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Thursday, 27 November 1986
Page: 3840


Mr CONNOLLY(11.52) —I move: (6) Page 16, after clause 24, insert the following new clause:

``Repeal of Part IV and substitution of new Part

`24a. Part IV of the Principal Act is repealed and the following Part is substituted:

`PART IV-MINING INTERESTS AND MINING OPERATIONS

Interpretation

`40. (1) A reference in this Part to the warden's court is a reference to the warden's court established by the Mining Act of the Northern Territory at a place closest to the land to which the reference relates and includes a reference to the warden constituting that court.

`(2) A reference in this Part to a mining interest includes, where the context so requires, a reference to the land to which the mining interest relates.

Grant of Mining Interests

`41. (1) Subject to this Act and the Atomic Energy Act 1953, a mining interest in respect of Aboriginal land may be granted under a law of the Northern Territory relating to mining for minerals.

`(2) A mining interest in respect of Aboriginal land shall not be granted unless the applicant for the mining interest has first entered into an agreement in writing with the Land Council in whose area the Aboriginal land is situated relating to-

(a) the compensation to be paid on the granting of the mining interest;

(b) the guidelines to be adopted after the granting of the mining interest in relation to the identification and protection of sacred sites; and

(c) the employment opportunities to be offered to Aboriginals in the operations to be conducted under the mining interest.

Agreement Provisions

`42. (1) An agreement referred to in section 41-

(a) shall make provision for the distribution of monies paid to the Land Council under the agreement to or for the benefit of such traditional Aboriginal owners as are specified in the agreement;

(b) may make provision for the applicant for the mining interest to lodge with the Land Council a security in such form, for such amount and from such person as the Land Council thinks fit, to secure the applicant's compliance with the conditions referred to in section 47;

(c) may make provision for a process of arbitration, in accordance with a law of the Northern Territory relating to commercial arbitration, to determine disputes relating to compliance with the conditions referred to in section 47 and failing such provision in the agreement, the parties to the agreement shall be deemed to have appointed a warden constituting the warden's court as the arbitrator under that law of the Northern Territory in respect of such disputes; and

(d) may provide that where a condition referred to in section 47 requires the holder of the mining interest to do anything in relation to the mining interest and the holder does not, within the time provided in the condition, do that thing, the Land Council or a person authorized by the Land Council may enter on the mining interest with such assistance as, and take whatever action, the Land Council or that person, as the case may be, considers necessary for doing that thing, and the costs reasonably incurred by the Land Council or that person in so doing shall be a debt due and payable by the holder of the mining interest to the Land Council or that person, as the case may be, whether or not at the time that the thing was done by the Land Council or that person the mining interest had been cancelled, forfeited or surrendered or had expired.

`(2) A condition referred to in paragraph (1) (d) shall not entitle the Land Council, or a person authorized by it, to take any action in pursuance of the condition until the grounds on which the Land Council claims to be entitled to take or authorize the taking of such action have been referred to arbitration under a condition referred to in paragraph (1) (c), the arbitrator has determined that the holder of the mining interest is required under the agreement to do the thing to which the matter relates and the further time (if any) determined by the arbitrator for the holder of the mining interest to do that thing has expired.

Aboriginal Consultation

`43. (1) In consulting with traditional Aboriginal owners in accordance with the requirements of sub-section 23 (2) in relation to an application for a mining interest referred to in this Part, the Land Council shall ensure that the applicant is given an opportunity to present to the traditional Aboriginal owners for their consideration, in such reasonable form and manner as the applicant thinks fit, an explanation of the purposes for which the mining interest is required and the operations to be conducted thereunder.

`(2) Where a Land Council entering into an agreement referred to in section 41 fails to comply in all respects with sub-section 23 (3) in relation to the Aboriginal land to which the agreement relates, that failure does not of itself invalidate the agreement.

`(3) Where a Land Council, by reason of not being able to identify all of the relevant traditional Aboriginal owners of land, is unable to comply with the requirements of sub-section 23 (3) within 6 months after being notified in writing by the applicant for a mining interest of the applicant's wish to commence negotiations for an agreement referred to in section 41, the Land Council shall, in accordance with this Act and subject to section 45, negotiate for and enter into the agreement with the applicant and all monies subsequently paid under the agreement to the Land Council for the benefit of the traditional Aboriginal owners shall be held in trust for those traditional Aboriginal owners by the Land Council pending the identification of those traditional Aboriginal owners by it.

Determination of Compensation

`44. (1) The compensation to be paid under an agreement referred to in section 41 shall be limited to compensation-

(a) for the traditional Aboriginal owners being deprived of the use of the surface or part of the surface of the land;

(b) for damage to the surface of the land through exploration or mining activities conducted on the land;

(c) for the traditional Aboriginal owners being deprived of the use of improvements on the land;

(d) for the severance of the land from other land held in trust for or occupied by the traditional Aboriginal owners; and

(e) for all other damage to the land or improvements on the land arising out of operations to be conducted under the mining interest.

`(2) In determining the amount of compensation to be paid under an agreement referred to in section 41, no account shall be taken of minerals known or supposed to be on or under the land.

Arbitration on agreement

`45. (1) Where a Land Council and the applicant for a mining interest in respect of Aboriginal land cannot agree on the terms and conditions of an agreement referred to in section 41 within 12 months after the applicant having notified the Land Council in writing of the applicant's wish to commence negotiations for such an agreement or within that time the Land Council refuses or fails to enter into such negotiations, either the Land Council or the applicant may refer the matter to the warden's court for its determination of the appropriate terms and conditions of the agreement.

`(2) In determining the terms and conditions of the agreement referred to in sub-section (1) the warden's court shall have regard only to the requirements of sections 41, 42 and 43 in relation to the terms and conditions to be agreed upon and shall determine as appropriate only those terms and conditions that, in its opinion, should in the circumstances be acceptable to the Land Council and to the applicant and the determination of the warden's court is binding on the Land Council and the applicant.

`(3) In determining a term or condition of an agreement referred to in section 41 requiring a security to be lodged by the applicant for the mining interest to secure the applicant's compliance with the conditions referred to in section 47, the warden's court shall take into account any security that the applicant may be required to lodge under a law of the Northern Territory relating to mining for minerals in respect of the mining interest and shall make its determination so that, as far as practicable, the applicant is not required to provide more than one security in respect of the same matter.

Applicant for mining interest not bound to proceed with application

`46. An agreement referred to in section 41 shall not be construed so as to compel the applicant for the mining interest to which the agreement relates to proceed with the application.

Implied conditions, &c., in grant

`47. In addition to the terms and conditions subject to which a mining interest in respect of Aboriginal land is granted, that mining interest shall be subject to the conditions that-

(a) the holder of the mining interest or his employees, servants or agents shall not unlawfully interfere with any historical site or object, or any Aboriginal sacred site or object, declared as such by or under a law of the Northern Territory;

(b) the holder of the mining interest shall keep to a minimum the number of people associated with the exploration or development on the land to which the mining interest relates;

(c) except for the purposes of consumption by its employees, servants, agents, contractors or sub-contractors at its camps, the holder of the mining interest shall not bring or permit to be brought onto the mining interest any alcohol;

(d) the holder of the mining interest shall not bring or permit to be brought onto the mining interest firearms of any kind or, except with the prior consent of the Land Council, any animal;

(e) the holder of the mining interest shall at all times give full consideration to the aspirations and welfare of the local Aboriginals and co-operate with the traditional Aboriginal owners and not interfere with the growth and development of the Aboriginal social, cultural and economic structures on the mining interest;

(f) the holder of the mining interest shall employ and engage, and shall ensure that its agents, contractors and sub-contractors employ and engage, as many Aborigines or Incorporated Aboriginal Associations or groups associated with the mining interest as is practicable who are capable of carrying out, or being trained (including by on-the-job training) to carry out, in a satisfactory manner, the particular work required to be carried out in relation to the mining interest at the usual award rates for the type of work performed and subject to the usual conditions of employment;

(g) the holder of the mining interest shall take all reasonable steps to adjust working hours and conditions of Aboriginal employees to suit Aboriginal culture or the reasonable requirements of their Incorporated Aboriginal Association or group;

(h) the holder of the mining interest shall progressively rehabilitate and restore, as far as practicable, all areas disturbed by its activities in accordance with good environmental practice;

(j) the holder of the mining interest shall liaise with the Land Council on the exploration or development programs in relation to the mining interest and discuss the possible relocation of proposed works and details of the program as it develops;

(k) the holder of the mining interest shall, before carrying out a program involving substantial disturbance of the surface of the mining interest, advise the relevant Northern Territory authority and the Land Council, in writing, of that program and comply with such directions as the relevant Northern Territory authority considers appropriate for the protection of the environment in the carrying out of the program;

(l) the holder of the mining interest shall advise the relevant Northern Territory authority and the Land Council, in writing, of the proposed location of all infrastructure facilities on the mining interest and the proposed method to be used in disposing of waste, and comply with such directions as the relevant Northern Territory authority considers appropriate in relation to the disposal of that waste.

(m) the holder of the mining interest shall not erect a permanent building or facility on the mining interest except with the approval in writing of the relevant Northern Territory authority; and

(n) the holder of the mining interest shall comply with the terms and conditions of the agreement referred to in section 41 in relation to the mining interest.

Access to Aboriginal Land

`48. Notwithstanding sections 68 and 70, where a person has the right under a law of the Northern Territory to occupy Aboriginal land by virtue of the grant of a mining interest, that person has for himself, his employees and his agents, a right of access from a public road to that land and across other parts of the Aboriginal land of which the mining interest is part and any contiguous Aboriginal land, by the shortest practicable route, being a route agreed upon by the person and the Land Council for the area in which the land is situated.

Right of way in respect of services, &c.

`49. (1) The grant of a mining interest entitles the holder of the mining interest to a right of way over Aboriginal land for all reasonable ancillary purposes in connection with the operations to be conducted under the mining interest.

`(2) For the purposes of sub-section (1), a right of way extends to access for or in connection with-

(a) the erection and use of conveyor apparatus in connection with the transporting of minerals or substances containing minerals;

(b) the erection of electricity lines;

(c) the construction of roads;

(d) the cutting and construction of water races or drains; and

(e) the boring, sinking for, pumping, raising of or conveying of water.

`(3) Where the holder of a mining interest is entitled under sub-section (1) to a right of way, that right of way may be exercised by a route agreed to by the holder of the mining interest and the Land Council for the area in which the mining interest is situated.

`(4) Where a Land Council and the holder of a mining interest cannot agree on the route by which a right of way under sub-section (1) may be exercised, the matter may be referred by the Land Council or the holder of the mining interest to the warden's court for determination and the decision of the warden's court in relation to that matter is binding.

`(5) Compensation shall be payable by the holder of the mining interest to the Land Council for the benefit of the relevant traditional Aboriginal owners in respect of a right of way under sub-section (1).

`(6) The compensation to be paid under sub-section (5) shall be determined on the same basis as under section 44 in respect of the grant of a mining interest.

`(7) Where an amount of compensation payable under sub-section (5) cannot be agreed upon between the Land Council and the holder of the mining interest, the Land Council or the holder of the mining interest may refer the matter to the warden's court for determination and the decision of the warden's court in relation to that matter is binding.

`(8) A right of way under sub-section (1) shall not be exercised until compensation has been paid in accordance with this section.

Jurisdiction and supervision of warden's court

`49a. Where by or under this Part a power is conferred or a function imposed on the warden's court, the warden's court has the jurisdiction to exercise that power or perform that function as if it had been conferred or imposed on it by or under the Mining Act of the Northern Territory and an appeal shall lie to the Supreme Court of the Northern Territory from a decision or determination of the warden's court under this Part in the same manner as an appeal against a decision of the warden's court under that Act.'.''

This is one of the most important areas that is ignored by the Government in the Aboriginal Land Rights (Northern Territory) Amendment Bill 1986. As the Minister for Aboriginal Affairs (Mr Holding) said in his second reading speech, he has ignored-or deferred, as he would rather say-some main elements for future dealing. They refer specifically to exploration and mining on Aboriginal land, the granting of an estate or interest in Aboriginal land to the Northern Territory Governments for essential services, the protection of sacred sites, and methods for calculating payments of royalty equivalents to the Aboriginals Benefit Trust Account.

It is important that in the last two years all those areas have been the subject of extensive negotiation between the Minister, the Northern Territory Government, the mining industry, the cattle industry, the Aboriginal land councils and all other groups. It is a matter of great sadness that the amendments which were put to those organisations earlier this year and which were negotiated with the land councils and a Caucus back bench committee resulted in these fundamental changes being left out.

In some of the amendments I am moving today I have endeavoured to reintroduce into the Parliament virtually the same words as the Minister used in the proposed amendments which he said throughout Australia that he would move to the Aboriginal Land Rights (Northern Territory) Act 1976. I hope we will not wait in vain for the Minister to come forward next year with an agreed set of amendments to key areas of the land rights issue. While the Minister persists in ignoring them, we will not be able to have a situation in which, as I said earlier, residents of the Northern Territory-black, white, all nationalities alike-will be able to say with any justification that they do not see the issue of land rights as one of fear and one that is likely to have major negative economic impact on the future of that area.

It would be completely false to assert that this Bill therefore contains a full set of the reforms we had expected. It is really a very sad reminder of the gap between the rhetoric and the action that has typified the Government's entire approach to Aboriginal affairs in the last four years. Last March the Minister told us of all the changes he would introduce. Now we have seen what little substance there was in that performance. Even in the 1983 election campaign the Australian Labor Party made the commitment:

We recognise that in some areas the Land Rights Act does need amendment . . . excisions for Aboriginals living on pastoral leases . . . the ALP will be renegotiating amendments to the Land Rights Act with Aboriginal land councils and the Northern Territory Government.

The people did not necessarily support all the changes the ALP was proposing. How can they trust the Government, which agreed to negotiations but which came back to Canberra and dropped the baby, bathwater and all? Once again it is simply lowering, in the perception of the people of the Northern Territory, the image that governments in Canberra, particularly Labor governments, can be trusted. While that situation is in place, the issue remains.

I turn now specifically to mining. Last year Senator Bernie Kilgariff from the Northern Territory introduced into the Senate some far-reaching amendments to the provisions of Part IV of the Aboriginal Land Rights (Northern Territory) Act relating to mining interests and mining operations on Aboriginal land. Because the Government has not had the courage to face this vital issue at a time when the Australian economy is on its knees, when we must do all we can to encourage foreign investment in this nation and when the mining industry undoubtedly has an important role to play to get us out of the economic mess to which this Labor Government has contributed so much, we see yet again no attempt made by the Minister in this area. It is not necessarily an issue of a competition or a conflict between mining interests on the one hand and Aboriginal interests on the other, as the Minister would have us believe. In fact, it is an unwillingness by the Minister to look for solutions which are mutually acceptable, if that is possible. That provision was built into the Act in 1976, but it has never been utilised. In the national interest it is the responsibility of the Government to make mining in the Northern Territory a reality in cases where traditional owners prefer, unreasonably, that there should be no mining at any time. All he proposed in that context was to do away with the total veto in prior legislation and replace it with a five-year veto, subject then to further negotiation.

What has been suggested by Senator Kilgariff and supported by the Opposition is that that five-year veto should be reduced to 12 months. On many occasions I have heard the Minister say in this chamber that Aboriginal interests are not necessarily anti-mining. I am glad he said that because there is some truth in that statement. Aboriginal interests may well fear that their tribal and other interests are not given adequate consideration in the context of the economic utilisation of their land. The Kilgariff amendments which are now being put forward adequately cover the legitimate interests of tribal owners, while at the same time ensuring that the community at large, and the Aboriginal communities as part of the Australian community, are given access to the wealth which undoubtedly is to be found in much of the Northern Territory.

Earlier the Minister mentioned that his State of Victoria is covered by leases. He also said that very few of those leases in fact will be actively mined. Undoubtedly the same principle applies to the Northern Territory, where now nearly 50 per cent of the land is Aboriginal land or subject to claim. Why is there therefore such a problem in allowing miners to enter into negotiations with the traditional Aboriginal owners at least to carry out exploration activities and, if they are successful, to hold further negotiations in relation to mining? The simple fact is that since 1976, and not absolutely because of the Aboriginal Land Rights (Northern Territory) Act but because of the freeze which was introduced in 1972, virtually no successful negotiations have taken place. In fact there has been only one. Recently I think there was a second agreement in relation to exploration.

The record is clear. Anyone who wants to examine it will see that the imposition of a total veto over Aboriginal land rights and the difficulties which the Northern Territory land councils have emphasised to me on numerous occasions of determining who are the traditional owners with whom negotiations should be carried out-which, if I may suggest, puts paid to the argument that the Minister used a few moments ago against having reliable registers of ownership-simply make the point that we are possibly leaving in the ground the opportunities which can come only from further mining, at a time when we need more, not less, economic activity in this nation.

The point needs to be made that the Prime Minister (Mr Hawke) identified this. He said that there was no economic need to develop new mines in Kakadu. Now the Minister for Aboriginal Affairs refuses to lift the impediments to mining contained within Northern Territory land rights legislation. I would just like to read into the Hansard a letter which was sent to Geopeko by Dr Rex Patterson on 21 December 1973, which demonstrates why mining interests in the Northern Territory do not trust this Government. This is what Dr Rex Patterson had to say:

Dear Mr Elliston,

I refer to your applications for renewal of Exploration Licences Nos 219 and 220. These applications relate to areas that extend into the area proposed as a national park in the Alligator Rivers region.

I wish to confirm the advice given on my behalf by the Secretary of the Department of the Northern Territory, to your company's representatives during recent discussions in Darwin. The Government is not opposed to renewal of the licences to 31 December 1974, in respect of so much of the areas applied for as lies outside the boundary of the proposed park. It is opposed to renewal of the licences in respect of any area that lies within the boundary of the proposed park.

It is the intention of the Government, at the February 1974 sittings of the Northern Territory Legislative Council, to introduce new legislation providing for the creation of national parks in the Northern Territory, and for the issue of rights under that legislation to allow prospecting to be carried out within those national parks under suitable conditions.

The letter went on to state:

I am authorised by the Government to assure you that, if your applications for renewal of licences are approved only in respect of areas outside the boundary of the proposed park, you will, upon commencement of the new legislation, be issued with fresh licences under that legislation in respect of the areas within the park boundary to which your current renewal applications relate.

Please be assured that my officers will be available to discuss any matter of concern to you.

That letter was signed by Rex Patterson, the then Minister for Northern Development.


The DEPUTY CHAIRMAN (Mr Drummond) -Order! The honourable member's time has expired.