NATIONAL NATIVE TITLE TRIBUNAL 

AGL Loy Yang Pty Ltd and Another v Gunaikurnai Land & Waters Corporation RNTBC 
[2015] NNTTA 50 (28 October 2015)

Application No:	VF2015/0001

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application 

Gunaikurnai Land & Waters Aboriginal Corporation RNTBC (VCD2010/001) 
(native title party)

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The State of Victoria (government party)

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AGL Loy Yang Pty Ltd (grantee party)

FUTURE ACT DETERMINATION THAT ACT MAY BE DONE

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	28 October 2015 
Hearing date:	On the papers

Catchwords: Native title – future act – no agreement with native title party – application for determination for the grant of a retention licence – s 39 criteria considered –– effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – effect of act on the environment - any other matters the Tribunal considered relevant – determination that the act may be done

Representatives of the 	Ms Georgia Denisenko, Just Outcomes (Aust) Pty Ltd
grantee party:

Representatives of the 	Mr David Harden, Native Title Services Victoria
native title party:

Representatives of the 	Ms Mary Scalzo, Victorian Government Solicitor’s Office
government party:

Legislation:	Native Title Act 1993 (Cth), ss 29, 31, 35, 36, 38, 39, 238
	Mineral Resources (Sustainable Development) Act 1990 (Vic), s 14
	Aboriginal Heritage Act 2006 (Vic) 

Cases: 	Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland [2012] NNTTA 31 (‘Drake Coal v Smallwood’)
Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’)
Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144 (‘Mullett on behalf of the Gunai/Kurnai People v Victoria’)
Smith on behalf of the Gnaala Karla Booja People v State of Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Straits Exploration (Australia) Pty Ltd & Anor v Kokatha Uwankara Native Title Claimants & Ors [2012] SASCFC 121 (‘Straits Exploration v Kokatha Uwankara’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v Western Australia’)
White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clan of the Wonnarua People)/New South Wales [2011] NNTTA 110 (‘White Mining v Franks’)
WMC Resources and Another v Evans (1999) 163 FLR 333; [1999] NNTTA 372 (‘WMC Resources v Evans’)

REASONS FOR DETERMINATION

[1]	The grantee party, AGL Loy Yang Pty Ltd (AGL), has applied for Retention Licence 2015 (licence). The licence is over an area of approximately 1,640 hectares in the Latrobe Valley in the Gippsland Basin, Victoria. It covers the same area as AGL’s current Exploration Licence 4683 (EL4683). The government party, the State of Victoria (State), seeks to grant the licence.
[2]	The native title party, the Gunaikurnai Land & Waters Aboriginal Corporation RNTBC (Gunaikurnai AC), holds native title over part of the application area, the Gunaikurnai People having had their native title claim determined in October 2010. As such the Gunaikurnai AC has the right to negotiate with AGL and the State with a view to reaching an agreement about the grant of the licence. 
[3]	Where parties are not able to reach agreement about a grant, any party may apply for the Tribunal to make a determination. The Tribunal has power to determine whether or not the grant can be made, and if so, whether any conditions should be included, unless one of the parties satisfies the Tribunal that the grantee or the government party have not negotiated in good faith. In this matter, AGL has applied for the Tribunal to make a determination. The Gunaikurnai AC has not alleged the absence of good faith negotiations.
[4]	I have been appointed as Member by the President of the Tribunal, Raelene Webb QC, to make this determination. 
[5]	I am required to make one of three determinations, namely that: the act must not be done; the act may be done; or the act may be done subject to conditions to be complied with by any of the parties. Section 38(2) of the Act prohibits the determination of a condition that has the effect of entitling native title parties to payments worked out by reference to the amount of profits made; any income derived; or any things produced by the grantee party. 
[6]	In making a determination, I must have regard to the criteria enumerated in s 39. These include the effect of the grant of the licence on: the enjoyment by the Gunaikurnai People of their native title rights and interests; the development of their social, cultural and economic structures; their freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Gunaikurnai People in accordance with their traditions. I am also required to take into account the interests, proposals, opinions or wishes of the Gunaikurnai People  in relation to the management, use or control of the land or waters affected by the grant of the licence; the economic or other significance of the grant of the licence to Australia, the State of Victoria, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in the grant of the licence; and the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the Gunaikurnai People. Lastly, I must take into account any other matter that I consider to be relevant.
[7]	My task involves weighing the various criteria in s 39 by giving proper consideration to them on the basis of evidence before me. The s 39 criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that I am required to take into account quite diverse and what may sometimes be conflicting interests in coming to my determination. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
[8]	What is required of me is to strike a balance between the rights and interests of Indigenous Australians and the public interest in the protection and respect of native title rights over land on the one hand, and on the other hand, the public interest in allowing the exploration of mineral deposits beneath the land, in the interests of the economic advancement of the Australian community as a whole.
[9]	I note the statements made by the former Prime Minister Paul Keating when delivering the second reading speech in relation to the Native Title Act 1993 (Cth) (NTA, the Act) which in my view provide a useful background to the legislative scheme. Mr Keating said that, while there would be ungrudging and unambiguous recognition and protection of native title, what was required was a just and practical regime governing future development that delivered ‘justice and certainty’ not only for Indigenous people but also for ‘industry and the whole community.’ Governments would generally be able to make grants over native title land only if those grants could be made over freehold title. The ‘right to negotiate,’ which would apply over areas where native title had been recognised under Australian law or where there was a registered native title claim, would involve a process of negotiation and, if necessary, determination by an arbitral body or the relevant minister. It would be based on Indigenous people having ‘a right to be asked about actions affecting their land but not a right to veto.’ The timeframes set for notification, negotiation and arbitration would be ‘tight but fair’ and there would be provision for ‘expedited processes where a grant would not involve major disturbance to land or interference with the life’ of Indigenous communities. The integrity of the Australian land management system would be maintained, ‘but in a way which respects the profound Aboriginal connection to the land and provides appropriate protections.’ However, the legislation would not ‘lock land away’ or set up ‘complicated barriers to mining exploration operations,’ Keating said.
[10]	Importantly, the NTA does not provide for a right to veto exploration and mining activities.

Section 39 criteria and scope of my inquiry
[11]	Each of the parties filed contentions and evidence relevant to the s 39 criteria which I have set out in Annexure 1.
[12]	The parties, upon my request, also filed an Agreed Statement of Facts and Issues (joint statement), which sets out facts and issues the parties agreed and facts and issues not in agreement or which are only partly agreed. 
[13]	Section 39(4) states that I must take into account the issues relevant to my determination on which the parties agree and need not take into account the matters mentioned in s 39(1) to the extent that they relate to those issues.
[14]	In summary, the parties agree on the following facts and issues regarding the proposed future act and their negotiations:
•	The current and past tenure, location and size of the application area and AGL’s related mining tenure in the Latrobe Valley
•	The terms of the proposed grant of the licence, including the activities permitted
•	The nature of the rights and interests held by the Gunaikurnai AC pursuant to the October 2010 determination in Mullet on behalf of the Gunai/Kurnai People v Victoria over Crown Land within the application area
•	That negotiations between AGL and the Gunaikurnai AC under the right to negotiate process were unsuccessful.
[15]	Further, the parties agree on certain facts and issues specific to the s 39(1) criteria. I have summarised these in my consideration of each of the criteria below.  Although the parties noted in part 5 of their joint statement that they have ‘not sought to specify in Part 5 of the statement each matter on which they do not agree,’ I have endeavoured to do so. Whilst a number of issues are raised, there appears to be a thread running through the issues: the economic benefits and environmental impact which the grant of the licence may have. In summary, the Gunaikurnai AC submits that the grant of the licence will have a negative impact on the environment and will have no economic benefit. AGL on the other hand submits that the grant of the licence is an essential step in furthering its process of transitioning to becoming a carbon constrained or low carbon energy provider and as such ‘may have positive impact on many s 39(1) matters’ and will also benefit the economy. AGL seeks a determination that the licence can be granted without any specific conditions, the Gunaikurnai AC that the licence cannot be granted.
[16]	In my view, the central question that I have to determine, in the course of assessing the parties’ contentions and evidence against the conditions set out in s 39(1), is whether the parties’ contended impacts/benefits are in fact resulting from the grant of the licence, being the future act that is the subject of this determination application and as such are relevant to my consideration. 
[17]	In order to determine this question, I think it is important to first clarify the nature and scope of the activities permitted under a granted retention licence, and then address each of the s 39(1) criteria in sequential order. 

What is permitted under a Retention Licence? 
[18]	It is agreed by the parties that a retention licence holder is entitled to do the following 	under ss 14C(1) and (2) of the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSDA):
•	retain rights to a mineral resource that is not economically viable to mine but may become so in the future, or for the purpose of sustaining the operations of an existing mine; 
•	explore and carry out other work to establish the economic viability of mining a mineral resource in the land covered by the licence; and
•	apply for a mining licence over the area of the retention licence or to give consent to another person to apply for a mining licence over the area of the retention licence.
[19]	It is further agreed that the grant of a retention licence does not permit mining activities to take place and that a retention licence can be granted for up to ten years and may be renewed twice for up to ten years per renewal. The State further notes that a retention licence is not subject to relinquishment which is mandatory for exploration licences.
[20]	The parties agree that the licence shares the external boundary of EL4683, which was granted to AGL in December 2005. A separate EL4684, covering Crown land within the external boundary of EL4683, was granted in 2013 (following the parties entering into a s 31 Deed) and later cancelled and amalgamated into EL4683. 
[21]	From the evidence submitted by the State, I understand that EL4683 was due to expire on 13 December 2013. There is agreement that AGL applied for the retention licence on 11 December 2013 and accordingly EL4683 has not expired.

Section 39(1)(a) criteria
[22]	In the following, I assess each of the sub-criteria of s 39(1)(a) by: 
•	first, summarising the areas of agreement and disagreement (if any) as set out in the parties’ joint statement;
•	then outlining, firstly, the contentions made by AGL and the State, and secondly the Gunaikurnai AC’s contentions;
•	before considering and forming a conclusion. 

Section 39(1)(a)(i) – effect of grant on the enjoyment of registered native title rights and interests
Areas of agreement between the parties
[23]	The parties agree that:
•	the Gunaikurnai AC holds certain non-exclusive native title rights and interests in certain parts of the application area where native title has been determined to exist; 
•	the grant of the licence will not extinguish native title, but to the extent of any inconsistency, the rights conferred upon AGL by the grant of the licence will prevail; 
•	in 2012 the Gunaikurnai AC entered into a s 31 Deed with AGL and the State in relation to the grant of EL4684 (which was cancelled and amalgamated into the current EL4683), thus consenting to mineral exploration activities being conducted on that part of the application area for which native title has been determined to exist.
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[24]	In Part 5, AGL submits that there is no direct evidence that the grant of the licence will have an adverse effect on the enjoyment of their native title rights and interests, as submitted by the Gunaikurnai AG. AGL and the State are of the view that the grant of the licence will not have any greater impact on the enjoyment of native title rights and interests over and above the current arrangements between the parties in relation to the Crown land included in the former EL4684. The Gunaikurnai AC agrees with this, however notes that the s 31 deed between the parties in relation to the former EL4684 provides for broader cultural heritage protections than those under the Aboriginal Heritage Act 2006 (Vic) (AHA), which would apply to the grant of the licence.
[25]	In its contentions, AGL submits that the grant of the licence will not extinguish native title rights and interests, that AGL is not aware that any native title rights have been exercised in past the 21/30 years and that the area subject to the licence has been heavily explored for 100 years. AGL adds that no ground disturbing work is planned which affects the five Crown land parcels within the application area where native title has been determined to exist. AGL further contends that drilling will only occur if a third party developer requires additional data over and above the detailed data already held by AGL; rather the application area will be used primarily to explore new renewable and near-zero emission development opportunities.  AGL also contends that no evidence has been provided by the Gunaikurnai AC in relation to the exercise of native title rights on Crown land in the application area. AGL notes that a retention licence does not permit mining and that there will be no burning of brown coal under the licence if granted. 
[26]	The State does not make any separate submissions in relation to this criterion. 
Gunaikurnai AC’s contentions
[27]	The Gunaikurnai AC in its introduction to the s 39 criteria notes that it has four ‘principal objections’ to the grant of the retention licence. One is the impact the grant will have on the Gurnaikurnai People’s native title rights and interests that exist in relation to the Crown Land within the application area, being those listed on the National Native Title Register following the Federal Court’s decision in Mullett on behalf of the Gunai/Kurnai People v Victoria. 
[28]	Under the heading ‘[s]ubparagraph 39(1)(a)(i) – effect on registered native title rights and interests’, the Gunaikurnai AC contends that the environmental impacts of ‘the burning of brown coal’ will affect the Gunaikurnai People’s enjoyment of their native title rights and interests ‘by adversely affecting their country’ and that the Gunaikurnai People’s ‘connection to that country  is harmed by damage done to it both through the mining of coal and its environmental effects, as described above’. I understand the reference to ‘described above’ to be to the following statements in the Gunaikurnai AC’s contentions:
Australian brown coal production is predominantly within the Latrobe Valley. Brown coal is a well understood source of pollutants. Brown coal operations within the Latrobe Valley are a prime source of brown coal related pollution. Mine related pollution is a cause of respiratory illness in adjoining populations. The burning of coal adds substantially to the health burden in Australia and its cost. The risk to the adjoining communities from a mine fire is well borne out by experience with the Hazelwood mine fire. 

and

(c) notwithstanding the development of any ‘higher value products’ by AGL LY, any further brown coal development on Gunaikurnai country will: 
(i) have an adverse impact on surrounding areas of Gunaikurnai country including areas of cultural significance to the Gunaikurnai People;
(ii) have an adverse impact on the entirety of Gunaikurnai country and all areas of cultural significance to the Gunaikurnai People through greenhouse gas emissions contributing to climate change; and
(iii) have an adverse impact on the social wellbeing and health of communities in the Latrobe Valley, home to a large number of Gunaikurnai People;

(d) open cut mine development in the area of RL 2015 will further contribute to the destruction of the visual and cultural landscape of Gunaikurnai Country.

[29]	The Gunaikurnai AC also disputes the relevance of AGL’s statement that no native title rights have been exercised on the application area for the past 30 years, noting that some of their determined rights can be exercised without being in physical occupation. 
[30]	In his affidavit, Mr Roderick James Mullett, chairperson of Gunaikurnai AC, states that the Gunaikurnai People do not support the continued development of brown coal in the Latrobe Valley and as a result, the Gunaikurnai AC cannot justify supporting the grant of the licence, given their duty of care as custodians of Gunaikurnai country. Under the heading of ‘section 39(1)(a) criteria’ he further states that he is ‘personally saddened by the environmental harm that has occurred to our country to date’ and that he ‘would not like to see it occur any further.’ He also notes that ‘[t]he grant of RL 2015 and continued development of brown coal will have an adverse effect on the Gunaikurnai People’s ability to enjoy and exercise our native title rights and interests. In addition, our way of life, culture and traditions, and the development of our social, cultural and economic structures are under threat from continued burning of brown coal taken from the LaTrobe Valley.’ In summary, he further refers to the burning of coal contributing to ‘climate-induced change to Gunaikurnai country’ and the Gunaikurnai People’s concern about changes in sea level, the impact on country from changes in temperature and the effect of this change on bush tucker and fauna, such as ducks, and the effect on the coastal environment, including Gunaikurnai middens and meetings places and burial sites. The impact of climate change on soaks is given as an example, with many having dried up completely. He adds that it is not just country that is affected by mining but that Gunaikurnai People themselves suffer when country is hurt, noting that Gunaikurnai People are frustrated by their inability to meet their cultural obligations to country due to their lack of control over much activity. 

Consideration 
[31]	Under s 39(1)(a)(i) I am to examine the registered native title rights and interests which are enjoyed by the native title party over the proposed application area and to determine whether they will be affected by the proposed activities under the licence.  I note that the use of the word ‘enjoyment’ in s 39(1)(a) connotes a current and future state of affairs and not previous activities. Although there is no burden or onus of proof in these proceedings, as a matter of common sense it is only the native title party who can produce evidence on how those rights and interests are enjoyed and exercised on the subject land. A mere statement, contention or assertion that interests will be affected without evidence of their current use and the potential impact on them will not be sufficient to enable me to make findings on this point. Finally, when making an assessment under this paragraph I am required by s 39(2) to take into account existing non-native title rights and interests in the relevant area as well as the existing use of the land by other persons.
[32]	I agree with AGL’s contention that no evidence has been provided by the Gunaikurnai AC in relation to the exercise of native title rights on the Crown land within the application area where native title has been held to exist.
[33]	In relation to AGL and the State’s contention that the impact of the grant of the licence is not greater than that of the grant of the underlying exploration licence, I note that my task is not to compare the impact of the proposed grant with that of previous grants; my task is to consider the impact of the proposed grant as if the area was not subject to any resource tenement. Any existing use of the area is to be considered pursuant to s 39(2)(b).
[34]	It appears that the Gunaikurnai AC contends that the enjoyment of all their registered native title rights would be affected ‘by adversely affecting their country.’ While variably referring to ‘the grant of the licence,’ ‘the burning of brown coal’ and ‘the development of brown coal’, it is clear that the environmental concerns detailed in the contentions, which are said to have an impact on the Gunaikurnai People’s native title rights, are not resulting from the grant of the licence itself.
[35]	In fact, as noted above, the joint statement records the parties’ agreement, including that of the Gunaikurnai AC, that the grant of the licence does not permit mining activities to take place and that ‘any adverse impacts related to coal mining cannot derive from any activities carried out under RL 2015’, which is the subject of this Future Act Determination proceeding. 
[36]	Taking into consideration the following factors when evaluating s 39(1)(a)(i):
•	the non-exclusive nature of the native title rights held in part of the application area, being the Crown Land where native title has been determined to exist;
•	the history of extensive exploration activity on the application area since 1917;
•	the existence of EL4683 held by AGL over the application area and the fact that the parties entered into an agreement in relation to the grant of EL4684, which was cancelled and amalgamated into EL4683;
•	the permissible activities under a retention licence and the fact that the burning of brown coal is not an activity permitted as a result of the grant of the licence 
•	the nature of the proposed activity under the licence, particularly the fact that no ground drilling is planned unless a third party developer requires additional data over and above the detailed data already held by AGL; 
•	the operation of the non-extinguishment principle in s 24MD(3)(a) to the granting of the licence; and
•	the absence of any evidence of how members of the native title party enjoy their registered native title rights and interests
I find that it is unlikely that the enjoyment of the registered rights and interests will be significantly affected by the grant of the licence. 

Section 39(1)(a)(ii) – effect of grant on the way of life, culture and traditions 
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[37]	Part 5 does not record any agreement in relation to this criterion. 
[38]	AGL contends that grant of the licence will have little to no negative impact on the way of life, culture and traditions of the Gunaikurnai People. AGL is not aware that Gunaikurnai People have accessed or used the area of the licence for the past 30 years and the Gunaikurnai People have not previously opposed the grant of a licence over the application area and entered into an agreement in relation to the grant of EL4684. 
[39]	The State submits that it has acknowledged the Gunaikurnai People’s concerns and aspirations in relation to being involved in the management of their traditional country and has entered into a Traditional Owner Land Settlement Management Agreement with the Gunaikurnai AC. 
Gunaikurnai AC’s contentions
[40]	The Gunaikurnai AC makes the same contentions under this subsection as it does under s 39(1)(a)(v) – effect of grant on any area or site of particular significance – which I will consider below –  namely that they do not accept AGL’s contention that  the grant of the licence will have no effect on the three registered Aboriginal places located within the application area. They say that whilst the proposed work program does not include ground disturbing activities in that part of the licence where native title exits, there is no ‘imperative’ that the proposed work program will become an approved work plan under the MRSDA, or if it does, that such a work plan is not amended in the future to permit an adverse effect.
[41]	I refer to my summary of the evidence contained in Mr Mullett’s affidavit above at [30]. Particularly relevant under this criteria, in my view, is Mr Mullett’s statement that Gunaikurnai People suffer ‘when country is hurt’ as a result of mining, noting that his people are ‘frustrated by our inability to meet our cultural obligations to country due to our lack of control over much activity on Gunaikurnai country,’ adding that ‘[o]nce open cut mining is done, the land is poisoned. Our relationship with that land is changed forever and it is scarred.’ 
Consideration
[42]	The relevant way of life, culture and traditions of the native title party is as it exists and is expressed today. 
[43]	I note in relation to AGL’s contentions that the fact that the Gunaikurnai People in the past have not opposed the grant of tenements on the application area itself does not necessarily lead to the conclusion that they do not oppose the future act subject to this inquiry.
[44]	In my view, the grant of the licence may reinforce the Gunaikurnai People’s concern about their capacity to protect their country from harm, which they contend is required of them under their traditional law and culture. It may also reinforce the Gunaikurnai People’s concern about their capacity to control activities on their country. The fact, as submitted by the State, that the Gunaikurnai AC has entered into a Traditional Owner Land Settlement Management Agreement and therefore are involved in land management decisions, in my view, is not relevant. The fact that the matter is before the Tribunal indicates that it is not covered by the agreement. However, whilst I accept that the Gunaikurnai People have a strong position about other people using country and a cultural obligation to look after their country, I also need to take into consideration that the Gunaikurnai People’s determined native title rights are non-exclusive.  
[45]	The Gunaikurnai AC, under the future act provisions of the NTA, had the right to negotiate with AGL about the conduct of activities on their country in relation to the grant of the licence. That process has been exhausted without agreement being reached. The Gunaikurnai People will have the right to negotiate in relation to any further future act application in the application area. 
[46]	Ultimately, the question of impact is one of balance. In my view the evidence suggests that there will be some disruption or effect upon the Gunaikurnai People’s view of the potency and strength of their culture and traditions, but there will be no real or tangible interference with the way of life, culture and traditions of the Gunaikurnai People.

Section 39(1)(a)(iii) – effect of grant on the development of social, cultural and economic structures 
Areas of agreement between the parties
[47]	The parties agree that the grant of the licence will not have any greater impact on the development of social, cultural and economic structures of the native title party over and above the current arrangements between the parties in relation to the Crown land included within the former EL4684.
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[48]	Part 5 sets out that the Gunaikurnai AC, whilst agreeing with the other parties (see [47] above), notes that the cultural heritage protections under the agreement for the former EL4684 are broader than those under the AHA which would apply if the licence is granted.
[49]	AGL contends that the grant of the licence will have no significant negative effect on the development of social, cultural and economic structures of the Gunaikurnai AC, other than the economic impact that will result from the expiry of the agreements for EL4684 (now EL4683). AGL states that it is not aware of the Gunaikurnai AC’s use of the application area for social purposes. AGL contends that there will be the opportunity for the Gunaikurnai AC to submit quotes for contracting work for revegetation and rehabilitation. In this regard, AGL’s Strategic Planning Manager, Mr Weir, in his affidavit, notes that a ‘significant proportion of activities in relation to its rehabilitation and maintenance operations’ are contracted to external contactors and having reviewed the Gunaikurnai AC’s capability statement, believes there will be opportunities for them to submit quotes. He also states that the expiry of the agreements in relation to EL 4684 will impact economically on the Gunaikurnai AC, however ‘not significantly.’
[50]	The State does not make any submissions in relation to this criterion. 
Gunaikurnai AC’s contentions
[51]	The Gunaikurnai AC makes no further contentions. 
Consideration
[52]	Taking into consideration the following factors when evaluating s 39(1)(a)(iii):
•	there is no evidence or information before me of any tangible social, cultural or economic structures which would be affected either positively or negatively; 
•	AGL’s contentions that the grant of the licence has a positive (contracting opportunities in the rehabilitation and maintenance operations) and an insignificant negative effect (the expiry of the agreement for EL4684) on the Gunaikurnai AC’s economic structures; 
•	the existing non-native title rights and interests and the existing use of the application area, agreed between the parties and outlined in [20] above
I am of the view that there is no material before me to support a conclusion that the grant of the proposed licence will have any significant effect on the development of the native title party’s social, cultural or economic structures.

Section 39(1)(a)(iv) – effect on the freedom of access to the application area and their freedom to carry out rites, ceremonies or other activities of cultural significance 
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[53]	Again, AGL and the State submit that the grant of the licence will not have any greater impact on the native title party’s freedom of access to the application area and their freedom to carry out rites, ceremonies or other activities of cultural significance over and above the current arrangements between the parties in relation to the Crown land included in the former EL4684. Again, the Gunaikurnai AC agrees, but notes that the cultural heritage protections under the agreement for the former EL4684 are broader than those under the AHA which would apply to the licence if granted.
[54]	AGL contends that freedom of access to the adjoining Loy Yang A Mine site, operated by AGL, has been restricted for decades as part of AGL’s safety and security obligations; 89 percent of the application area is on private land and cannot be accessed and, access to the remaining 11 percent (most of which forms part of the Flynns Creek State Forest) can be accessed by the public. AGL is not aware that the Gunaikurnai People have accessed the unrestricted area or performed ceremonies or rites in the area, in the past 30 years. 
[55]	The State does not make any further contentions on this sub-criterion.
Gunaikurnai AC’s contentions
[56]	The Gunaikurnai AC makes no further contentions. 
Consideration
[57]	Taking into consideration the following factors when evaluating s 39(1)(a)(iv):
•	there is no evidence before me from the Gunaikurnai AC of the Gunaikurnai People accessing, or carrying out any rites, ceremonies or other activities of cultural significance on the application area; and
•	the existing non-native title rights and interests and existing uses of the application area
I conclude that it is unlikely that there will be any (or any significant) impact on the ability of the native title holders to access the application area and carry out activities of cultural significance.

Section 39(1)(a)(v) – effect of grant on any area or site of particular significance 
Areas of agreement between the parties
[58]	The parties agree that: 
•	there are three registered Aboriginal sites under the AHA in the application area and that these places are located in areas where native title has been extinguished; however, noting that the existence of native title is not relevant for the purposes of s 39(1)(a)(v); 
•	no evidence has been provided that the places are of ‘particular’ significance or that there are other areas or sites within the application area that are of particular significance in accordance with s 39(1)(a)(v); 
•	no evidence has been provided of previous cultural heritage work or reports undertaken in the application area or that the three sites will be adversely affected by the grant of the licence; 
•	AGL provided evidence that no ground disturbance is proposed in the vicinity of the sites and on the Crown land areas of the licence, being the area over which native title has been determined to exist. It is agreed that future variations of the work plan for the licence could propose ground disturbance in the vicinity of the sites but if significant ground disturbance was proposed, AGL agrees to undertake a Cultural Heritage Management Plan under the relevant State legislation.
Areas of disagreement noted in Part 5 and AGL/State contentions
[59]	Part 5 does not record any agreement in relation to this criterion. 
[60]	AGL relevantly contends that the three registered Aboriginal places will not be adversely affected by the grant of the licence as there are no ground disturbing works proposed. AGL also contends that the fact that a site is recorded is not necessarily sufficient on its own to establish that it is of particular significance to the native title party.
[61]	The State does not make any submissions in relation to this criterion. 
Gunaikurnai AC’s contentions
[62]	As noted above, the Gunaikurnai AC makes the same contention in relation to this sub-criterion as in relation to s 39(1)(a)(ii) – effect of grant on any area or site of particular significance, namely that they do not accept AGL’s contention that the grant of the licence will have no effect on the three registered Aboriginal places. It is their contention that whilst the proposed work program does not include ground disturbing activities in that part of the application area where native title exits, there is no ‘imperative’ that the proposed work program will become an approved work plan under the MRSDA, or if it does, that such a work plan is not amended in the future to permit an adverse effect.
Consideration
[63]	Section 39(3) provides ‘taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites’.
[64]	For the purposes of s 39(1)(a)(v), the Tribunal must make a value judgement about whether, from the native title party’s point of view, the area or site is special or different from the other land in respect of which the native title party say they have, or are recognised as having, native title rights and interests. This interpretation is consistent with the view that all of the native title holders’ country is significant to the native title holders, and that persons may speak of areas or sites that are of particular significance in accordance with their traditions.
[65]	The Tribunal’s focus under this sub-criterion is less on the rights conferred under the 	proposed licence than on the way these rights are likely to be exercised.
[66]	Taking into consideration the following factors when evaluating s 39(1)(a)(v):
•	the absence of any evidence that there are areas or sites within the application area that are of particular significance; 
•	the nature of the proposed activity under the licence, particularly the fact that no ground drilling is currently planned;
•	the parties’ agreement that it is possible that future variations of the work plan for the application area could propose ground disturbance in the vicinity of sites for example, as a result of a third party developer’s request; however, if significant ground disturbance was proposed, AGL would agree to undertake a Cultural Heritage Management Plan under the relevant State legislation; such a management plan would be created either because it is required by law, or if not required, because AGL voluntarily undertakes to create such a plan; therefore, the parties agree, protection will be afforded to the sites 
I conclude that the grant of the licence is unlikely to affect any areas or sites of particular significance to the native title party in accordance with their traditions. 

Section 39(1)(b) – the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land and waters where native title exists within the application area
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[67]	Part 5 states that the Gunaikurnai AC opposes the grant of the licence. 
[68]	AGL, referring to the decision in Western Desert Lands v Western Australia, contends that in cases where the future act has little impact on the enjoyment of native title rights and no interference with sites of significance, little weight should be given to this criterion by the Tribunal in circumstances, such as this, where the native title parties hold non-exclusive rights and interests. It further submits that the Gunaikurnai People were not opposed to exploration activities taking place on the application area when it entered into the agreement in relation to EL4684 in 2013. 
[69]	As noted above, the State submitted that it has acknowledged the Gunaikurnai People’s concerns and aspirations in relation to being involved in the management of their traditional country and has entered into a Traditional Owner Land Settlement Management Agreement with the Gunaikurnai AC. 
Gunaikurnai AC’s contentions
[70]	The Gunaikurnai AC contentions merely state that the Gunaikurnai People oppose the grant of the licence. Whilst not specifically addressing this sub-criterion in his affidavit, it appears that the statement made by Mr Mullett and the evidence in respect of s 39(1)(a)(i), which I have summarised above at [30], are also relevant under s 39(1)(b). In addition I note one further relevant statement in Mr Mullett’s affidavit, being that ‘[l]ots of activities are done on Gunaikurnai country, some of which Gunaikurnai people don’t like but we are prepared to accept them because they offer benefit to the whole community such as jobs. Coal mining development is not one they accept because the damage it causes to country is too great’. 
Consideration
[71]	There is no dispute that the Act does not give native title parties a right of veto. Although s 39(1)(b) is a beneficial provision, because it is only refers to the interests, proposals etc of the native title party, opposition to the doing of the relevant future act does not automatically lead to the Tribunal determining that the act cannot be done. Rather, it is a question of how much weight must be given to the native title holders’ interests, proposals, opinions or wishes in relation to the management, use or control of the land where native title exists. 
[72]	As contended by AGL, the Tribunal takes the approach that there is a difference between making a future act determination over an area where the native title holders have the right to possess, occupy, use and enjoy the land to the exclusion of all others, and making a determination over an area where the rights are non-exclusive and the capacity to exercise or enjoy other native title rights is seriously attenuated because of the exercise of non-native title rights.  
[73]	Also, less weight is given to the native title party’s interests, proposals, opinions or wishes  in matters where no significant impact in relation to the matters set out in s 39(1)(a) is established. 
[74]	As noted above, in my view, contrary to AGL’s contentions, the fact that the Gunaikurnai People in the past have not opposed the grant of tenements on the application area does not itself does lead to the conclusion that they do not oppose the future act.
[75]	Taking into consideration the following factors when evaluating s 39(1)(b):
•	the Gunaikurnai AC’s strong opposition, not only to the grant of the licence but to mining and processing of brown coal on Gunaikurnai country and its related environmental concerns;
•	the contentions made by the Gunaikurnai AC which relate mainly to the impact of mining rather than the activities authorised by the grant of the licence; 
•	the native title rights that exist in relation to the Crown Land within the application area where native title was determined to exist are non-exclusive; and
•	no evidence has been provided by the Gunaikurnai People that the three registered sites are of ‘particular’ significance or that there are other areas or sites within the application area that are of particular significance
I am of the view that little weight should be given to this criterion.

Section 39(1)(c) – economic or other significance of the grant of the licence to Australia, the State or the Territory of the application area and Aboriginal peoples who live in that area
Areas of agreement between the parties
[76]	The parties agree that any positive effect of a future act can be taken into account by the Tribunal.
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[77]	Part 5 states that AGL and the State agree that there are potential economic benefits for the State, noting AGL’s stated purpose of the grant of the licence is to retain rights to the brown coal located in the application area and to work with third party project proponents to develop:
•	commercial projects utilising improved coal processing technologies which are able to produce higher value products from brown coal such as diesel, fertiliser, upgraded coal and gas for both domestic and export markets (projects for which access to the application area’s coal reserve are said to be necessary); and
•	pilot and demonstration projects which will support the transition to a low-carbon economy with greenhouse emission reductions including clean coal processing, coal drying and carbon capture and storage (‘enabler projects’ which could facilitate further projects which are said to need to use the application area’s coal reserve).
If all environmental, planning, development or other approvals are obtained, the projects are said to have the potential to foster economic and social development in the Latrobe Valley, with employment opportunities in the construction and operational phases, providing potential benefits to the State through taxes and fees. 
[78]	AGL provides a number of reasons for applying for the licence and the purpose of it, which are summarised in the table set out in Annexure 2. The table also sets out the State’s reply to AGL’s contentions (which relates to the Advanced Lignite Demonstration Program referred to by AGL) and AGL’s response.
[79]	In his affidavit, Mr Weir notes that AGL is one of the few entities in Victoria with commercial experience in the supply and delivery of brown coal. He further states that AGL has received many approaches from developers and the company is currently working with several developers to advance project opportunities in the areas of Dry Carbon Products, Coal to Liquids and Coal to Fertilisers. He adds that it is not possible for AGL to determine which of the third party projects will succeed if the licence is granted. Multiple developers are seeking the coal resource certainty needed, and provided for if the licence is granted, to make their own financial commitments. Regarding economic benefits for the Gunaikurnai AC, AGL also contends, as noted above, that there will be the opportunity for the Gunaikurnai AC to submit quotes for contracting work for revegetation and rehabilitation.
[80]	The State submits that the grant of the licence has economic significance to the State, noting that at present the coal resources contained within the application area are estimated at 2,700 Mt. The potential royalties to the State ‘may be estimated at $ 30 million based on anticipated increases in the coal output per annum.’ Under the heading ‘significance of the grant of RL2015 to the Gunaikurnai’ the State notes the tenure of the application area and that the Gunaikurnai People have in the past consented to mineral exploration activity being undertaken in the application area.’  
 Gunaikurnai AC’s contentions
[81]	The Gunaikurnai AC contends that no economic benefit will result from the grant of the licence, noting that none of the matters identified in evidence for AGL would arise from activities authorised by the licence if granted. 
Consideration
[82]	I am required to evaluate the economic or other significance of the grant of the licence to the wider community as well as Aboriginal and Torres Strait Islanders who live in the application area. What is entailed in this task has been usefully set out in Drake Coal v Smallwood:
[102] ... First, the paragraph focuses on the significance of the act. It is not a generalised inquiry about the importance of exploration or mining to the economy (localised or national). It is a specific evaluation about the impact of the future act the subject of the inquiry. Accordingly, the Tribunal is not required under this paragraph to look any further than the evidence of how the proposed future act will impact on the economies and persons specified. Issues about the benefits of the mining industry to the health of the local, Queensland or Australian economy are not relevant to this paragraph. The only focus of this paragraph is the act in question and the only issue which the Tribunal is required to evaluate is the significance of the future act. The symbolic, cumulative or ripple impacts of the future act fall outside the purview of this paragraph.

[103] Second, the inquiry is not limited to the economic consequences of the proposed future act – see Western Australia v Thomas (1996) 133 FLR 124 at 175. The term “other significance” is potentially broad and can only be sensibly dealt with in terms of the evidence produced at a particular inquiry. I do not read the term “other significance” as being limited to impacts of an economic or wealth related nature. It could be that the doing of the future act could have beneficial impacts for the advancement of medical or related research. For example, the minerals proposed to be extracted could be critical for medical research, or any other field of human endeavour. The “significance” of granting the right to mine must therefore be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated from the extraction of the relevant material from the relevant land or waters. 
[104] Finally, the Tribunal is required to evaluate the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. It should be noted that the Act is not worded to limit the inquiry to members of the native title claim group. Rather, the inquiry focuses on the significance of the act to indigenous persons generally. For example, it may be that a proposed mine will generate jobs and related benefits to indigenous Australians who live nearby whether or not they are members of the claim group. The 1998 amendments to this paragraph were designed to ensure that in any proper inquiry the interests of local indigenous persons living and having responsibilities in the general area were given proper weight. 

[83]	As noted above, the future act the subject of this determination application is the grant of a retention licence. I have set out the activities permitted under such a licence at [18] – [22] above. The licence does not permit the mining of coal, a fact, as noted above, that all parties agree on. I agree with the Gunaikurnai AC that the retention licence is a holding tenement or, as AGL puts it, an intermediate tenement. The grant of the licence may be a necessary step in AGL’s development of new coal-related industries and may foster such development. However, in my view, many of the economic benefits outlined by AGL and the State are mainly based on the ability to extract coal from the application area, activities which are not permissible under a retention licence. In relation to third party projects which AGL says may proceed if the licence is granted, I note that in my view, it cannot be said at this stage that a project will definitely proceed. It is therefore more accurate to describe the project as of potential economic benefit. In my view, the possibility is too remote to give it significant weight. However, I note that the grant will have some potential economic benefit to the State as it will allow AGL to establish the economic viability of mining brown coal in the application area and retain rights to that coal, the value and volume of which, as noted by the State, is significant. 
[84]	It may be argued that the grant of the licence has other significance to Australia or the State of Victoria. I note, however, that neither AGL nor the State has explicitly made this argument. As noted in Drake Coal v Smallwood, such significance does not have to be of an economic or wealth-related nature; whether the grant is significant should be ‘viewed in an expansive sense.’ I have summarised AGL’s statements regarding the purpose of the grant of the licence. Some of the statements made, such as the intention to gradually decarbonise AGL’s generation portfolio by investigating new renewable and near-zero emission coal development initiatives, may be of significance in the context of the use of the word in s 39(1)(c). However, I am of the view that a clear link between the grant of the licence and this purpose has not been established in the evidence. 
[85]	Taking into consideration the above in my evaluation of s 39(1)(c), I am of the view that it has been established that the grant of the licence may be of some economic significance to the State of Victoria and, if jobs do become available and rehabilitation contacts can be secured, possibly to Aboriginal peoples who live in the application area. However, given the uncertainty about whether the referenced third party projects will proceed, I give little weight to this fact.

Section 39(1)(e) – any public interest in the doing of the act
Areas of agreement between the parties
[86]	The parties agree that the Tribunal:
•	is required to take into account the public interest in the protection of native title and also the public interest in the act being done; and
•	under this subsection, has previously accepted that there is a public interest in a thriving mining industry in Australia.
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[87]	Whilst part 5 does not record disagreement between the parties in relation to this criterion, it is noted elsewhere that the parties disagree as to whether the fact that the ‘State and Local Planning Policy Frameworks in the Latrobe Planning Scheme identify the coal resources in Latrobe City as being of national and State importance’ should be considered under this sub-criterion. The State and the Gunaikurnai AC are of the view the relevant provision for the consideration is s 39(1)(f). I agree with AGL that it should be considered under s 39(1)(e).
[88]	In summary, AGL contends that the Tribunal has accepted in other matters that there is a public interest in a thriving mining industry. AGL contends that the grant of the licence will enhance Victoria’s mining industry in the area of developing value-adding coal products. During the life of the licence, AGL will support proponents in projects which are expected to lead to new coal developments. Whilst third party developers could apply for separate stand-alone licences to develop these products, many have shown preference for engaging with established operators such as AGL. AGL further contends that the grant of the licence will have no adverse environmental effect because mining is not permitted and, as noted above, that State and Local Planning Policy Frameworks in Latrobe Planning Scheme identify the coal resource of the application area as being of national and State importance. A decision not to grant the licence would undermine the State planning scheme and as such be contrary to the public interest. 
[89]	The State notes, under the heading ‘Public interest in the grant of RL2015 (s 39(1)(e))’ that in response to its published notices under s 15(5) of the MRSDA in January 2014, it received:
•	one written objection which raises concerns about the impact of the grant of the licence on the environment; and
•	897 campaign objection emails raising the following concerns:
o		AGL has not delivered on its promise for a ‘clean coal’ power station
o	No reasons to justify AGL being allocated additional coal resources
o	The mine has sufficient coal for AGL’s medium term requirements
o	The climate change impacts of burning fossil fuels
o	The Latrobe Valley needs to transition away from coal
The objections have been assessed as not being ‘significant’. 
Gunaikurnai AC’s contentions
[90]	The Gunaikurnai AC states that the grant of the licence would be contrary to the public interest given the adverse environmental effects and concomitant impact on the interests of Gunaikurnai People. 
[91]	In his affidavit, Mr Mullett relevantly states that the Gunaikurnai People share the concerns of the wider community about climate change and its impact on country, noting that the ‘mines and plants in the Latrobe Valley are among the worst polluting in Australia.’ Mr Mullett outlines the detrimental health effects of burning brown coal and the impact of the fire in the Hazelwood coal mine in 2014, which is located 20 kilometres from the application area. He also notes that there are alternative ways to generate electricity which are supported by the Gunaikurnai People.
Consideration
[92]	I refer to the following observations in relation to this sub-criterion by former Tribunal Deputy President Sosso which I adopt:
Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income, and creates jobs and wealth for the Australian economy. Reference need only be made to the following observations of R D Nicholson J in Evans v Western Australia (1997) 77 FCR 193 at 215: 
	
“Where there is evidence the proposed act will have the effect of contributing to on-going exploration essential to the health of the mining industry and the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry.” 

The Tribunal accepts that the mining industry plays a pivotal role in maintaining Australia’s economic strength. The export income generated from mining is critical to the maintenance of Australia’s standard of living and its general economic health. However, despite the importance of the mining industry to local and State economies as well as the national economy, this does not mean that the other criteria in s. 39 are in any way subordinated to this consideration. What is highlighted in the above quote of R D Nicholson is that it is permissible to have regard to the importance of a vibrant mining industry. What neither His Honour, nor numerous Tribunal determinations have ever said, is that this is the only consideration that needs to be factored in when making a s.38 determination, or that it is of greater significance to the other factors. Each of the criteria have to weighed independently having regard to the nature of the evidence presented. 

[93]	As noted above, the Gunaikurnai AC submits there is a public interest in refusing to grant the licence based on the detrimental environmental and health impact of coal mining. The objections received by the State also raise concerns about the impact of the grant of the licence on the environment. In my view these environmental issues are more appropriately dealt with under s 39(1)(f) and refer to my consideration below.
[94]	Taking into consideration in my evaluation of s 39(1)(e) that coal resources in the Latrobe Valley are identified as being of national and State importance, that the application area is recognised as a State significant coal resource, and the potential of the grant to lead to the development of alternative, ‘greener’ technologies, I find that there is some public interest in the grant of the licence.

Section 39(1)(f) – any other matter that the arbitral body considers relevant
Areas of agreement between the parties
[95]	The parties agree that:
•	the Tribunal, under this subsection, has previously taken into account environmental issues; 
•	the coal resources in the Latrobe City have been identified as being of national and State importance in the Latrobe Planning Scheme; and
•	the protection and development of these resources subject to controls is provided for in the Scheme. The application area is specifically recognised as a State significant coal resource. 
I note that some of these matters, whilst recorded by the parties under sub-criterion s 39(1)(f) in their joint statement, have already been dealt with above under sub-criterion s 39(1)(e) at [85] – [93].
Areas of disagreement noted in Part 5 of the Joint Statement and AGL/State contentions
[96]	Part 5 does not record disagreement between the parties in relation to this criterion. 
[97]	In summary AGL contends that the grant of the licence will have a positive effect on the environment, as it will allow third party developers the opportunity to develop ground breaking new, green technologies (see a summary of the evidence above at [76] – [78]). The grant of the licence is an essential step in furthering AGL’s process of transitioning to a carbon-constrained or low-carbon energy provider in line with its Greenhouse Gas Policy of April 2015 and the State’s objective of transitioning to a low carbon economy.
[98]	The State does not make any submissions in relation to this criterion. 
Gunaikurnai AC’s contentions
[99]	The Gunaikurnai AC submits that the sub-criterion in s 39(1)(f) should not be narrowly construed and that the adverse environmental factors which they have outlined in their contentions and evidence (and I have summarised above at [27] – [30]) mitigate against a determination that the licence should be granted.
Consideration
[100]	The party’s contentions in relation to this paragraph largely overlap with those made in relation to some of the other sub-criteria in s 39(1). Essentially, AGL submits that the effect of the grant of the licence on the environment will be positive as it will aid the development of new, environmentally friendlier technologies. The Gunaikurnai AC on the other hand submit that the grant will have a negative impact on the environment, linking the grant of the licence to the mining of brown coal.
[101]	The effect on the natural environment is no longer a specific factor to be taken into account under s 39(1) (it was a separate sub-criteria in s 39(1)(a)(vi) until the NTA was amended in 1998) but the Tribunal is entitled to consider the effect on the natural environment as a relevant factor where that effect is related to other factors in s 39(1)(a). 
[102]	When considering the effect of proposed acts on the environment, the Tribunal generally has regard to the provisions of relevant State and Commonwealth environmental protection legislation and procedures. The environmental controls imposed by the government party can be taken into account because they may assist to ameliorate the effect of the future act on some of the factors under s 39(1)(a).
[103]	In the matter before me, however, I do not consider it necessary to outline the Victorian environmental legislation and procedures which apply to the grant of the licence. I do not regard this necessary as the environmental issues raised, in my view, do not relate directly to the grant of the licence. As noted above, the detrimental environmental impact referred to in the Gunaikurnai AC’s contentions relates to the impact of coal mining. Mining is not an activity permitted under the licence when granted. As also noted above, the parties have agreed that ‘any adverse impacts relating to coal mining cannot derive from any activities carried out under RL 2015’. I therefore do not consider that the Gunaikurnai AC has established that the grant of the licence will have a negative effect on the environment, and there is no need for me to consider the environmental protection provisions. 
[104]	In relation to AGL’s contentions, it is not clear to me how the grant of the licence is an ‘essential step’ in furthering AGL’s process of transitioning to a low carbon economy. Other than stating that third party developers have a preference for engaging with established operators such as AGL, rather than applying for their own licences, the evidence, in my view, has not established that the grant of the licence is essential in order for AGL meeting the goals set out in its Greenhouse Gas Policy. I further note that whether or not, as a result of the grant of the licence, third parties will develop ground breaking technologies, cannot be predicted at this stage and therefore is too removed as a possibility for me to give it significant weight. I therefore do not consider that AGL has established that the grant of the licence will have a significant (if any) positive effect on the environment. 

Conclusion
[105]	In making a determination pursuant to s 38(1) the Tribunal is required to carefully weigh up the factors outlined in s 39 based on the evidence before it. It is the exercise of a discretionary power. 
[106]	The Gunaikurnai AC clearly has a firm position on brown coal mining. Whilst it previously agreed to related tenements on its country, its position and concerns appear to be strong and non-negotiable, voiced passionately and apparently shared by some members of the wider community in the Gippsland region.  
[107]	However, the evidence submitted by AGL and the agreed facts between the parties lead to the key conclusion that the environmental concerns raised by the Gunaikurnai AC do not directly relate to the future act the subject of this determination. 
[108]	Further, the evidence submitted by the Gunaikurnai AC does not disclose that there will be any substantial effect on the matters set out in s 39(1)(a). The evidence of the potential economic significance and public interest in the act proceeding, albeit not very strong, supports a determination that the act may be done, even over the opposition of the native title party. As discussed, opposition to the grant of a licence by the native title party where the proposed act does not have a significant impact on the s 39(1)(a) matters, is of less weight. 
[109]	For completeness I note that in order to be able to mine on the application area, AGL would have to apply for a mining tenement. Such an application would be the subject of a further, separate future act process, including the exercise of the right to negotiate. If agreement cannot be reached on the grant of any future mining tenement, it may be the subject of a further future act determination application and a fresh consideration of the s 39 conditions. Some of the evidence submitted by the parties may be relevant to such an inquiry. 

Determination 
[110]	The determination of the Tribunal is that the grant of Retention Licence 2015 to AGL may be done.

JR McNamara
Member
28 October 2015 

Annexure 1

Parties’ contentions and evidence

AGL: 
•	Statement of contentions, 20 July 2015
•	Affidavit of Charles  McEwan Weir, Strategic Planning Manager AGL, 17 July 2015 
•	Statement of reply, 14 August 2015 
•	Supplementary affidavit Mr Weir, 14 August 2015 
•	Affidavit of Jeffrey Daegel Lynn, Partner Ashurst Australia, 17 August 2015 

Gunaikurnai AC:
•	Statement of contentions, 7 August 2015
•	Affidavit of Roderick James Mullett, Chairperson Gunaikurnai AC, 7 August 2015

State:
•	Statement of contentions, 21 July 2015, including index of documents
•	Amended Reply to statement of contentions, 17 August 2015 

Annexure 2

Grantee Party’s stated reasons for applying for the licence:

Grantee Party’s contentions	Grantee Party’s reply to Native Title Party’s contentions 	State’s (amended) reply to the statements of contentions	
AGL operates the Loy Yang A power station, which supplies 30 percent of Victoria’s power requirements. It uses brown coal, supplied by the adjacent open cut mine (MIN 5189), as the fuel source to generate electricity. AGL has applied for the licence to allow it to:
•	establish economic viability of mining brown coal in the application area and retain rights to that coal
•	gradually decarbonise its generation portfolio by investing in new renewable and near-zero emission coal development initiatives which cannot be met through its coal reserves from MIN 5189;
•	meet increasing interest from industry to establish in the Latrobe Valley and transform raw brown coal to value added products.

The grant of the licence will allow the opportunity for third party proponents to accelerate the development of pre-commercial brown coal upgrading technologies, via large scale demonstration projects which will produce high value energy projects. The joint State and Commonwealth Advanced Lignite Demonstration Program (ALDP) will foster economic and social development in the Latrobe Valley with employment opportunities in the construction and operational phases, providing benefits to the State through taxes and fees.	The grant of the licence is a necessary step in the development of new coal related industries and thereby its grant brings potential economic benefit to Victoria.

The proposed use of the application area, in particular the intention to provide certainty of access to the coal resource to potential developers of coal-to-products or clean coal processing, promotes the State’s objectives for economic development, as enunciated in the State Planning Policy Framework.	The ALDP is an initially funded by the Victorian and Commonwealth governments to support the development of large scale pre-commercial brown coal upgrading technologies to provide high value coal-based energy products with the objective of developing new industries that will bring jobs and investment to the Latrobe Valley. Since its launch in 2012, only one of the three projects selected to receive funding will be located at the Loy Yang A power station which will be the proposed location of a demonstration plant. 

It is noted that AGL corrected the State’s statement by noting that the statement contains an error as the project is not intended to be located at the power station, which is outside the area of ML 5189, but within the area of ML 5189. AGL adds that it did not discuss the project as it is not intended to be located on the retention application area.