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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Native Title Amendment Bill 1997
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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Native Title Amendment Bill 1997
ACTING CHAIR (Senator Abetz)
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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
(JOINT-Wednesday, 8 October 1997)
- Committee front matter
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ACTING CHAIR (Senator Abetz)
- Committee witnesses
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ACTING CHAIR (Senator Abetz)
- Committee witnesses
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ACTING CHAIR (Senator Abetz)
- Committee witnesses
ACTING CHAIR (Senator Abetz)
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ACTING CHAIR (Senator Abetz)
Content WindowJOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND - 08/10/1997 - Native Title Amendment Bill 1997
CHAIR —I understand that the Queensland Mining Council and the North Queensland Miners Association have requested that they give evidence together. I welcome representatives of the Queensland Mining Council and the North Queensland Miners Association Inc.
The committee prefers all evidence to be given in public but, should you at any time wish to give your evidence or part of your evidence or answers to specific questions in camera, you may make application through the committee and the committee will give consideration to your application. I will point out, however, that any evidence given in camera may subsequently be made public by order of the Senate. I understand we have a submission from the North Queensland Miners Association. Do we have one also from the Queensland Mining Council?
Mr Walker —Yes.
CHAIR —I would invite you to make some opening remarks about the committee's inquiry into the Native Title Amendment Bill 1997 and, at the conclusion of your remarks, I will be inviting members of the committee to submit questions to you.
Mr Walker —I will lead this off. Firstly, we were under the impression that this parliamentary joint committee comprised 12 members. I notice here that we are addressing two members. An immense amount of work has been put into these submissions, and it concerns me a little that the message that we have to spell out is only being spelt out to two members of the committee. I am not being critical but--
Senator ABETZ —Could I just explain--
Mr Walker —I do not want to be in contempt of this inquiry either, but I really believe that it is a bit unusual that two members out of 12 are here. I understand Mr Grundy is the secretary and I am referring to parliamentary members--you have three now.
—Could I briefly explain to you, Mr Walker, and to
everybody in the room that the reason we have a large membership of 10 is
that there are a number of demands made on our time in relation to other
parliamentary committee work and constituency matters. As a result, not all
of us are able to attend every hearing. That is why for everybody who makes
a submission, that submission goes to every member of the committee and we
then read it at our leisure. There is also a Hansard record kept of
the proceedings and we are able to read the Hansard as well. I do not
think there is any discourtesy involved in those who unfortunately are
unable to be with us, and that goes for Cheryl Kernot, Labor, Liberal and
the National Party.
Mr Walker —I have been involved in many of these inquiries and it is a bit disappointing when an immense amount of work has been put into a submission and only two or three members of the committee are present. Anyhow, I did not come here to hurt your feelings or to have an argument. Fortunately, Mr Entsch is familiar with our organisation and he will understand the reason for these preliminary comments.
Mr Chairman and gentlemen of the committee, the North Queensland Miners Association represents the interests of the non-corporate sector of the North Queensland Mining Association which has been active in this role for a long period of time. Within our area of influence, there are around 850 granted mining leases with an output in the vicinity of $500 million per annum. This does not include the major producers such as Comalco at Weipa, Kidston and suchlike.
According to the Queensland mines department records at 31 December 1996, there were in excess of 150 mining operations within the area with a work force of approximately 700. Since that time, a number of these operations have been forced to close due to the cessation of grant of new mining leases by the Queensland Department of Mines and Energy. Since publication of the original Wik High Court decision, this association has strongly advocated the extinguishment of native title claims to mineral resources in Australia on the grounds that, unlike their historic association with the land, the original indigenous population of this country has no history of association with or record of usage of our vast mineral resources, regardless of the outcropping nature and surface expression of many of these mineral deposits.
Had the original indigenous population of this country developed the use or even a primitive method of mining and processing of minerals and metals similar to the metallurgical practices of the ancient Egyptians, Greeks and Romans or the Incas and Aztecs and other suchlike ancient civilisations, then and only then would the indigenous Australian claimants for return of their land have a moral and lawful claim to our mineral resources. It is indeed most unfortunate for the future economy of the Australian mining industry--which presently contributes around $40 billion per annum to our gross earnings--that, for purposes of short-term political expediency on both sides of politics, the proposed amendments to the Native Title Act 1993 presently before the Commonwealth parliament do not reflect what is in fact a true and accurate situation in relation to the bona fides of native title claims over the mineral resources of this country.
Regardless of the ferocity of the current political debate in regard to the overall Wik issue, this association continues to be strongly opposed to the grant of native title over Australian mining resources. However, in view of what appears to be the inevitable or eventual grant of native title over land containing mineral resources, this association has no alternative but to face the inevitable together with the disastrous economic consequences to the mining industry which will surely follow.
In an endeavour to limit the impending economic damage to our members, this association has compiled a short list of what we truly believe are essential amendments to the proposed amendments to the Native Title Act 1997 as recently circulated, which we now submit to your committee with the view of gaining unanimous support for inclusion therein.
Following this preamble is the proposed amendment to section 26B. The proposed amendment spells out how the new amendment would read--I do not want to read that out. We say that, by virtue of this amendment, this will transfer the jurisdiction of advertising and invitation for submissions from other interested or affected parties for consideration by the relevant minister from the Commonwealth to the state or territory minister, as is set out in clause 5 of section 26C covering the opal and gem mining section of the proposed amendments to the Native Title Act.
The particular relevance of this proposed amendment to section 26B is to ensure that the time frame for the grant of this category of mining lease will be effectively shortened, as the North Queensland section of the mining industry relies on smaller short-term leases which they are obliged to regularly replace as each gold or tin alluvial area is mined out. Due to the cessation of issue of any new mining leases applied for after 1 January 1996 by the Queensland Department of Mines, the gold and tin mining industry in this state is rapidly exhausting current mining areas. Unless the issue of new leases is immediately resumed on a very short time elapse basis--that means on a basis that the industry will not have to wait 12 months or two years for grant of the lease--a large section of this industry faces the likelihood of almost certain collapse.
This association is of the firm belief that this inevitable catastrophe may be averted by transferring ministerial jurisdiction in regard to determination from the Commonwealth to the state, as is the case under section 24C amendments proposed in regard to issue of gem and opal mining leases. It is to be expected that due to the lesser degree of complexity involved in the conditions of determination--that is, by the Commonwealth minister--the time lapse between application and grant of an alluvial gold or tin mining lease by the state or territory ministers will be considerably less with the possibility of survival of this section of the mine industry. The main thrust of this is that under the state jurisdiction, as is already set out in one certain class of mining lease to be granted, the time frame for grants will be much less.
There is another proposed amendment to section 183--`Assistance from the Attorney-General'. I will not read it out, but proposed clause 1 of section 183 will empower the Attorney-General to provide assistance to companies which find themselves in dire financial circumstances, as well as individuals, as a result of the disastrous financial effects of the introduction of the Wik legislation. The main thrust behind this suggested amendment is that a lot of our members will eventually be in very serious financial difficulties.
I was interested to hear a lady who is here from the alliance group. She tiptoed into the water of this area. It is a very serious situation that is facing the smaller end of the Queensland mining industry. From information I have, from Western Australia and other similar mining states, they have exactly the same difficulties in those states. We go on to say that it is of particular importance that an additional clause be inserted in this section whereby the Attorney-General will provide financial assistance or compensation to beleaguered members of the mining industry. This covers members from families, small groups to syndicates, and small companies. Even some of the big ones will be in serious financial trouble. It is only a matter of time.
I go back again and say that the Attorney-General will provide financial assistance or compensation to beleaguered members of the mining industry who are facing severe financial hardship, as a result of the damaging effects of the introduction of Wik legislation, together with financial assistance for legal protection against harsh and unconscionable treatment from banks and finance companies.
As chairman of this organisation, I have been through the collapse of the world tin industry. We had 144 tin producing operations in North Queensland in 1986; within 12 months we had four. A very large number of those traditional third generation tin mining operations had to liquidate. The main reason for that was--for your information, gentlemen--it costs about $1 million to start up even a small mining operation. Around half of that money is in contribution from the operator or the company. The other half, or possibly 60 per cent, is represented by leased heavy equipment or heavy equipment that is bought on finance facilities provided by avaricious financial organisations, usually with Sydney or Melbourne addresses.
As a result of the unforeseen collapse of world tin prices, the world tin industry collapsed. I know because I was a Commonwealth member of the International Tin Council in London at the time. About 50 to 100 of those operators went to the wall. The banks and the finance companies took their houses and their small properties, and the petrol companies and the fuel companies belted them. We, the executive of this association, are very fearful that this is going to happen again.
Anybody can make a mistake once and they can be forgiven but, if it happens again, you are considered very foolish. The situation is that this industry has to take measures, even pretty firm measures--we have not quite worked out what they will be because we are watching the developments of there very closely--as to how this industry is going to protect itself.
We go on then to suggest a proposed amendment to section 44(a). It is in relation to access for traditional activities, which has already been discussed here, and I listened with great interest to the previous speakers on this.
The relevance of this proposed amendment to section (a)--that should read 44(a) is to ensure that only bona fide indigenous claimants who have had long-term physical association with the land may claim access to leasehold areas for traditional purposes. This would limit claims by ineligible and indiscriminate indigenous claimants whose claim would in the long-term most probably be rejected and as well would limit the number of itinerant indigenous groups traversing mining leases. These include in many cases operation of heavy duty mobile plant and haulage trucks and represent a potential danger to the safety of these usually unannounced indigenous visitors. The mining industry is not on for denying access to bona fide indigenous claimants who have regularly had physical association--continual physical association--with the whole or part of the area that is covered by their claim.
We can perceive here a situation where this area of the whole Wik legislation is going to go into a sort of limbo period while all these problems are sorted out. I do agree with the lady from the alliance this morning who said, quite rightly, `We do not have the multimillions of the offshore giants, the Centuries and the CRAs and the Rios and BHPs.' The mining industry, the smaller end of the Queensland mining industry, is a bit like Queensland small business. It employs a lot of people but individually it would not have similar outputs to the major end groups. But it is a very powerful economic industry in Australia really. We do not have access to lawyers at $300 an hour or accounting firms. Michael Pinnock has something in his bag there that cost $3,000 to have compiled.
A previous government bought in this Native Title Act. The present government has inherited it and if this government happens to pass, another government will inherit it. But I believe it is up to the government to really pay up. Had the government bought in extinguishment of native title--the previous government were planning to do that, but then somebody told them, `Hey, you had better watch this because it will cost, what is it, $40 billion or $50 billion in compensation.' The alternative was to go through this mishmash of amendments that is on the table presently, which is of no use to the pastoral industry or the mining industry.
I might say not one individual Aboriginal person is going to get one acre
of land out of it individually. The land has all been given to these
community groups who control this through a hereditary hierarchical
situation, but in my area there are a lot of very fine Aboriginal citizens
and they complain to me, `Why can't we get five or 10 or 20 acres of land;
there's plenty up there.' But under this amendment, an individual indigenous
person cannot claim individual land. That is something that should be looked
at too. Our association is not a racist association in any way. In fact, our
association employs two or three members who are indigenous people. I want
to make it quite clear to anybody who is listening that anyone suggesting
that the North Queensland Mining Association is a redneck racist
organisation can go and put his head under the water, right. It is not.
Senator ABETZ —That is a bit tamer than I was expecting?
Mr Walker —I must be polite in front of Chairman Entsch. To get back to the serious strain, the situation here in the mining industry is similar to that of the pastoralists. It is not only the intermediate and smaller end of the mining industry that is involved; the bigger mining companies will eventually be affected because--it is very important that your committee is aware of this--as was slightly mentioned by the graziers, the mining industry is in exactly the same boat. Some mining industries, large and small, have proven ore reserve worth several hundred million dollars.
For the information of the panel, we may as well have $300 million worth of leather banknotes because at this stage this mineral resource asset backing, if you want to call it that, is almost worthless because every financial institution is sitting on its hands waiting for Wik. We know that these present amendments are not really going to solve the problems. I am saying that it is time the government took this over. Instead of spending $40 billion on compensation, which apparently it would cost them, they should start providing a bit of funding for our mining industry, which provides over $40 billion of revenue a year and pays for our national deficit. We have many extremely serious problems confronting our industry.
I have one other point to make before I sign off, Mr Chairman, and that is a proposed amendment to section 25, which is the overview of subdivision. We want an additional clause inserted in the proposed amendments to the Native Title Act 1993 within section 25 which provides that the Commonwealth minister will ensure that provisions of this section of the act are complied with and all stipulated procedures are completed within a period of 12 months from the original date of application of the native title claim.
This proposed amendment is to ensure that the Commonwealth minister is limited to a period of 12 months to make his determination in regard to a native title claim in regard that the relevant state mines minister may then be in a position to commence the due process of the subject mining lease application under the provisions of the state mining act. The main thrust of this proposed amendment is to ensure that the time lapse between application and eventual grant of a mining lease by the state mines minister does not continue ad infinitum.
I understand that there is a fair deal of ignorance in relation to the grant of mining leases. It must be clearly understood that under these amendments the federal minister has to satisfy a very lengthy procedure before he makes a determination that the land is available for application by a leaseholder. Once this application has gone through the Commonwealth bureaucracy, the federal minister writes to the state minister saying, `Yes, that mining lease area applied for is available for take-up.' We then have to go through a similar situation with the state mines department.
This is the problem. That is why we want to ensure that the time lapse between application and eventual grant of a mining lease by the state mines minister does not continue ad infinitum. The inherent danger to the mining industry should this time limit not be included in the proposed amendments is that, in the almost certain event of a large volume of native title claims being lodged with the Commonwealth government following gazettal of the proposed amendments to the Native Title Act 1993, the situation could develop in that it could take many years for the relevant Commonwealth authority to process these claims, during which time large sections of the mining industry would be denied the right to continuity of ore supply, with consequent uneconomic operation and eventual shutdown causing an enormous loss of both jobs and export earnings.
I commend this submission for earnest consideration by your committee. We would like to see some pretty firm action taken. I am well aware that this committee is only able to make recommendations but hopefully some notice may be taken of these submissions. All I can say is that it is time the government really grappled with this problem. As you can see from the evidence given here today, I believe this is possibly the most divisive bit of legislation that has ever hit this land.
We recognise that it is almost an impossible task to sort it all out but, somehow or other, this country has to stagger on and people have to remain in employment. Exports have to be produced to pay for our national deficit, with the mining industry being the main payer. This government owes the mining industry at least the duty of seeing that it does not collapse.
There will still be major mining operations running on but, when you have
a look at them, they are all offshore companies. It is the Australian owned
companies that are getting hurt. The multinationals like Rio Tinto, Pasminco
or Century have the millions--Century found $60 million just bang, bang,
bang like that--but the smaller mining industry would be lucky to raise $6
million because of the uncertainty of this Wik legislation. Thank you, Mr
Chairman and members.
CHAIR —Thank you, Mr Walker.
—I might just say to the lady senator there that, when I
sat down here, I remarked that I was very disappointed that of the 10
members of the committee only three were present when we put this submission
forward. There is a lot of work involved in drawing up and drafting these
submissions. We have all had to travel a long way; some of us live inland;
and Michael has had to come from Brisbane. I do not want to insult the
committee but, if there is a panel of 10 people on the committee, then I
think 50 per cent presentation would not be too bad. At the risk of being
thrown out by the chairman, I will now hand over to Michael Pinnock.
Senator FERRIS —Mr Walker, I apologise that a bathroom break required my short absence.
Mr MELHAM —How many members of your association are on the executive, Mr Walker?
Mr Walker —Seven.
Mr MELHAM —And how many are here today, two?
Mr Walker —That is all that was planned to be here. The members of our executive are out on their mining operations.
Mr MELHAM —Some members of this committee also have other duties and cannot make it to every single hearing.
Mr Walker —I can only expect you to be angry with me.
Mr MELHAM —I am not angry. At least you are up front.
Mr Walker —I am up front all right.
CHAIR —Order, please. Mr Pinnock, do you have any comments?
Mr Pinnock —I have a separate submission to put. If the committee has questions to put to the North Queensland Miners Association, you might wish to choose to complete that; otherwise I am happy to give my presentation.
CHAIR —Go ahead, Mr Pinnock.
Mr Pinnock —I just want to explain my own appearance and role here. The Queensland Mining Council obviously represents the statewide mining industry. A formal presentation has probably already been made to this committee on a national basis, and Queensland has been part of the national submission.
Mr MELHAM —That is the Minerals Council?
Mr Pinnock —That is the Minerals Council, yes, and we were party to that particular submission. My appearance today is not in respect of our national presentation but is specifically because we are here in Cairns. It gives me the opportunity to speak to the position of what the association here calls the `non-corporate miners'. I am representing today their particular interests and the problems that I see they might be facing, as opposed to our broad approach which is covered by MCA.
Secondly, I have put some background notes in the written submission, which obviously you will have time to read later on and many of which Don has already covered, because I think it is important for the committee to appreciate that there is a completely different segment in our industry outside of gemfields, for example. We should differentiate between the miners who work up here--we describe them as the non-corporate or family miners--and companies such as the BHPs and Comalcos, most of whom are my members, because they really are in a totally different position.
While we should take into account that this is extremely complex for
everybody and with particular problems for the Aboriginal people in terms of
resources and costs, the main reason for my submission is that I would like
to think that the smaller miners up here are seen in exactly the same light.
As Don said, we have found in trying to work with them over the past 15 to
20 years that they simply do not have access to the bigger associations, the
lawyers, the bankers and the various other people they need to consult with.
I want to be sure that the committee understands that we regard these small
miners working up here, the family miners, as needing some special
consideration. My view is that the government has tried to address that
situation in a number of ways in these amendments, and I want to talk just
briefly about those ways.
Mr MELHAM —Have you seen Mr Savell's submission from Western Australia?
Mr Pinnock —No, not yet, but I suspect it would probably be a similar situation. That is AMEC?
Mr MELHAM —Yes.
Mr Pinnock —There are a number of areas in Australia we could link together here, such as small miners in Central Queensland. I suspect that Mr Savell is talking about a lot of the smaller miners in Western Australia. However, I still think that you would find that the small miners in Western Australia, particularly in the gold sector, are more likely still to be corporates rather than the individual people that tend to work in North Queensland. It is just a distinction I make in terms of the position that they are in. One of the points I make is that, when we look at what is required under the processes for meetings, negotiations or whatever they might be, it is particularly difficult for the small mines up here to even have people come off their sites to attend meetings and negotiate. If they are not there, then that operation simply is not working. It is not as though they have other people that they can leave to carry on working the mine.
Rather than dwell on that too much, Chairman, because some of that is obviously in the written submission, I would like to raise with the committee some specific issues that we have identified and that we think would be worth consideration by your committee when you are looking at the specifics of the act. The first one I raise is in the context of both the private negotiations and compensation.
Even with the advice of some legal assistance in Brisbane, we believe that the position currently exists with the amendments that, if a small miner, or any other miner for that matter, enters into these private negotiations--and, of course, in the amendments there are now three separate private agreements: corporate area and the small private ones--it seems to us that there is nothing in the amendment at the moment which prevents your dealing with one group, reaching an agreement, signing off, agreeing to a compensation package and then later on having another group, that is, a different group, coming back to you with a similar claim. It would appear that you would be liable for compensation again.
It seems to us that, unless we have missed something in the act, there is nothing that actually prevents your being hit a second time--and I guess, therefore, a third time--for compensation for the same area. It seems to me that the act should have some means of protecting people from signing off in good faith, with agreement on both sides, on a private agreement and then finding later that they can be approached for another agreement and separate compensation. Unless we have missed something in the act, that appears to be the case and, therefore, I have raised it in the context of: would the committee please look at that?
If they find that we are right, we obviously feel that would be a demonstrably unfair situation and we would like the committee to address it. That actually is the one specific key area that I am raising in support of the submission from the North Queensland miners, which has got other amendments. I have not referred to any of those since I am following them and they have made their own separate submission.
It is the government's clear intention to exclude a number of them from the right to negotiate process--it is quite clear, if you read the amendment. I am not sure how well it will succeed. It is a clear policy position that they have adopted. We applaud that because we do think there is some merit--I guess other people here may well have submitted against that proposition--in trying to exclude the smaller operations from the right to negotiate, not just on the basis of cost but on the basis of time delay and the ability to actually come off sites and negotiate.
In respect of that compensation, our second point on that one issue is
that if the legislation requires that a second round of compensation be paid
it seems to us to be quite unjust if it is the small miner who has to pay
that compensation. That surely should be government compensation if it is
required by legislation. So I make the distinction between the--
Mr MELHAM —My understanding, Mr Pinnock, is that, if you utilise the provisions of the Native Title Act and it gets ticked off, if people come along later on it is the government that is liable subsequently not you. Maybe I am misreading the act.
—Sorry, I may well be wrong too because there are some
fairly complex areas in there. I was saying that, if you make a private
agreement and pay compensation, as it stands at the moment that would be
outside the act if you have gone to the tribunal and you pay compensation.
If it is the case that later you are required to pay second compensation,
that seems to us to be quite unfair.
Mr MELHAM —That is why my understanding is that, if you come within the act, you have the protection of the act; if people come along later, then it is the government party that will have to pay the compensation, if it is established. That is the incentive for not doing deals outside the act.
Mr Pinnock —Yes, that may well be the case. But the point I am making is that we are being encouraged--and, in fact, I have to say in the last 18 months we have encouraged our members--to enter into private negotiations as a means of getting quicker agreements than going through the act, because the act has been so slow. It is not a criticism of the tribunal. It has been so totally overburdened with claims that roughly only one in 100 lease applications come out the other end, whereas exploration goes through fairly quickly. There is a distinct incentive to do private agreements outside the tribunal. One of the merits we see in some of the new amendments is that it may well encourage people to work within the act and within the tribunal, whether they are state or federal. Nevertheless, we still believe there is merit in miners generally entering into private agreements.
One of the things that I believe will happen in respect of the small miners here in North Queensland is that, bearing in mind what we have said about their capacity for time, money, resources and the rest, it is going to be nearly impossible for them to deal with the multiple overlapping claims that we face. That is a difficulty for everybody, particularly the big companies. It is absolutely impossible for an individual miner to have any hope of coping with multiple overlapping claims. Therefore, on that basis we think there is merit in some of the proposals currently in the amendment bill which make for stronger sifting mechanisms for claims to try to reduce the number of multiple and overlapping claims.
From our own discussions in Brisbane with a number of Aboriginal groups I know that they are just as concerned about that, too. I suspect that what we will see is a greater role for the representative bodies, and I personally support that in terms of most claims. But that presents a particular problem for the small miner up here who then has to deal with those representative bodies. It is quite different from the corporations--large or medium--who I suspect will actually favour that way of doing things, and that is how we have approached it today.
If we are going to continue to encourage people to make these private agreements as well as going through the tribunal, I think the compensation point I have raised and the multiple overlapping claims are actually a major deterrent to them doing that. I would like to see every option open and available. Indeed, in many cases, it is probably favourable if they can reach an agreement with the local Aboriginal people on their own without going through the whole system. Then the merit of the amendments cannot be put in, which is rather like the industrial relations system where you can then register any private agreement that you have and it becomes a contract. I think that amendment has real merit, and we support it very strongly.
We have a point in relation to the right to negotiate. I will not belabour it because it is also a general point that affects the rest of the industry. The small groups up here feel very strongly about it and we are supporting them in this particular position. When eventually we get it sorted out as to whether pastoral leases have exclusive tenure or not and therefore what their status is, their belief is that the right to negotiate should not apply if it is ultimately found that pastoral leases do have exclusive tenure and have therefore extinguished native title. Their view is that the right to negotiate should not exist at the same time. It currently does. I know that there is great political opposition to it being removed. But their argument is that there is no logic to that continuing and if, indeed, it is ultimately found--and it would obviously be only those pastoral leases found to have exclusive tenure--then the right to negotiate should go with it.
There are two other points on specifics. The government has made a specific reference to approved exploration being exempted from the right to negotiate. I am quite puzzled by the procedures. I raise this so that perhaps the committee could have a look at it and if in their judgment they believe it presents a problem then they can obviously raise this with the government, too. The way the amendment is written it is the obvious intention of the government to allow an act or a class of acts to be exempted as exploration permits from the right to negotiate.
But then there are four conditions which follow which seem to say that individually each one would have to be tested. Yet in the explanatory memorandum that was supplied with the bill it does say that, for example, a state could apply for all exploration to be exempted if it has certain rules and conditions in place. I suspect that Queensland would probably be one of the states that would at least attempt to put up an exploration regime that the Commonwealth could look at to see whether that is suitable for exemption. I then do not understand, the way the legislation is, how the individual testing that is called for could possibly apply if it has been given a broad, across-the-board exemption.
There may be a simple answer to that but it looks very unlikely and impractical to me. I would like to leave it with the committee to say that if my understanding of that is correct perhaps you could work that through and see whether that is practical at all. If, as the government is suggesting, a state can apply for exemption of total exploration, then I do not understand how the other procedures would work. If each individual exploration for a miner has to be tested, I think the conditions are so onerous it is very unlikely any of them would be used. Time will tell, but we do not really see that as achieving the outcome the government is obviously after.
I will make a quick point on costs and outlays. Everybody outside of the
large corporate area, which does not expect to get assistance although would
like it, is worried about how they will get assistance. The government has
clearly moved to increase the scope of assistance they will offer for both
Aboriginal people and individuals. In section 183 it makes it quite clear
that there will be an opportunity for people to claim costs. There is now no
reference to hardship. Section 4 specifically refers to `subject to
guidelines' which the minister will write. I certainly have not seen the
guidelines. Maybe they do exist, but I have not seen them.
CHAIR —They do exist.
Mr Pinnock —Okay. What will be critical to the small miners is what those guidelines say and whether people like the family miners up here would qualify. In my submission I have raised that the guidelines hold the key here rather than the legislation. Perhaps the committee could look to ensure that people like the North Queensland mining members would in fact qualify with the other groups.
In summary, I am supporting the amendments which have been detailed in writing but have not been spoken to today which the other group has put forward as a possible means of ensuring that the exemption levels that the government is trying to achieve are achieved. We certainly support that. I have raised primarily the question of the double jeopardy on compensation, the question of multiple and overlapping claims, the likelihood of the exploration section being used in its outcome and the financial assistance for the small miners.
CHAIR —Thank you very much.
Mr MELHAM —Mr Walker, you want certainty for your industry, don't you?
Mr Walker —Certainty of continuity of all supply is what we are after.
Mr MELHAM —The last thing you would want is for the parliament to pass legislation that was then subsequently challenged successfully in the High Court. That would create chaos for your industry, wouldn't it?
Mr Walker —We have already been through four years of that, haven't we? The challenge.
Mr MELHAM —The current Native Title Act was challenged in the High Court. The High Court upheld it 7:0, didn't they?
—Yes and that has really caused an immense amount of
damage already to the financial provision to the smaller mining industry. It
is the doubt, the challenge. Somebody mentioned it here this morning and I
was quite interested to hear it. Everybody believed that this appeal to Wik
would be successful. What happened? Even the Queensland government and the
West Australian government went on issuing leases as normal.
Mr MELHAM —Their lawyers got it wrong, didn't they?
Mr Walker —That is right.
Mr MELHAM —So wouldn't that make you a little wary of believing their lawyers when they say, `We are going to give you certainty if we go down this route?'
Mr Walker —This is it.
Mr MELHAM —I just want to give you a couple of examples. In 1982 the Queensland government lost a High Court challenge by Mr Koowarta over the Racial Discrimination Act. In 1988 the Queensland government lost a challenge in Mabo No. 1. In 1992 the Queensland government lost a challenge in Mabo No. 2 in the High Court. In 1996 the Waanyi defeated the Queensland government again in the High Court. In Wik the Queensland government lost in the High Court 4:3. You would be a bit wary if you were getting assurances from the Queensland government, wouldn't you, that that provided you certainty given that track record?
Mr Walker —I have to be honest about this because our association covers both sides of politics. We found the previous Goss government really fair. They did their best. They were the ones who really thought that what they were doing was legally right. The present government of Queensland--I do not care whether it is Mr Borbidge or Mr Beattie; I should be careful; I should not say I do not care--is hamstrung and, I mentioned this earlier, until the Wik situation is clarified we are fearful that this could go on even to a double dissolution. We are still in the grey zone. Until this is clarified the state mines ministers are really knackered. They really cannot make a move.
Mr MELHAM —You would be aware that in Western Australia, for instance, the Western Australian government lost the High Court challenge in 1995 over the Native Title Act and that they started using the provisions of the Native Title Act. There are many projects that have proceeded under the umbrella of the Native Title Act.
Mr Walker —Under section 29. The situation there--and I am very familiar with it--was that there were some members of the Western Australian crown law department who said, `We do not really think that you are going to have a win here.'
Mr MELHAM —We got advice from Western Australians--
Mr Walker —Are you a Western Australian?
—No, I am a New South Welshman.
Mr Walker —I thought you might have been from WA.
Mr MELHAM —I believe in secession for Western Australia. Mr Walker, we had evidence the other night, which is not disputed, from officials from Western Australia that they predicted the outcome of the Wik decision. So there was a policy consideration in Western Australia to work within the framework of the Native Title Act pending, obviously, amendments.
Mr Walker —The Western Australians foresaw that the appeal may not have been successful and they were right, but the Western Australians are still in the same boat as the Queenslanders and every other member state because these amendments have come in and they have completely overridden the original section 29.
Mr MELHAM —They have not overridden it yet because it has not been passed by the parliament. What I am suggesting to you is that whilst they are pursuing their policy changes the Western Australian government has been quite conservative and quite smart in using the current law for development to proceed in Western Australia while they are pursuing amendments, which is different from what Queensland and indeed New South Wales, under Bob Carr, have done as well.
Mr Walker —The Queensland crown law department advised the Queensland government or cabinet that they truly believed that the appeal would win--they would win. They did not win. It is well known that if you are in a law case one lawyer will say you will win and the other side will say that you are not going to win.
Mr MELHAM —You are not interested in argument between lawyers. You want certainty for your industry, do you not?
Mr Walker —We must have certainty of economic continuity of all supply.
Mr MELHAM —Are you also a great believer in private property rights and the protection of private property rights?
Mr Walker —Yes, I belong to private enterprise.
Mr MELHAM —Do you draw a distinction on the basis of the colour of people who have property rights?
Mr Walker —That is a fair question.
Mr MELHAM —Of course it is a fair question.
—And I will answer it. I have already said here that
this association is not racist. Large numbers of indigenous people earn
their money and have more for a long period of time--through two or three
generations--from the mining industry. We do not deny them and that is why I
said that the present amendments are not going to help Aboriginal indigenous
people individually. Not one of them is going to get 10 acres of land. Quite
a lot of these indigenous people earn quite good money, if they are in
employment. They can go and build a house but they cannot get a bit of land,
freehold or even DOGIT land in their own name. For that reason, both
governments have let the Aboriginal race down, I am telling you.
Mr Harris —Mr Chairman, can I ask--
Mr Walker —Hang on, I have not finished here, Len. I appreciate the questions because it gives us a chance to elaborate.
Mr MELHAM —Of course. Your respect for private property rights is a respect for private property rights across the board, is it not? You do not draw any distinctions?
Mr Walker —I am trying to say that we do not deny the indigenous people from--
Mr MELHAM —From having property rights.
Mr Walker —being allocated land.
Mr MELHAM —No, but you would also respect their property rights; is that a fair summary?
Mr Walker —If somebody has got land, one would normally respect their land rights.
Mr MELHAM —You are aware that the mining industry recently took the former federal government to court because they argued that the Coronation Hill project that was made part of the Kakadu National Park took away the property rights of the Newcrest mining company. You are aware also that the High Court held four to three in favour of the mining company that there was not just terms compensation in the acquiring of those property rights by the government. I am just using that as an example that the mining industry has gone all the way to the High Court to assert their property rights against the Commonwealth government.
Mr Pinnock —Equally, if I might say from the point of view of QMC and the national organisation, we accepted that within this legislation there must similarly be compensation if native title rights are ultimately declared.
—But you are also aware there is a constitutional
requirement that just terms has to be afforded if you are acquiring those
rights; otherwise there is a question on its constitutionality.
Mr Pinnock —Yes, I do not think that is a point we would argue with you at all.
Mr MELHAM —Mr Pinnock, you said in your submission today that you were concentrating on family miners but that you support the Mining Council's submission in relation to the larger mining companies. I want to ask you specifically about the right to negotiate and the reduced time frame for negotiation under this amendment act. Do you think that is going to be conducive to the industry establishing long-term and ongoing relationships with indigenous people on the ground?
Mr Pinnock —That is a very hard one for us. I think it is a fair intent of the government to say that we must try to shorten the timetable. I discussed with your then government when the act came in the problem that, although time limits were put on--six months, four months and so on--nothing happened if those time limits were exceeded. We saw that as a problem, and I suggest that it has been a problem.
It appears that the government's suggestion to solve that this time is to allow for ministerial intervention. For example, in our own negotiations currently with ATSIC on an Aboriginal exploration agreement in Queensland, certainly things take an awful long time by our standards and it is a problem for us commercially. I do not think it is unreasonable for the government--or for any government, not necessarily this one--to say that there must be some time limits. Yes, of course it is likely to cause some difficulty with the parties, particularly if the party is the Aboriginal party and they say they want more time, but it is a difficulty of finding a balance between the commercial interests and the total time lines.
We estimated that, with the six months-four months that was in the old act, you could be close to a two-year delay on any lease from exploration to lease standards. Some leases have taken more than that to go through the tribunal currently. I do not think it is unreasonable to support a move to somehow try to shorten the time limits but I accept that, in so doing, it may well cause some difficulties along the way. We think that what is currently proposed is in fact not unreasonable.
Despite what some people have said here today about being the only ones that carry the burden, really and truly it is the mining industry that has the close everyday working relationships with the Aboriginal people. In almost all cases, wherever our mines are, we have an Aboriginal community. We are used to working with their groups and their people, and we always will be. It is almost impossible for us to have a mine anywhere without working with them. So we are conscious of the need to have that ongoing relationship, but I cannot believe that putting in reasonable timetables would necessarily disrupt that.
—Is the early ministerial intervention that is proposed
in these amendments something that was put forward by the mining industry?
Mr Pinnock —No, it was not actually. We did not ask for that at all. We did ask for a time line, and I mentioned earlier ones where the tribunal gave them a certain time but did not say what happened if they did not meet it. We certainly asked for tighter time lines but, no, we did not suggest that at all in our submission.
Mr MELHAM —So that is something that came out of left field.
Mr Pinnock —It came from government or somewhere but not from us.
Mr MELHAM —Not from the mining industry. Is the proposed sunset clause something that the industry put forward to government or did that come from other quarters?
Mr Pinnock —I would like to just double check. I do not think we put forward the sunset clause, although I stand to be corrected. It is just possible that nationally we might have done, but I do not think we did. We do not think a sunset clause is unreasonable but, in our own submission, our basis of coming to the government--and to the opposition for that matter--was to say that we think there are five or six key principles that should be reflected in any new amendments or legislation. At the end of the day, when we suggested streamlining the process to give greater certainty, we were certainly talking about greater certainty for everybody; and we were certainly talking about understanding the rights and the titles of everybody, whomever they might be, because we saw that as a principle of land management. We worked from those sorts of key principles.
In a number of the meetings I have had with Aboriginal people, the groups have tended to say, `Hang on, we understand what you guys want but it is weakening what we have already got everywhere. What is in it for us?' My answer is that, if you can streamline the process and make it work, this act may deliver native title in a reasonably speedy way as well as helping those who have developments that they want to get up and running.
Mr MELHAM —But you would much prefer time frames under the Native Title Act than, for instance, the alternative which is common law claims that can drag on like Mabo did for over 10 years.
Mr Pinnock —Most certainly.
CHAIR —Just excuse me, Mr Pinnock, I just have to go for a quick walk. I will hand over to Senator Abetz until I get back.
—What I am suggesting is that this proposed sunset
clause on this act is really not a bonus or something that the industry
would really look forward to because it is only a sunset clause on the use
of this act. Common law claims are still alive and well.
Mr Pinnock —Yes. If you like, it is a philosophical point. It was not of great concern to us from a practical point of view. It certainly was not one of the major issues for example that we based our national submission on.
Mr MELHAM —So that if the sunset clause was subsequently abandoned or taken away, you are not going to lose sleep over that.
Mr Pinnock —That is not a key issue for us, not in our industry. I am not speaking for the North Queensland Miners Association here; I am talking for QMC and the MCA. We do not see that as a major issue for us, no.
Mr Walker —Mr Melham, I have to come in on this one. The last segment of our submission is tantamount--
Mr MELHAM —Whereabouts is this?
Mr Walker —It is on page 5 under our proposed amendment to section 25, overview of the subdivision. We are asking for an amendment to be inserted into the proposed amendment act which limits the federal minister to a period of 12 months to do what he has got to do. The simple reason for our proposal is that, after he has made his determination, it then has to come back to the state and they will need another 12 months.
The fact is that in Queensland no new mining leases have been issued since 1 January 1997. The industry is running on existing leases and we expect that a large number of our operators will be out of ore reserve. There is a hiatus at the moment. By virtue of the hold-up in the issuing of mining leases, if it is going to take another two years for operators to get new leases, it will be a disaster that is catastrophic because that is what will happen.
Under the present financial system, the mining industry, especially the smaller end of it, does not even have access to carry-on funding. Some of the small companies have to go and sell a truck, a bulldozer or an excavator to carry on. But, eventually, they have to stop. Then the finance companies come in, seize their equipment, sell it for almost nothing and send them a big bill for the shortfall. I must impress on this committee that it is absolutely essential for the survival of the smaller miners--not only in Queensland; this is Australia-wide--that the issue of mining leases when they do come back on-stream is fast tracked.
How the heck that is going to be done is very difficult even for those of
us such as me to imagine--I have been in the mining industry for over 30
years. It is very difficult for us to draft up suggestions, and we do our
best. The federal government have to come on board very seriously, even if
they set up some sort of a sub-department or something like that to cater
for this, because I cannot stress strongly enough the seriousness of the
position of this industry. I happen to know that the grazing industry is
also in deep trouble in this regard. A lot of people are not prepared to
admit that their bank manager will not let them write out their next
cheques. It is pride but it is present.
ACTING CHAIR (Senator Abetz) —Mr Harris, earlier on I think you were going to make a comment. Is that still relevant?
Mr Harris —I was going to ask a question of Mr Melham because in his question to Mr Walker regarding certainty of the industry he referred to amendments passing the Senate. Mr Melham, are you implying that there is a set position that you feel would pass the Senate and would you be prepared to enlighten us as to those conditions?
Mr MELHAM —Mr Harris, as you well know, this committee is reporting back to the parliament on the evidence that is placed before us. The Labor Party does not have a finalised position. We are talking to all stakeholders, and our position will be revealed in due course. A number of speeches given by the Leader of the Opposition, Mr Beazley, and by Mr Evans have given a few signposts but, like everyone else, I do not mind saying that the Labor Party is working through this legislation line by line. The package consists of 330-odd pages of legislation and a 400-page explanatory memorandum. It depends whom you talk to because they will each give different interpretations. The Labor Party will have a considered position--as we have always said--that we believe will provide certainty. There are some things that are not negotiable.
Mr Harris —But you are saying that you can see the position where this amendment bill would be able to pass the Senate.
Mr MELHAM —I can say this to you: this amendment bill, in my opinion, will not pass the Senate in its present form.
Mr Harris —With the indulgence of the chair, could I just ask one further question: you were referring to indigenous property rights. For the indulgence of the rest of the committee and the people here in the room, could you expand on what you see as indigenous property rights.
Mr MELHAM —If the chair allows me that indulgence.
ACTING CHAIR —I will give you 30 seconds.
Mr MELHAM —If you go to Justice McHugh's judgment in the Waanyi case--and he was one of the more conservative judges in the Wik decision--he talks about the right to negotiate and acquiring with it proprietary rights. The High Court has said that it is possible for native title to have survived the issuing of a pastoral lease and that you need to look at that on a case by case basis. The thing that concerns me is that there are a number of existing rights that indigenous people hold as a result of Mabo, Wik and Native Title Act that could--I am not giving a definitive point of view--see us back in the courts for a long time.
What the High Court decided in Western Australia v. the Commonwealth is
that we as a parliament have the power under the race power to legislate for
the benefit of the Aboriginal race. The question of whether we can legislate
to their detriment and whether this is detrimental legislation is a live
issue. I am quite happy to talk to you privately. The chair has given me 30
seconds, and I do not want to overdo his indulgence.
ACTING CHAIR —Mr Melham, your concern is appreciated.
Senator FERRIS —I have one question that I would like to address to Mr Walker and it concerns the right to negotiate. The operation of the current legislation's right to negotiate has been described--and I am quoting Father Frank Brennan here--`as an appropriate means by which Aboriginal people might have some economic self-empowerment'. He goes on to say, `giving Aborigines six months to cut a deal with a mining company'. I am wondering whether you could reflect on those comments and, if you agree with them, whether you could tell me whether your members are now building in this cost as an accepted infrastructure cost in a new development.
Mr Walker —The issue is very complex by virtue of the uncertainty of the effect or the true meaning of the words `right to negotiate'. It has everybody really stymied. I have personally got several top level legal opinions on lots of these matters, and they all vary. We have been all thrust into a great grey zone of fog or doubt--whatever you want to call it. It is most difficult to know what the outcome of all this will be. We fully expect it could even go to a double dissolution. As Mr Melham--I do not know if he is a senator.
Mr MELHAM —I am not a senator.
ACTING CHAIR —No, he is not so exulted.
Mr Walker —Mr Melham has said--now you have sidetracked my thought.
Senator FERRIS —Perhaps I could assist you by telling you what Mr Campbell Anderson of the Minerals Council has said about the right to negotiate. He said that it conveys a right to frustrate or a right to obtain compensation.
Mr Walker —Well, firstly, Mr Campbell Anderson represents the multi multinationals and these people speak through a multimillion dollar purse. You are really trying to ask me a question that Campbell Anderson has commented on, but we have to look at it in an entirely different context because we do not have access to this enormous funding.
—That is why I am wondering whether you are
building it in as a cost of your infrastructure.
Mr Walker —The point here is that we really do not know the outcome of this--nobody knows. Personally, I think it is going to go on ad infinitum and there will be very serious divisions and repercussions from this whole Wik situation. One group of the population is saying, `The country is ours' and the newcomers, which is us, are saying, `We think it is ours.' There is a dreadful impasse. It is going to require an immense effort to sort out this mess. I know what I was going to say to Mr Melham: the Labor Party got us into this mess, so you get us out.
Mr MELHAM —Can I just say to you in answer to that--
Senator FERRIS —Can I just ask Mr Pinnock if he has anything to add to my question then you can have--
ACTING CHAIR —Swallow your pride.
Mr Walker —I could not resist.
Senator FERRIS —Can I just ask Mr Walker to finish and I would like to see whether Mr Pinnock has a comment.
Mr Walker —Firstly, the small mining industry does not have any objection to the Aboriginals reclaiming their land, some of their land--sufficient land to live for future generations. We do not have these terrible `we want your land' thoughts. We have lived with the indigenous community for several generations. We have no hatred or racial feelings--
Senator FERRIS —That was not what I was trying to establish. I was trying to establish whether, when you are planning a new mining project, your small mining company members are building into the likely infrastructure cost of a brownfields project a certain dollar amount--
Mr Walker —You are referring to compensation--
Senator FERRIS —No, I am not referring to compensation.
Mr Walker —What are you referring to?
Senator FERRIS —I am referring to an outcome from the right to negotiate provisions of the current act. I quoted to you Father Brennan's view in which he said that it is the right to cut a deal; it is the right to provide economic empowerment for indigenous people. What I wanted to establish from you, if I could, is whether or not your members are building that cost into the cost of any new projects that they work on.
—No, we are not--I must be honest--for the simple reason
that we are not sure which way this ball is going to bounce. We believe
that, with the present government going off on a different tack from the
previous government and not extinguishing native title, there is another
reason and that is to duck maybe $50 billion worth of compensation. We
believe that if there is compensation to pay to native title claimants or
holders, the Commonwealth government should pay it. How do you like that?
Senator FERRIS —Mr Pinnock, do you have a comment to add?
Mr MELHAM —Why shouldn't you pay it if you are acquiring the rights. Why should the taxpayers pay it?
Mr Walker —I will tell you why, because--
ACTING CHAIR —Mr Melham and Mr Walker, Senator Ferris has the floor for asking questions.
Senator FERRIS —You had a good run, Daryl.
Mr Walker —Fair enough.
ACTING CHAIR —Mr Pinnock has been asked to comment
Mr Pinnock —Senator Ferris, to answer your question very specifically: the small miners would have absolutely no capacity whatsoever to organise a compensation package in response to the right to negotiate. I understand what Father Brennan says and he is right: the right to negotiate is an extraordinary ticket to the table because they can negotiate over whether our projects proceed or not. In many cases, our medium sized and larger sized companies have had to agree to packages to enable their projects to proceed, because the alternative is they finish up in the tribunal and they feel that they might be there for two or three years.
That is a prospect that the small miner cannot countenance. That is why I think the government is right in its approach in the current amendments to try to seek a level of exemption for small miners. They have specified gems, alluvial gold and tin operations. It is now a matter of working through those areas to see how many of the members up here would then be exempt from the right to negotiate.
I think there is a strong case for them to be so exempt because, in my
view, there is no reason why one small section of the community--and that is
what it is--should be asked to take on what I think is a general
government/taxpayers' responsibility for Aboriginal people. Nobody else has
to go through the right to negotiate other than the mining industry. If you
go back three years, in my view, it was never right that one section be
asked to pay the community's bills. But that is how it is; we have now got
that. I do not think it is going to change, so it is essential that we get
some of the smaller miners out of it--in the sense of providing an exemption
level which will exclude as many of them as possible because they are simply
not going to be able to afford to negotiate in such a way.
ACTING CHAIR —Messrs Pinnock, Walker and Harris, thank you very much for your submission and for the answers to questions. It has been most helpful.
Mr Harris —Chair, can I ask your indulgence for 30 seconds. I would like to respond to Senator Ferris, and I apologise for this, by way of an explanation: the current compensation that I pay on my mining lease to my background land tenure holder for the current five-year plan of operation is $1. That is the legal compensation that I am now paying to my background land tenure holder for excluding him from the area that I am using.
If I understand what Senator Minchin was saying when he was at Musgrave, he explained that the standing for indigenous people for the right to negotiate for compensation should not be greater than that of the background land tenure holder. If the background land tenure holder is accepting $1 compensation for five years and the indigenous people have no further rights greater than that of the pastoralists, then that compensation should be $1. I admit this is not an exceptional case in this area; it is the accepted custom. If you take the economic factor, the maximum that is normally paid in this area is $5 per hectare per year.
Senator FERRIS —Thank you for that.
Mr Harris —Thank you for your indulgence
ACTING CHAIR —Thank you very much.