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(b)
New South Wales
5
Access arrangements
The reference in s69A of the Petroleum (Onshore) Act (which deals with access
arrangements in relation to prospecting operations) to a landholder now includes a
reference to registered native title bodies corporate and registered native title claimants.
(c)
Consultation with Minister of Aboriginal Affairs
The Minister for Aboriginal Affairs has to be consulted in relation to the appointment of
members to the arbitration panel settling access arrangements with native title parties
under both the Mining and Petroleum (Onshore) Acts.
(d)
When consent of native title holders is deemed to be given
A cap of 4 months after the prescribed notice has been imposed on a native title
landholder to come forward and make a native title claim on land that is to be subject to a
grant of title or the carrying out of mining or prospecting operation in both the Mining and
Petroleum (Onshore) Acts. If no claimants come forward within the time frame, the
landholder is deemed as unable to be identified.
THE LOW IMPACT EXPLORATION LICENCE REGIME*
Low impact exploration licence
The regime for a low impact exploration licence under the NSW Mining Act 1992 (the Act) has
been approved under section 26A of the Commonwealth Native Title Act 1993 (NTA). The licence
confers on its holder a right to explore or prospect which is unlikely to have a significant impact on
the land. Where such a licence is granted, the right to negotiate procedure in the NTA is not
required to be followed.
The holder of a low impact exploration licence may carry out prescribed prospecting operations
which are aerial surveys, geological and surveying field work that does not involve clearing,
sampling by hand methods, ground-based geophysical surveys that do not involve clearing, drilling
and activity associated with drilling and the establishment of a drill site that do not involve clearing
or site excavation other than the minimum necessary to establish a drill site and environmental field
work that does not involve clearing.
Access arrangement required
Section 32F(2) of the Act provides that a low impact exploration licence is subject to the condition
that the holder of the licence is not authorised to carry out prospecting operations on any relevant
land otherwise than in accordance with an access arrangement under Division 2 of Part 8 of the Act
between the holder of the licence and each registered native title body corporate or each registered
native title claimant, being an access arrangement:
*
T J Wassaf, Partner, Allen, Allen & Hemsley.
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Recent Developments
(2001) 20 AMPU
(a)
that is agreed between them in accordance with that Division or that is determined for
them by an arbitrator in accordance with that Division; and
(b)
that has involved consultation by the holder of the licence that satisfies the requirements
of Section 26A of the NTA.
The requirement for an access arrangement also applies on a renewal of a low impact exploration
licence (s.32G).
Initial Procedures
The procedure in Division 2 of Part 8 of the Act involves the holder of a prospecting title (in this
instance, a low impact exploration licence) giving written notice to each landholder of its intention
to obtain an access arrangement in respect of the land. The notice must, in addition to stating the
holder's intention, contain a plan and description of the area and a description of the prospecting
methods intended to be used in the area. An access arrangement may be agreed before or after the
prospecting title is granted and may be either orally or in writing. If 28 days after the notice the
parties have not been able to agree on an access arrangement, then the holder may, by further notice
to each landholder, request them to agree to the appointment of an arbitrator. If the parties cannot
agree on an arbitrator within another 28 days, then either party may apply to the Director-General
of the Department of Mineral Resources for the appointment of a member of the arbitration panel
as an arbitrator.
Access arrangement provisions
Division 2 of Part 8 does not prescribe what must be included in an access arrangement except that:
(a)
if there is any inconsistency between:
(i)
a provision of an access arrangement; and
(ii)
a provision of the Act, of the regulations under the Act or of a condition of a
prospecting title,
then the provision referred to in (ii) above prevails (s.141(3».
(b)
if the holder of a prospecting title contravenes an access arrangement, the landholder may
deny the holder access to the land until the holder ceases the contravention or the
contravention is remedied to the reasonable satisfaction of the landholder (s.141(4» but
this does not affect any proceedings that may be brought against the holder for the
contravention (s.141(5»;
(c)
an access arrangement does not run with the land and unless terminated sooner, terminates
if a landholder ceases to be the landholder of the land or on the death of the landholder
(s.158).
For the purposes of the low impact exploration licence regime, reference to the landholder means
each registered native title claim or registered native title body corporate in respect of the relevant
land.
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However, Section 141 of the Act provides that the access arrangement may make provision for or
with respect to the following matters:
(a)
the periods during which the holder of the prospecting title is to be permitted access to the
land;
(b)
the parts of the land in or on which the holder of the title may prospect and the means by
which the holder may gain access to those parts of the land;
(c)
the kinds of prospecting operations that may be carried out in or on the land;
(d)
the conditions to be observed by the holder of the title when prospecting in or on the land;
(e)
the things which the holder of the title needs to do in order to protect the environment
while having access to the land and carrying out prospecting operations in or on the land;
(t)
the comperisation to be paid to any landholder as a consequence of the holder of the title
carrying out prospecting operations in or on the land;
(g)
the manner of resolving any dispute arising in connection with the arrangement;
(h)
the manner of varying the arrangement; and
(i)
such other matters as may be agreed.
By virtue of Section 263 of the Act, on the granting of an exploration licence (which includes a low
impact exploration licence) a landholder of any land (whether or not subject to the licence)
becomes entitled to compensation for any compensable loss suffered or likely to be suffered by the
landholder as a result of the exercise of the rights conferred by the licence or by an access
arrangement in respect of the licence. A landholder includes a native title holder but not a
registered native title claimant.
Compensable loss is defined in Section 262 and includes loss caused or likely to be caused by
deprivation of the possession or of the use of the surface of the land.
The holder of an exploration licence may agree with a landholder as to the amount of compensation
payable, but an agreement is not valid unless in writing signed by the parties (s.263(2)). Provisions
in an access arrangement that relate to compensation (whether or not in writing) have effect as an
agreement under section 263 (s263(3)).
Consultation
Consultation that satisfies the requirements of Section 26A of the NTA (which is required by
section 32F(2) of the Act) involves a legal obligation on the holder to consult appropriately the
registered native title body corporate or registered native title claimant for the purpose of
minimising the impact of the grant of the licence on the exercise of native title rights and in
particular about protection and avoidance of sites of particular significance, access to the land and
other effects on native title.