33Conciliation and review

33 Conciliation and review

(1) If an applicant under section 31 notifies the Minister that the Corporation has granted permission on any conditions to which the applicant objects, or has refused permission, the Minister shall arrange to meet with the Corporation and the applicant to attempt to resolve the matter by conciliation. (2) If, at the end of the conciliation proceedings, the conciliation is unsuccessful, the applicant and the Corporation shall, within 60 days thereafter, appoint an arbitrator to review the decision of the Corporation. (3) If: (a) the applicant and the Corporation are unable to appoint an arbitrator within that period; and (b) the applicant requests the Minister to appoint an arbitrator; the Minister shall appoint an arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially. (4) In reviewing the decision of the Corporation, the arbitrator shall consider the following factors: (a) the effect that the entry onto the relevant land and the carrying out of mining operations on the land would have on: (i) the preservation and protection of the lifestyle, culture and traditions of the traditional owners of the land; (ii) the proposals and wishes of the traditional owners of the land about its management, use and control; (iii) the development of the social, cultural and economic structures of the traditional owners; and (iv) the freedom of access of the traditional owners of the land and their freedom to carry out, in accordance with tradition, rites, ceremonies and other activities on the land; (b) the suitability of the applicant to carry out the proposed mining operations and the applicant’s capacity, in carrying out those operations, to minimise any disturbance to the traditional owners and the land; (c) the preservation of the natural environment; (d) the economic and any other significance of the proposed mining operations to the State of Victoria and to the Commonwealth. (5) The arbitrator shall make a decision: (a) confirming the decision of the Corporation; (b) varying the decision of the Corporation; or (c) setting aside the decision of the Corporation and making a decision (being a decision that the Corporation could have made under this section) in substitution for the decision of the Corporation. (6) The decision of the Corporation as varied by the arbitrator, or a decision made by the arbitrator in substitution for the decision of the Corporation shall, except for the purposes of subsection (2), be deemed to be a decision of the Corporation and has effect, unless the arbitrator otherwise determines, on and from the day on which the decision of the Corporation had effect.