Curlew Mine Pty Ltd & Another v Kevin Allen & Ors on behalf of Nyamal #1 - [2023] NNTTA 15

NATIONAL NATIVE TITLE TRIBUNAL

Curlew Mine Pty Ltd & Another v Kevin Allen & Ors on behalf of Nyamal #1 [2023] NNTTA 15 (11 May 2023)

Application No:

WF2022/0010

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

Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008)

(native title party)

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Curlew Mine Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	11 May 2023

Catchwords:	Native title – future act – application for determination in relation to proposed grant of mining lease – negotiating parties unable to formalise s 31(1)(b) agreement – s 39(4) ancillary agreement taken into account – act may be done
Legislation:	Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 37, 38, 39, 109, 151
Cases:	Derrick Smith & Ors on behalf of Gnaala Karla Booja v Ransberg Pty Ltd and Another [2017] NNTTA 69 (Gnaala Karla Booja v Ransberg) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources NL; Aurora Gold (WA) Ltd [1996] NNTTA 30 (Western Australia v Thomas)
Representative of the native title party:	Grace Manning-Davis, Arma Legal

Representative of the grantee party:

Kimberley Smith, Curlew Mine Pty Ltd

Representatives of the Government party:

Ruth Lavender, Department of Mines, Industry Regulation and Safety

Domhnall McCloskey, State Solicitor's Office

REASONS FOR DETERMINATION

This decision concerns whether the State of Western Australia (State) may grant mining lease M45/1267 (lease) to Curlew Mine Pty Ltd (Curlew).
In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act) the State gave notice of its intention to grant the lease, specifying the 'notification day' of 28 August 2019.
The proposed lease is located 65kms South-westerly of Marble Bar in the Pilbara region of Western Australia. The native title determination application made in Nyamal #1 WC1999/008 (Nyamal) covers 100% of the lease. Nyamal, as the registered native title claimant, is the 'native title party' in relation to the area of the lease: s 29(2).
Following the s 29 notice, the State, Curlew and Nyamal (the negotiation parties), were required to negotiate in good faith with a view to obtaining Nyamal's agreement to the grant of the lease with or without conditions: s 31(1)(b).
If, after six months, the negotiation parties have been unable to reach agreement, any of the parties may apply to the National Native Title Tribunal (Tribunal) for a determination of whether the act of granting the lease may be done: s 35.
On 20 December 2022, being at least six months after the notification day, Curlew lodged a future act determination application relating to the lease (application). Curlew’s application provided:
‘The Native Title Party and Grantee Party have reached agreement regarding the act. The Grantee Party executed the agreement on 11 November 2022 for mining on M45/1267 within the Nyamal #1 (WC1999/008) Claim Area. However, a Section 31 Deed has not been completed due to Arma Legal on behalf of Nyamal #1 (WC1999/008) Claim Area, requesting amendments to the terms of the Section 31 Deed. The Department of Mines, Industry Regulation and Safety (DMIRS) is not prepared to accept the proposed amendments to the Section 31 Deed.
DMIRS has recommended an application for an Uncontested Determination under Section 35 of the Native Title Act be lodged, to allow progress the grant of M45/1267, in the interim of DMIRS decision in relation to the proposed amendments to the Section 31 Deed by the Native Title Party.’
The President of the Tribunal has appointed me to constitute the Tribunal for the purposes of considering Curlew's application.
Section 36(2) of the Act prohibits the Tribunal from making a determination where there has been a failure to negotiate in good faith. All parties attended a preliminary conference before me on 18 January 2023, at which I issued directions for the conduct of the inquiry. During the conference, the parties contended that the terms of an agreement had been reached between Nyamal and Curlew, but an agreement between all negotiation parties had not been reached as required under s 31(1)(b). All parties confirmed that the application was unopposed and that there were no allegations of a failure to negotiate in good faith being raised by any party.
In compliance with my directions, all of the parties have filed contentions. The contentions of the State and Curlew were in the form of a joint statement.
The State also filed various documents including a tengraph quick appraisal of the lease, application and mining proposal for tenement, topographical map, Draft Tenement Endorsements and Conditions, Extra Conditions offered during negotiations, and searches of the Aboriginal Heritage and Inquiry System (AHIS) held under the Aboriginal Heritage Act 1972 (WA) (AHA). The AHIS records that there are no Registered Aboriginal Sites or Other Heritage Places recorded in the lease area.
By 23 February 2023, all parties had agreed to the determination being made on the papers in accordance with s 151(2) of the Act.
For the reasons outlined below, my determination is that the act may be done without conditions.

Determination

I must not make a determination in this matter if any negotiation party satisfies me that any other negotiation party did not negotiate in good faith: s 36(2). In this case, none of the parties challenged good faith, so it is not necessary for me to further consider that issue.
Section 38(1) of the Act provides that, unless s 37 applies, I must make one of the following determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
The exceptions set out in s 37 of the Act do not apply in this matter, as no agreement of the kind mentioned in s 31(1)(b) has been made, and no determination under s 36A has been made.
Section 39 of the Act prescribes the criteria for making a determination pursuant to s 38 and sets out the matters I must take into account, providing:
Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non-native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)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.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a)must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
The Act does not specify the weight to be afforded to each criteria listed in s 39; that will depend on the evidence: see Western Australia v Thomas at 166-167.
In Western Australia, where the negotiation parties have reached agreement in relation to the grant, the State requires all parties to sign a template deed (State Deed) meeting the formal requirements of s 31(1)(b). As set out above, here the negotiation parties have not entered into a State Deed, being an agreement of the kind mentioned in s 31(1)(b).
Nyamal and Curlew have however reached a separate agreement regarding the grant of the lease (Ancillary Agreement). The parties submit that the Ancillary Agreement addresses the effect of the grant of the lease on each of the matters set out in s 39(1)(a) and (b) of the Act to Nyamal’s satisfaction, and each party does not oppose a determination being made that the lease be granted to Curlew.
Before making a determination, the Tribunal ‘must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree’: s 39(4). I have taken into account the Ancillary Agreement, and as per s 39(4)(b), I need not take into account matters mentioned in s 39(1) to the extent that the matters relate to those issues: see Gnaala Karla Booja v Ransberg.
In this matter, I note Nyamal is legally represented by Arma Legal and the State by the State Solicitor’s Office. Nyamal have been informed and have had the benefit of legal advice and representation throughout this inquiry.
In making this determination, I have relied on the submissions, evidence and information provided by the parties and their representatives for the purposes of the inquiry.
Nyamal submit that the matters set out in s 39(1)(a) have been taken into account by Curlew and ‘are addressed in the Ancillary Agreement to its satisfaction and this may be taken into account by the Tribunal pursuant to section 39(1)(a) of the NTA in making its determination.’ They further submit the matters set out in s 39(1)(b) are addressed and that:
‘the interests, proposals, opinions and wishes of the Native Title Party in relation to the management, use or control of the relevant land and waters have been taken into account by the Grantee Party and are addressed in the Ancillary Agreement to the satisfaction of the Native Title Party.’
The joint statement of Curlew and the State also contends that the Ancillary Agreement addresses the effect of the grant of the lease regarding each of the matters set out in sections 39(1)(a) and (b) of the Act. Curlew submits that the interests, proposals, opinions and wishes of Nyamal in relation to the management, use or control of the relevant land and waters have been taken into account by the grantee and have been addressed in the Ancillary Agreement.
In addition to the matters addressed in the Ancillary Agreement, Curlew submits that the grant of the lease is of ‘economic significance to Australia, the State of Western Australia, the area in which the Tenement is located and the Aboriginal people who live in that area’ and that this may be taken into account by the Tribunal pursuant to s 39(1)(c). They also submit that the public interest supports the grant of the lease and that this may be taken into account by the Tribunal pursuant to s 39(1)(e). No evidence or further detail is provided to support these contentions, however such statements are supported by the State and not opposed by Nyamal. I have no evidence before me to refute such submissions.
In the joint submissions, the State relies on the statements made by Curlew in relation to the matters addressing s 39(1)(a),(b),(c) and (e) and ‘on that basis, agrees to the Tribunal taking those statements into account and having no further regard to the matters set out in section 39(1) of the Act.’
Having regard to the evidence before me, I take into account the Ancillary Agreement between Nyamal and Curlew, per s 39(4)(b), and the submissions made in this inquiry that such agreement addresses the effect of the grant of the lease on each of the matters set out in s 39(1)(a) and (b).
In taking the agreement of the parties into account, per s 39(4)(b), I also note the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (see s 109) and must ensure all parties have a reasonable opportunity to present their case and make submissions (see s 142).
The parties have not made submissions that I should make a determination that the act may be done subject to any conditions. Based on the information before me, I do not consider a determination made in this inquiry should be subject to any conditions.
The parties each do not oppose a determination being made under s 38 that the lease be granted to Curlew, with the State and Curlew ‘unequivocally’ agreeing to such determination.
Having conducted the inquiry, considered the evidence, and obtained submissions from all parties, including orally at a preliminary conference, my decision is that the act may be done.

Determination

The determination of the Tribunal is that the act, being the grant of mining lease M45/1267 to Curlew Mine Pty Ltd, may be done.

Lisa Eaton
Member
11 May 2023