinet granted Union Mining NL an s29 notification as a 'test case' only;
  • that post-Wik, the Queensland Government's present administrative freeze on issues of new leases is tacit acknowledgment of the development risk now faced by the mining and pastoral industries from the issue of 800 potentially invalid leases;
  • that Queensland State Government bureaucrats and politicians actively discouraged industry from applying the future act processes and cited the experience of Western Australia as illustrative of the damage to industry from the future act process;
  • that the Queensland Government's political strategy of ignoring the native title future act processes has, ultimately, not been pragmatic. Nor did it follow the example of States like Western Australia where the majority of s29 notices proceed without objections;
  • that the delays of the Queensland Government to issue Union Mining NL with an s29 notice, combined with the administrative embargo on grants of new leases or conversions from exploration to mining tenements, eventually made it economically necessary to close the mine with a loss of 40 jobs.
  • that native title claimants must appreciate that the mining industry is not a homogenous body, but supports a range of industry types from small, individual 'tin scratchers', to multinational companies operating in a global economy. This means that packages negotiated between mining companies and native title claimants will need to realistically assess what is possible and reasonable for the industry body.

The research recommends:

  • that in order to facilitate industry development especially in mining, State Governments need to engage with native title processes in a timely and administratively efficient manner across all sectors of the mining industry;
  • that the mining industry is increasingly apprehensive about the capacity of governments to support industry development, not least because of the kind of political strategies currently used to deal with native title issues;
  • that more attention be paid to comparative situations (such as that between Queensland and Western Australia) for assessments of how State Governments might pragmatically respond to native title and mitigate development risks for industry;
  • that regional framework and project agreements may have the potential to facilitate the interests of both native title claimants and industry bodies over future act matters. A current example of such arrangements is the Far West Coast Working Group in South Australia. The agreement involves 14 mining companies and several native title groups with the objective of establishing work and site clearance protocols for minerals exploration as well as decision-making processes about what level of activity can occur in specific areas covered by the agreement;
  • that for all parties (government, industry and Indigenous groups) there are strategic advantages to be gained from being familiar with native title legislation.

ISBN: 0 7315 2574 4

ISSN:1036 1774

Updated:  15 June 2009/Responsible Officer:  Centre Director/Page Contact:  CASS Marketing & Communications