Barrick (Plutonic) Pty Limited v Miriam Atkins and Others on behalf of Gingirana and Others

[2015] NNTTA 58

NATIONAL NATIVE TITLE TRIBUNAL

Barrick (Plutonic) Pty Limited v Miriam Atkins and Others on behalf of Gingirana and Others [2015] NNTTA 58 (4 December 2015)

Application No:                WF2015/0022

IN THE MATTER of the Native Title Act1993 (Cth)

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

Barrick (Plutonic) Pty Limited (grantee party)

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Miriam Atkins, Slim Williams, Stan Hill, Grace Ellery, Timmy Patterson, Darryl Jones and Robert Hill on behalf of Gingirana (WC2006/002) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:  Mr JR McNamara, Member

Place:  Brisbane

Date:  4 December 2015

Catchwords:  Native title – future act – proposed grant of mining lease – parties consent to grant – parties unable to formalise s 31(1)(b) agreement – Tribunal to take into account any agreement on issues relevant to determination – the act may be done

Legislation:  Native Title Act 1993 (Cth), ss 31(1), 37, 38, 39(1), 39(4).

Mining Act 1978 (WA)

Cases:Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’)

Representative of the     Mr Rhys Davies, DLA Piper

grantee parties                Ms Jade Nelson, DLA Piper

Representative of the     Mr Malcolm O’Dell, Central Desert Native Title Services
first native title party      Ms Felicity Noonan, Central Desert Native Title Services

Representatives of the     Ms Sarah Power, State Solicitor’s Office

Government party           Ms Sharon Wilkinson, Department of Mines and Petroleum

REASONS FOR DETERMINATION

1. This decision concerns an application made to the National Native Title Tribunal seeking a determination that a mining lease may be granted, where the parties consent to the grant of the lease but have been unable to meet the formal requirements of the Native Title Act 1993 (Cth) (‘the Act’).

2. In September 2010, the State of Western Australia gave notice of its intention to grant mining lease M52/748 to Barrick (Plutonic) Pty Limited, formerly known as Barrick (Plutonic) Limited, under the Mining Act 1978 (WA). The lease is located approximately 194 kilometres south of Mount Newman in the Shire of Meekatharra. The land and waters over which the tenement is proposed to be granted is subject to the Gingirana registered native title claim.

3. Once a proposal involving the creation of a right to mine is notified under the Native Title Act, the proponent and the State must negotiate in good faith with any registered native title claimants or registered native title bodies corporate within the land or waters affected by the proposal, with a view to obtaining the agreement of each native title party. If after six months the parties are unable to agree, then any of the parties may apply to the Tribunal for a determination. 

4. Following notification, the parties began to negotiate about the grant of the mining lease. These negotiations culminated in a meeting in March 2015, where the claim group decided, in accordance with their traditional laws and customs, to enter into an agreement in which Gingirana gave its consent to the grant of the lease. However, due to the logistical and financial difficulties associated with obtaining the signatures of the registered native title claimants, Gingirana has been unable to give effect to this consent through the execution of a tripartite agreement or State Deed.

5. On 19 September 2015, Vango Mining Limited for and on behalf of the participants in the Plutonic Dome Joint Venture, namely Vango Mining Limited and Dampier (Plutonic) Pty Ltd, made an application to the Tribunal seeking a determination that the mining lease may be granted. The application was made on the basis that the participants in the joint venture are entitled to the full beneficial ownership of the rights proposed to be conferred by the lease and have been authorised to prosecute the application on behalf of Barrick.

6. On 21 September 2015, I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the application. As the member conducting the inquiry, I am required to make one of three determinations pursuant to s 38 of the Act: the mining lease must not be granted; the mining lease may be granted; or the mining lease may be granted subject to conditions to be complied with by any of the parties.

7. In making a determination, I must have regard to the criteria in s 39(1)(a) of the Act. These include the effect of the mining lease on: the enjoyment by Gingirana of their registered 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 and other activities of cultural significance; and any area or site of particular significance to them in accordance with their traditions.

8. I am also required to take into account the other matters in s 39(1), namely: the interests, proposals, opinions and wishes of Gingirana in relation to the management, use or control of the land or waters affected by the mining lease; the economic or other significance of the mining lease to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in the grant of the mining lease; 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 Gingirana. I must also take into account any other matter I consider to be relevant.

9. The application seeks a determination that the lease may be granted by consent. The application states that, although the parties have not reached agreement about the grant of the lease within the meaning of the Act, the joint venture participants have entered into an agreement with Gingirana which addresses the matters in s 39(1)(a).

10. There is no suggestion these bilateral agreements are agreements of the kind referred to in s 31(1)(b) of the Act. As President Webb observed in Aston Coal 2 v Gomeroi People, what is required under s 31(1)(b) is agreement between the ‘negotiation parties’ (that is, an agreement or agreements between each grantee party, each native title party and the Government party). If there were such an agreement, then the Tribunal would be barred from making a determination: see s 37 of the Act.

11. If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then in making my determination I must take that agreement into account, and need not to into account the matters in s 39(1) to the extent those matters relate to the issues agreed: see s 39(4) of the Act. To this end, I directed the parties to confer for the purpose of reaching agreement on issues relevant to the determination and to file a statement of agreed facts.

12. The filed statement of agreed facts outlines the following areas of agreement:

    (a)The State has complied with the requirements of s 31(1)(a) of the Act.

    (b)The parties have negotiated in good faith in accordance with s 31(1)(b).

    (c)Barrick and Gingirana:

    (i) have addressed the effect of the leases on each of the matters in s 31(1)(a) to their mutual satisfaction in a bipartite Mining Agreement;

    (ii) agree that the grant of the leases will have no significant adverse effect on the s 39(1)(a) matters; and

    (iii) consent to the Tribunal taking those facts into account in making its determination and, on that basis, to the Tribunal having no further regard to the matters in s 39(1).

    (d)The State relies on the statements outlined above and, on that basis, consents to the Tribunal taking those statements into account and having no further regard to the matters in s 39(1).

    (e)The parties:

    (i)    have conferred on the matters in ss 39(1)(b)-(f) and agree to make no further submissions on those matters; and

    (ii)   consent to a determination that the grant of the mining lease may be done.

13. Taking into account the matters outlined above, I make the following determination.     

Determination

1. The determination of the Tribunal is that the act, namely the grant of mining lease 52/748 to Barrick (Plutonic) Pty Limited, may be done.

Mr JR McNamara
Member

4 December 2015