Background

Many Queensland Regional and Rural local governments are required to undertake routine annual maintenance and flood damage repair works to their gravel road network. In some cases, councils are reliant on annual funding through State and Commonwealth Governments under funding arrangements such as the Natural Disaster Relief and Recovery Arrangements.

These works are generally undertaken in a narrow seasonal works window dictated by the weather and are also subject to funding expenditure deadlines attaching to funding.

The completion of this work relies heavily on council road crews or contractors, machinery availability and access to gravel.

The gravel is generally sourced either from local government operated pits accessed under a sales permit which is issued to the local government under the Forestry Act 1959 (Qld) (“Forestry Act”) by the Queensland Department of Agriculture and Fisheries, or from smaller quarries, often family run businesses, which also hold a sales permit issued under the Forestry Act.

Transport and associated costs dictate that the gravel supply zone must be no more than about 60 or 70 km from the works area otherwise transport costs make it uneconomical to cart longer distances. This necessitates a network of pits being required along a gravel road to maintain the road and ensure safety for road users and to ensure maintenance standards are maintained.

The changes

The Queensland Department of Agriculture and Fisheries has had a change of policy whereby it has decided that it could not validate sales permits for the purposes of the Native Title Act 1993 (Cth) (“NTA”) using section 24KA, 24JA or 24GE of the NTA.

The new approach has seen the Queensland Department of Agriculture and Fisheries vary the conditions of existing sales permits to require the permit holder to negotiate an Indigenous Land Use Agreement (“ILUA”) under the NTA to validate the regrant of current sales permits.

One of the effects of this policy is that a number of sales permits have been cancelled, with more permits expiring on a monthly basis which will result in an inability for councils and the Department of Main Roads to access gravel to undertake essential road maintenance until an ILUA is registered.

By requiring the sales permit holder to negotiate an ILUA effectively shifts the compensation liability for any effect on native title from the State under section 24KA, 24JA or 24GE of the NTA to the sales permit holder.

It also requires that the council or sales permit holder enter into voluntary negotiations with a native title party, where they can be identified, to validate the sales permit.  The cost of these negotiations including time and money are often substantial and exceed the multi-year value of the resource being accessed.

The topic will be an emerging issue for Queensland rural and regional local governments to address in order to meet funding deadlines, safety obligations and community expectations for the standard of the gravel road network.

If you would like further information in relation to this issue, please feel free to contact Andrew Kerr, Partner or Martin Wright, Senior Associate in our Cairns Office

Moray & Agnew are approved supplier to Queensland Local Governments through the Local Buy Legal Services Panel.