A recent decision of the National Native Title Tribunal (the Tribunal) significantly expands activities that can be considered 'community or social activities' for the purpose of whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies. In Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another [2018] NNTTA 11, Member McNamara decided that the expedited procedure under section 32 of the NTA did not apply on the basis that the native title party ran cultural tours on the land the subject of a mining exploration application.

Normal process under the NTA

Under the NTA, where land is subject to a native title claim or determination, the government must give notice to the native title claimants or holders of any ‘future act’ proposed to be done in relation to that land (such as the grant of a mining tenement).

The government must then allow native title parties the opportunity to make submissions regarding the act, and the mining company applying for the mining tenement generally has to go through the ‘right to negotiate’ process with the native title party. The process requires the parties to negotiate in good faith to obtain the consent of the native title parties before carrying out the future act.

Expedited procedure

Section 237 of the NTA defines certain acts as ‘acts attracting the expedited procedure’. These are acts that are not likely to:

  1. interfere directly with the carrying on of the community or social activities of the native title holders;
  2. interfere with areas or sites of particular significance to the native title holders; or
  3. involve major disturbance to any land or waters.

Where the proposed future act is an act attracting the expedited procedure, native title parties are afforded four months during which to object to the expedited procedure being used, absent which, the government is permitted to grant the mining tenement without the mining company first going through the ‘right to negotiate’ process. If a native title party does object, the objection must be resolved by the National Native Title Tribunal.

Michael Ross v Lithium Australia

In Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another [2018] NNTTA 11, the Government of Queensland gave notice to the registered native title claimants (the Olkola people) of its intention to grant three exploration permits to Lithium Australia. The notice included a statement that the Government considered the grants to be acts attracting the expedited procedure. The claimants exercised their right to object.

The Tribunal found that the grant of two of the three exploration permits were not acts attracting the expedited procedure, on the ground that the grant of the permits was likely to interfere with the ‘community or social activities’ of the Olkola people.

The ‘community or social activities’ in question, included:

  1. formal and informal teaching of young people (such as cultural camps, school programs and a language program);
  2. land management activities (such as a recovery project for the golden-shouldered parrot, traditional patchwork burning and cattle mustering); and
  3. week-long cultural tours run by the Olkola Aboriginal Corporation, during which tourists are shown important sites and trees used for medicine, bush food and to make weapons. The Tribunal heard that the Olkola Aboriginal Corporation had plans to increase the frequency of the tours to about 80 days of the year.  (Note: The native title party considers the Olkola Aboriginal Corporation to be the representative body of its members, although it is not a representative body of the kind recognised in section 203AD of the NTA).

Member McNamara held that the proposed exploration was not likely to directly interfere with education activities.  Under Queensland law, Native Title Protection Conditions (NTPCs) are placed on exploration permits granted under the expedited procedure.  One of the NTPCs requires the exploration company to notify native title parties of any proposed exploration activities.  The Tribunal held that the education activities did not occur frequently, and so the notification requirement under the NTPCs would adequately prevent interference in the activities without the need for the ‘right to negotiate’ process.

On the other hand, Member McNamara found that given the likely timing of the exploration activities (in the dry season), this was likely to overlap with the tourism program. The potential timing conflicts would require close coordination, beyond that allowed by the NTPCs, to prevent interference. Therefore, the Tribunal held that the normal negotiation process should occur. This was only found to be the case in respect of two of the three exploration permits, where the potential interference was greatest.

Likewise, the precise timing of the land management activities (particularly the fire program) meant that the comprehensive negotiation process was necessary to prevent interference.

Can a commercial enterprise be a ‘community activity’?

In The Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/ Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (MG v Seaward Holdings), Deputy President Sumner expressed doubts as to whether business activities can be regarded as community or social activities, as they were only benefitting certain members of a community.  He added that the fact that the business employed native title holders did not make it a community activity.

This decision was applied in Nyangumarta Warrarn Aboriginal Corporation/Western Australia/ Diatreme Resources Limited [2013] NNTTA 152 to discount cultural tourism as a relevant indicator for the purposes of section 237 of the NTA.

Member McNamara referred to the unresolved questions as to whether and in what circumstances a business venture may properly be characterised as a ‘community or social’ activity discussed in MG v Seaward Holdings.  However, the Member did not expressly engage with any of Deputy President Sumner’s considerations when arriving at the view that the cultural tours run by the Olkola Aboriginal Corporation were ‘community or social activities’.  His reasons for adopting this position were:

  1. the Olkola Aboriginal Corporation is a registered charity whose objects include advancing social or public welfare, advancing culture and promoting reconciliation;
  2. the Olkola Aboriginal Corporation manages the land for the benefit of the native title holders; and
  3. the cultural tours had been established with the aim of providing employment for the native title holders, and as a means of showcasing and protecting the cultural value of the area.

What could this mean?

It ought to be no surprise that Aboriginal groups are taking the opportunity to share their unique knowledge and understanding of their country to run tours on native title land.

In light of the Tribunal’s decision, these activities could have implications for future applications for mining tenements. Even in areas with no significant sites and where exploration is expected to be non-invasive, the expedited procedure may not apply if cultural or eco-tours are being undertaken in the area.

It appears from Member McNamara’s reasons that whether the cultural tours are ‘community or social activities’ rather than simply business enterprises will revolve around the following factors:

  1. whether the tours are carried out by a body that sufficiently represents a native title party;
  2. whether that body is a registered charity; and
  3. whether the cultural tours provide sufficient benefits to the native title holders.

It is unclear from Member McNamara’s reasons whether these factors are an exhaustive list of elements or simply inclusive considerations.  In any case, these apparent requirements are likely to limit the effect of the Tribunal’s decision, where, for example, Aboriginal cultural tours are being conducted by individuals or companies. However, where Aboriginal corporations and native title groups are (or commence) undertaking tours on native title land, this could block the operation of the expedited procedure and consequently result in significant delays in obtaining mining tenements.

Member McNamara’s decision appears inconsistent with the approach of previous Tribunals.  There are counter arguments as to why a business venture run by a corporation would not be by, or for the benefit of, a broad enough group to be considered a ‘community or social’ activity.  However, this uncertainty is likely to continue until the Tribunal or a Court definitively determines the scope of ‘community or social activities’ in the context of business ventures for the purposes of section 237(a) of the NTA.

Please contact the authors for further information.