Dampier (Plutonic) Pty Ltd v Miriam Atkins and Others on behalf of Gingirana and Others

[2015] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Dampier (Plutonic) Pty Ltd v Miriam Atkins and Others on behalf of Gingirana and Others [2015] NNTTA 59 (4 December 2015)

Application No:                WF2015/0023, WF2015/0024

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into future act determination applications

Dampier (Plutonic) Pty Ltd (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) (first native title party)

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Evelyn Gilla, Rex Shay, William Shay, Leonie Gentle, Russell Little, Audrey Shar and Troy Little on behalf of the Yugunga-Nya People (WC1999/046) (second native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE

Tribunal:  Mr JR McNamara, Member

Place:  Brisbane

Date:  4 December 2015

Catchwords:  Native title – future act – proposed grant of mining leases – 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 acts 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 party                   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

Representative of the     Mr David Farrell, Yamatji Marlpa Aboriginal Corporation
second native title party  

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 two applications made to the National Native Title Tribunal seeking determinations that mining leases may be granted, where the parties consent to the grant of the leases but have been unable to meet the formal requirements of the Native Title Act 1993 (Cth) (‘the Acts’).

2. In September 2007, the State of Western Australia gave notice of its intention to grant mining leases M52/781 and M52/782 to Plutonic Operations Ltd under the Mining Act 1978 (WA). The tenement applications were subsequently transferred to Barrick (Plutonic) Limited and finally to Dampier (Plutonic) Pty Ltd. There is no dispute that Dampier is the ‘grantee party’ for the purposes of the Act. The leases are located approximately 144 kilometres north of Wiluna in the Shire of Meekatharra, Western Australia. The land and waters over which the tenements are proposed to be granted are subject to the registered native title claims of the Gingirana and the Yugunga-Nya People.

3. Once a proposal involving the creation of a right to mine is notified under the 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 a period of negotiations, the Yugunga-Nya People gave their consent to the grant of M52/781 and M52/782. The consent of the Yugunga-Nya People was given effect in a tripartite Deed for Grant of Mining Tenement, or State Deed, entered into between Dampier, the State and the Yugunga-Nya People on 8 July 2013. The Tribunal was subsequently given a copy of the State Deed in accordance with the Act.

5. Negotiations were also entered into with the Gingirana claimants and, at a meeting in March 2015, the claim group decided, in accordance with their traditional laws and customs, to enter into an agreement in which Gingirana gave its consented to the grant of the leases. 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 its consent through the execution of a State Deed.

6. 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, made applications to the Tribunal seeking determinations that the mining leases may be granted. The applications were 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 leases and have been authorised to prosecute the applications on behalf of Dampier.

7. 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 applications. As the member conducting the inquiry, I am required to make one of three determinations pursuant to s 38 of the Act: the mining leases must not be granted; the mining leases may be granted; or the mining leases may be granted subject to conditions to be complied with by any of the parties.

8. 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 leases on: the enjoyment by the native title parties 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 the native title parties in accordance with their traditions.

9. I am also required to take into account the other matters in s 39(1), namely: the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the land or waters affected by the mining leases; the economic or other significance of the mining leases 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 mining leases; 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 the native title parties. I must also take into account any other matter I consider to be relevant.

10. The applications seek determinations that the mining leases may be granted by consent. The applications state that, although the parties have not reached agreement about the grant of the leases within the meaning of the Act, the joint venture participants have entered into agreements with the native title parties which address the matters in s 39(1)(a).

11. There is no suggestion these bilateral or trilateral 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.

12. 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 take 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.

13. 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)Dampier, Gingirana and the State have negotiated in good faith in accordance with s 31(1)(b).

    (c)Dampier 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)Dampier, Gingirana and the State:

    (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 leases may be done.

14. The statement also outlines the fact that Dampier, the Yugunga-Nya People and the State have agreed to the grant of the mining leases in a tripartite agreement or State Deed. The Yugunga-Nya People have, through their representative, confirmed that they consent to a determination that the act may be done.

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

Determination

1. The determination of the Tribunal is that the acts, namely the grant of mining leases 52/781 and 52/782 to Dampier (Plutonic) Pty Ltd, may be done.

Mr JR McNamara
Member

4 December 2015