Arimco Mining Pty Ltd/Jidi Jidi Aboriginal Corporation/Western Australia
[2005] NNTTA 80
•25 October 2005
NATIONAL NATIVE TITLE TRIBUNAL
Arimco Mining Pty Ltd/Jidi Jidi Aboriginal Corporation/Western Australia, [2005] NNTTA 80 (25 October 2005)
Application No: WF05/8
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
Arimco Mining Pty Ltd (grantee party/Applicant)
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Jidi Jidi Aboriginal Corporation (WAD72/98) (WC99/13) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 25 October 2005
Catchwords: Native title – future act – application for determination for the grant of exploration licence – native title party not opposed to grant – no evidence presented by native title party – determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 35, 38, 39(1), 146(b)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361, Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41 [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Western Australia v Jidi Jidi Aboriginal Corporation & Another (2002) 169 FLR 470
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Hearing dates: 17 August 2005
10 October 2005
17 October 2005
Counsel for the
native title party: Mr Marcus Holmes, Taylor Linfoot & Holmes
Representative of the
grantee party: Mr John Clarke, Wanati Pty Ltd
Representative of the
Government party: Ms Paola O’Neill, Department of Industry and Resources
Counsel for the
Government party: Mr Trevor Creewel, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
Background
On or about 3 April 1997, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of Exploration Licence E52/1159 (‘the proposed licence’) under the Mining Act 1978 (WA) to Arimco Mining Pty Ltd (‘the grantee party’).
The native title party in respect of these proceedings is the Jidi Jidi Aboriginal Corporation (Federal Court No.WAD72/98) being the registered native title body corporate for the common law holders of native title, the community of Nharnuwangga, Wajarri and Ngarlawangga People. Pre-combination native title claim WC95/83 (Nganawongka Wadjari and Ngarla – registered from 19 December 1995 to 1 July 1999) overlapped the proposed licence by 80.1% and held the procedural right to negotiate in respect of that proposed licence. Procedural rights were transferred to WC99/13 (Nharnuwangga Wajarri and Ngarlawangga – registered from 1 July 1999 to 13 March 2002) upon combination of WC95/83 with associated native title claims. The Federal Court made a determination that native title existed in relation to the subject area on 5 July 2001, and the Jidi Jidi Aboriginal Corporation was placed on the National Native Title Register on 28 February 2002.
The Tribunal notes that the following native title claim groups also partially overlap the proposed lease:
Gobawarrah Minduarra Yinhawanga (WC97/43), 19.9% overlap, registered 29 October 1999;
Innawonga People (WC98/69), 2.61% overlap, registered 29 September 1998.
Neither of the above claim groups held the right to negotiate in relation to the proposed licence at the time of s 29 notification.
On 12 May 1997, Clarrie Smith and Others on behalf of Nganawongka Wadjari and Ngarla, lodged an expedited procedure objection application in relation to the proposed licence. On 30 June 1997 it was determined by consent that the expedited procedure was not attracted, and accordingly the proposed licence became subject to the right to negotiate provisions of Part 2, Division 3, Subdivision P of the Act.
On 10 February 2005 the Department of Industry & Resources requested Tribunal mediation assistance pursuant to s 31(3) of the Act in relation to the proposed licence but mediation was terminated by Tribunal member Bardy McFarlane on 5 May 2005 without agreement being reached.
On 27 July 2005, being a date more than six months after the s 29 notice was given, the grantee party, Arimco Mining Pty Ltd, made an application pursuant to s 35 of the Act for a future act determination under s 38, asserting that, despite negotiations, the parties had been unable to reach agreement over the doing of the act owing to disagreement over the terms, conditions and content of a heritage protection agreement.
The inquiry
On 16 August 2005 the Tribunal and all parties received email correspondence from Mr Marcus Holmes, a legal practitioner representing the native title party, in the following terms:
‘…My client and I were unable to participate in the mediation because my client has no resources – this was stated to the NNTT et al at the time.
For the same reason, my client is likely to remain unable to participate in the proposed section 35 application, save that I am attending the Preliminary Conference by telephone.
My client, in its capacity as a PBC [Prescribed Body Corporate] holding determined Native Title, receives no funding from either the State or Federal Governments and PBC members are unable to fund legal advice to their PBC.
My client recognises that ultimately the tenement application E52/1159 will be granted, and my client does not oppose the grant, save that – as it has stated previously – it will require an agreed heritage agreement to have been signed by the parties before it will be able to participate in any heritage surveys in the tenement area …’
On 17 August 2005 I convened a Preliminary Conference during which Mr Holmes elaborated that his client wished to continue negotiating with the grantee party in relation to heritage protection, and understood that the proposed licence would be granted in any event but would like that grant to be subject to a suitable heritage agreement. Mr Holmes also reiterated that the native title party was not funded and would therefore not be able to participate in the s 35 inquiry. No challenge was made in relation to whether the grantee or Government parties had negotiated in good faith in relation to the proposed licence. Accordingly I made directions requiring, amongst other things, that the native title party provide contentions and evidence in relation to the inquiry by 26 October 2005.
On 27 September 2005 the Tribunal received further email correspondence from Mr Holmes advising that further negotiations with respect to heritage protection had been unsuccessful and confirming the native title party’s position in relation to the grant of the proposed licence:
‘.. As previously stated, due to lack of resources, our client will not be participating any further in this matter before the NNTT. As previously stated, our client does not oppose the grant of the tenement but will, of course, as stated in our email of 16 August, “require an agreed heritage agreement to have been signed by the parties before it will be able to participate in any heritage surveys in the tenement area”.
We look forward to being notified of the grant of the tenement in due course and will then seek that the company recommence the negotiations to make an agreement.’
All parties were provided with copies of this correspondence on 29 September 2005.
In light of the above advice I convened a Directions Hearing on 10 October 2005 to reconsider the conduct of the inquiry. On 30 September 2005 Mr Holmes advised by email that he would not be attending this hearing but sought ‘the result of the arbitration to be relayed to me once it is to hand.’ Thereafter the native title party did not participate further in the inquiry.
During the hearing of 10 October 2005, I invited submissions from the grantee and Government parties in relation to the conduct of the inquiry. Mr John Clarke, representing the grantee party, submitted that it was his preference that the Tribunal permit submissions from the grantee party, following which the Tribunal could assess the good intentions of the grantee party and make a finding on the relative merits of various heritage agreements offered to the native title party. Mr Trevor Creewel, counsel for the Government party, advised that in his view there was no legal impediment to a summary determination that the act could be done, and that it was open to the Tribunal to make the determination by consent given the native title party’s stated lack of opposition to the grant of the proposed licence. I adjourned the hearing to consider the parties’ submissions.
On 11 October 2005 the Government party advised that it undertook to impose a condition on the grant of the proposed licence in the event of a determination that the act may be done. On 12 October 2005 the Tribunal advised the Government and grantee parties that it considered in the light of the information provided by Mr Holmes on behalf of the native title party (referred to above) a consent determination was appropriate. On 13 October 2005, the Government party clarified by email the nature of its proposed condition:
“In respect of the area covered by this licence if the Nharnuwangga, Wajarri and Ngarlanwangga native title holder (WAD0072_98) sends a request by pre-paid post to the licensee's or agent's address, not more than ninety days after the grant of this licence, the licensee shall within thirty days of the request execute in favour of the Nharnuwangga Wajarri and Ngarlawangga native title holder the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups and the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC).”
The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
On 17 October 2005 at a further hearing attended by representatives of the grantee and Government parties I confirmed that the Tribunal considered, on the basis of the material before it, including the information provided by Mr Holmes, that the native title party consents to a determination that the act can be done, and consistent with existing practice would be prepared to make such a determination on the basis of that consent. Mr Clarke advised that he had considered the grantee party’s position and was now prepared to agree to an unconditional consent determination provided that the Government party’s proposed condition was acknowledged in that determination, thereby providing a final opportunity for the native title party to enter into a heritage protection agreement. The Government party also confirmed that an unconditional determination by consent was supported by the evidence and appropriate in the circumstances.
Conclusion on consent determination
The native title party is legally represented by Mr Holmes and there is nothing in the facts of this matter which makes a consent determination inappropriate. Mr Holmes has reiterated in writing on at least two occasions that the native title party does not oppose the doing of the act and does not intend to participate in the inquiry but rather will await the Tribunal’s determination that the act be done. I find that in so doing, the native title party has consented to the doing of the act.
Alternative findings in support of a determination
In Western Australia v Jidi Jidi Aboriginal Corporation & Another (2002) 169 FLR 470 (‘Jidi Jidi No.1’), the Tribunal declined to make a determination by consent because it was not satisfied that the Jidi Jidi Aboriginal Corporation had properly consulted and obtained the consent of the common law holders of native title as required by Regulation 8(2) of the Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cth), in relation to a ‘native title decision’. Native title decision means a decision to do, or agree to do any act that would affect native title. Prima facie it could be said that the grant of an exploration licence is likely to affect native title. As the Jidi Jidi Aboriginal Corporation in the present matter is represented by a legal practitioner, who has advised that his clients do not oppose a determination, I am prepared to infer that the required procedures leading to that decision have been followed. However, if for some reason this is not the case, leading to doubts about the native title party’s consent I have, in the alternative, dealt with this matter on the same basis as that in Jidi Jidi No.1. That matter also dealt with an exploration licence granted under the Mining Act and the native title party tendered no evidence.
Pursuant to s 146(b) of the Act I adopt relevant findings from Jidi Jidi No.1 on the law and relating to the factors to be taken into account under s 39(1) of the Act in making a determination especially:
the applicable law (paras [14]-[15];
the nature of an exploration licence and activities permitted by it (paras [17]-[18];
the effect of the act on - the enjoyment of registered native title rights and interests (s 39(1)(a)(i)), the native title party’s way of life, culture and traditions (s 39(1)(a)(ii)), the development of their social, cultural and economic structures (s 39(1)(a)(iii) and their freedom of access and freedom to carry out rites, ceremonies and other activities (s 39(1)(a)(iv)) (paras [26]-[31]); and
any public interest in the doing of the act (s 39(1)(b)) (para [42]).
In summary, the native title party has produced no evidence relating to the s 39(1)(a) factors, making it impossible for the Tribunal to determine in the particular circumstances of this case that the exploration activities permitted under the proposed licence will have an affect on the native title party’s enjoyment of its registered native title rights and other factors in s 39(1)(a) and if so to what extent.
With respect to s 39(1)(a)(v) – the effect of the grant on sites of particular significance to the native title party in accordance with their traditions – there is no evidence of the existence of such sites in the area of the licence covered by the Jidi Jidi Aboriginal Corporation’s determination. The Government party has provided evidence of one site registered pursuant to the Aboriginal Heritage Act 1972 (WA) which appears to be on the Interim list, has open access, no restrictions and is an artefact/scatter site which is on the area of the Gobawarrah Minduarra Yinhawanga claim. There is no evidence of its significance to the Jidi Jidi Aboriginal Corporation or the other claimant groups.
The grantee party’s position is that there are two heritage protection agreements it is prepared to enter into. The first, is one in the same terms as the Indigenous Land Use Agreement (ILUA) which was entered into at the same time as the determination of native title and which deals with Aboriginal heritage protection where an exploration licence is proposed exclusively over the determined area. In this case the ILUA is not applicable because the proposed licence extends beyond the Jidi Jidi Aboriginal Corporation’s determined area. Despite this, the grantee party maintains that as the native title holders have agreed to a process for site protection within the determined area it should be prepared to accept it in this case even if the proposed licence extends beyond it. The grantee party has executed a heritage agreement based on the template ILUA and sent it to Mr Holmes, but been advised that it is unacceptable. The second heritage agreement acceptable to the grantee party is the Regional Standard Heritage Agreement (RSHA) negotiated and entered into by peak industry groups and the native title representative body for the area – the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC). As agreement about heritage protection has not been reached I accept that neither of the above agreements is acceptable to Mr Holmes’ clients. Nevertheless, I am satisfied that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act and that its preparedness to enter into either of these agreements is indicative of its willingness to carry out a site survey. In addition, Mr Clarke has also advised that the grantee party has entered into a RSHA with the other native title claim groups overlapping the proposed licence area, despite the fact that those two groups were not registered at the time of the s 29 closing date and had therefore had no right to negotiate.
With respect to the protection of sites of significance I adopt the findings of the Tribunal in Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (at 209-211) under the heading ‘(ii) Section 39(1)(a)(v)’ up to the heading ‘Evidence’ which sets out the legislative requirements for the protection of Aboriginal sites. It is an offence under the Aboriginal Heritage Act to interfere with a site whether or not it is listed on the register unless the person charged can prove that he or she did not know and could not reasonably be expected to have known, that the place was a site under that Act. I find that the protective regime makes it unlikely that sites will be interfered with even if subsequent evidence reveals their existence.
The Government party’s proposed condition also adds to the protective regime (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41 [2005] NNTTA 1 (1 February 2005), Hon C J Sumner) and is an option which is available to the native title party if it wishes to take it up.
Under s 39(1)(f) of the Act the Tribunal can have regard to anything else it considers relevant. The stated position of the native title party in not opposing the grant is a relevant factor supporting a determination.
In summary my finding is that even if there are questions about the procedures followed by the native title party in respect of consent to a determination that the act may be done I am satisfied that such a determination is appropriate based on a consideration of the factors in s 39(1) of the Act, the lack of evidence in relation to them, the existence of the State regime based on the Aboriginal Heritage Act for the protection of sites and the non opposition of the native title party to the grant.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E52/1159 to Arimco Mining Pty Ltd, may be done.
Hon C J Sumner
Deputy President
25 October 2005
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