Dene Solomon v Widi Mob
[2019] NNTTA 112
•27 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Dene Solomon v Widi Mob and Another [2019] NNTTA 112 (27 November 2019)
Application No: | WF2019/0008 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Widi Mob (WC1997/072)
(native title party)
- and -
Dene Solomon
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 27 November 2019 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of mining lease – uncontested application – parties unable to formalise s 31(1)(b) agreement – s 39(4) agreement to be given effect – act may be done subject to conditions |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 35(1), 38, 39, 109 |
Cases: | Walalakoo Aboriginal Corporation RNTBC v Kallenia Mines Pty Ltd & Anor [2019] NNTTA 91 (Walalakoo v Kallenia) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources NLl; Aurora Gold (WA) Ltd [1996] NNTTA 30; (1996) 133 FLR 124 (Western Australia v Thomas) |
| Representatives of the native title party: | Michael Pagsanjan, Principal, MPS Law Kai Senor, Senior Lawyer, MPS Law |
| Representative of the grantee party: | Dene Solomon |
| Representatives of the Government party: | Faye Mitchell, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision concerns an application made to the National Native Title Tribunal (the Tribunal) seeking a determination that mining lease M70/1351 (the lease) may be granted to Dene Solomon. The lease lies within the registered native title claim of the Widi Mob (WC1997/072). For the purposes of the negotiation procedure set out in s 31 of the Native Title Act 1993 (Cth) (the Act), the Widi Mob, Mr Solomon and the State of Western Australia (the State) are the negotiating parties.
Section 31(1)(b) of the Act requires the negotiating parties to negotiate in good faith with a view to obtaining the agreement of the Widi Mob to the grant of the lease. If, after six months, the parties are unable to agree, any of the parties may apply to the Tribunal for a determination that the act of granting the lease may be done.
In this matter, the parties agree to the grant of the lease but have been unable to meet the formal requirements of s 31(1)(b) of the Act.
The future act determination application
On 21 September 2016, the State gave notice, under s 29 of the Act, of its intention to grant M70/1351 Mr Solomon. The lease is approximately 1.2 square kilometres in size, and is located 49 kilometres south-easterly of Morawa, about 17 kilometres from the town of Perenjori, in Western Australia.
On 20 October 2019, Mr Solomon lodged a future act determination application (the Application) with the Tribunal, in relation to the grant of the lease. The Application satisfied the requirements under s 35(1) of the Act as it was made more than six months after the lease was notified, and no s 31(1)(b) agreement has been made. The Application describes the circumstances in which negotiation parties have not been able to execute a formal agreement.
The inquiry
I was appointed to constitute the Tribunal for the purposes of conducting an inquiry into the Application. The decision which I can make in determining the outcome of this inquiry, as outlined in s 38 of the Act is one of the following:
· the act must not be done; or
· the act may be done; or
· the act may be done subject to conditions to be complied with by any of the parties.
Having conducted the inquiry and heard from all parties, my decision is that the act, being the grant of mining lease M70/1351, may be done subject to a condition (outlined at Attachment 1). I considered the condition was appropriate based on information contained in the Application lodged by Mr Solomon. The Application outlined that activities conducted in accordance with the grant of the mining lease M70/1351 may ‘impair the use, exercise and enjoyment of native title rights and interests’.
Parties had the opportunity to comment on a draft condition, and amend that condition for consideration of all parties. The final condition in Attachment 1 was a result of those comments, and no party took issue with that condition being applied as part of this determination. I outline the course of the inquiry below.
The preliminary conference
I convened a preliminary conference on 14 November 2019, with parties attending. At the preliminary conference, it was outlined and confirmed that the Widi Mob and Mr Solomon reached agreement but were unable to carry that to execution. The representative for the Widi Mob clarified the circumstances in which there are outstanding signatures from members of the Widi Mob native title claim applicant to the relevant agreement – this was reiterated in the written summary provided as outlined at [13] below. In summary, complete execution was not possible for two reasons, firstly because two of the Widi Mob applicants are currently uncontactable and have been for some time, and secondly, one applicant had signed but did not have their signature witnessed correctly. That person had also been uncontactable since the signing. The steps outlined to make further contact were provided in the detailed chronology provided by the Widi Mob representative (as outlined at [14] below).
All parties agreed at the preliminary conference that they sought an uncontested determination from the Tribunal that the act could be done. I note the Widi Mob is legally represented.
At the preliminary conference, I explained my view that this matter could be dealt with in a single oral hearing – the draft directions were so cast to align with the Tribunal’s way of operating, as set out in s 109 of the Act, to be economical, informal and prompt in the conduct of inquiries. My directions reflected this and a hearing was scheduled for 25 November 2019. Those draft directions outlined the information I required from parties at the oral hearing. Following discussion with parties, those directions were issued on 19 November 2019.
The matters that I must take into account in making a determination are those set out in s 39(1) of the Act. The Act does not specify the weight to be afforded to each matter listed in s 39, that will depend on the evidence (see Western Australia v Thomas at 166). The directions allowed parties to provide the Tribunal, and all parties, with documentation prior to the hearing, and allowed parties the opportunity to present and discuss issues relating to s 39 of the Act orally.
Information from the Widi Mob
The Widi Mob representative was also directed to provide, in advance of the hearing, the following material and information for the purposes of this inquiry:
1. The circumstances of the Widi Mob applicant’s signing the relevant documents, including those who had not signed;
2. The circumstances and authority of MPS Law, the Widi Mob representative, to sign the Deed and heritage agreement.
On 19 November 2019, the Widi Mob representative provided a detailed statement and chronology of the negotiations for an agreement in regards to the grant of the lease, including the actions of the Widi Mob representative (MPS Law) and applicant. The statement included the terms of MPS Law’s engagement by the Widi Mob, and that MPS Law acts for the Widi Mob in relation to heritage agreements and future acts generally, pursuant to terms of engagement allowing for instructions to be obtained from a majority of the applicant. Such engagement and instructions occurred at a Widi Mob applicant meeting convened in person on 20 May 2019.
I sought further clarification from the representative of the Widi Mob regarding the date MPS Law was engaged by the Widi Mob applicant, and details of how the engagement of MPS Law was authorised. This information was provided on 21 November 2019. I note the following from that information:
· MPS Law was first engaged by the applicant on 3 November 2016.
· MPS Law received instructions, on a unanimous basis, to act for the Widi applicant at an applicant meeting on 20 May 2018.
· The instructions from the 20 May 2018 meeting were extracted by MPS Law in a letter to the Tribunal, and outlined that MPS Law had instructions to:
oobject to the expedited procedure statement in relation to all Prospecting and Exploration Licence Applications unless the proponent has signed a heritage agreement with the claim group and or other concerns have been addressed.
oact for the purposes of entering into and executing heritage agreements on behalf of the Widi Mob.
Information from the State and Mr Solomon
The State requires parties to sign a State Deed (which is a deed for the grant of a mining lease). The relevant Minister (or their representative) will execute the State Deed, as supplied to the parties by the Department of Mines, Industry Regulation and Safety (DMIRS) and after execution by all other parties to the State Deed. The Application made by Mr Solomon outlined that in July 2019, DMIRS, acting on behalf of the State, had advised that the State is not a party to the Deed and heritage agreement between the Widi Mob and Mr Solomon, and the State Deed was required to be signed by all parties. This included each individual listed as a Widi Mob applicant on the Tribunal’s Register of Native Title Claims.
Following the preliminary conference, the State was directed to provide the Mining Lease Application and any relevant documentation. The State provided this information on 21 November 2019, including the conditions and endorsements the State intends to impose on the lease (listed at Attachment 2 to this decision), and the Mining Proposal for Small Operations (the Mining Proposal). The State further provided some updated mapping of the lease and surrounds on 25 November 2019, prior to the oral hearing.
The Mining Proposal outlined the history of the lease, the proposed project, the intended work on the lease, environmental impacts, and the operation of the project. I note that the total area of disturbance is expected to be less than five hectares and no infrastructure will be built on the site. The project will operate for four to five months of the year, with four to six people being employed or contracted to work on the area.
Issues to take into account in making a determination
In making a decision, I must have regard to the criteria in s 39(1)(a) of the Act. These criteria include the effect of the mining lease on the Widi Mob’s: enjoyment of their registered native title rights and interests; way of life, culture and traditions; development of their social, cultural and economic structures; 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 party in accordance with their traditions.
I am also required to take into account the other matters specified in s 39(1), namely: the interests, proposals, opinions and wishes of the Widi Mob 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 Islander peoples who live there; the public interest in the mining lease; as well as 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 party. I must also take into account any other matter I consider to be relevant.
If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then I must take that into account in making my determination, 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).
The oral hearing
The oral hearing took place on 25 November 2019, with all parties attending. No party took issue with the Widi Mob representative’s statements, or the chronology of events and circumstances they had provided, nor with the materials provided by the State.
At the oral hearing, I outlined a draft condition for parties consideration, and they agreed that with the addition of such a condition, the ‘interests, proposals, opinions and wishes…in relation to the management, use or control’ of the native title party, relative to the lease, have been taken into account for the purposes of s 39 of the Act.
As noted at [8], I provided all parties with an opportunity to inspect and comment on a draft version of the condition I intended to impose. Noting Member Cooley’s comments in relation to applying conditions in future act determinations and their effect (Walalakoo v Kallenia at [175]), definitions are included as part of the condition. The Widi Mob representative provided comments on the draft condition, following which it was amended and finalised. No party took issue with the final form of the condition (see Attachment 1). The information provided in this inquiry indicates to me that all parties agree to the grant of the lease and there is a common understanding regarding the factors in s 39(1) of the Act.
Determination
I determine the grant of mining lease M70/1351 to Dene Solomon may be done subject to the condition set out in Attachment 1.
Helen Shurven
Member
27 November 2019
Attachment 1: Condition
The Grantee Party must not restrict or otherwise interfere with Cultural Obligations held by the Native Title Party in connection with the area covered by the Lease, provided that the Native Title Party has given at least 30 calendar days’ notice of the Cultural Obligations to the Grantee Party, or the restriction or interference is necessary for a Safety Reason or a Security Reason that relates to exploration activities on the Lease.
For the purpose of this condition, the following definitions apply:
Application Area means the lands and waters within the external boundary of the application for a determination of native title in the proceedings numbered WAD 31/2019
Cultural Obligations means those native title rights and interests recorded on the Register of Native Title Claims for the Native Title Party, namely:
·Conduct ceremonies on the Application Area;
·Participate in cultural activities on the Application Area;
·Maintain and protect places of importance under traditional laws, customs and practices on the Application Area;
·Visit and observe features of the landscape of cultural significance and teach the cultural, religious and mythical significance of such features on the Application Area;
·Store sacred or secret items in the area and to retrieve and use those objects on the Application Area;
·Control access to and use of the Application Area by other Aboriginal people or Torres Strait Islanders who seek access to or use of the lands and waters in accordance with traditional laws and customs.
Lease means mining lease M70/1351, once granted under the Mining Act 1978 (WA)
Grantee Party means Dene Solomon or the registered holder of the Lease
Native Title Party means the Widi Mob, being those persons who claim to hold native title in the area covered by the application for a determination of native title in the proceedings numbered WAD 31/2019, or where applicable, the people recognised as the common law holders of native title and included in the determination of native title made by the Federal Court of Australia in WAD 31/2019
Safety Reason means a belief, held on reasonable grounds, that there is an immediate risk to the health or safety of any person
Security Reason means a belief, held on reasonable grounds, that there is a significant risk of destruction or damage to property, or unauthorised use of facilities or equipment on the Lease area
Attachment 2: Endorsements and Conditions to be imposed on the lease by the State on grant
ENDORSEMENTS
The Lessee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Lessee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Lessee attention is drawn to the provisions of the:
• Waterways Conservation Act, 1976
• Rights in Water and Irrigation Act, 1914
• Metropolitan Water Supply, Sewerage and Drainage Act, 1909
• Country Areas Water Supply Act, 1947
• Water Agencies (Powers) Act 1984
The rights of ingress to and egress from, and to cross over and through, the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
The taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless current licences for these activities have been issued by DoW.
Advice shall be sought from the DoW if proposing any mining/activity in respect to mining operations within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
Measures such as drainage controls and stormwater retention facilities are to be implemented to minimise erosion and sedimentation of adjacent areas, receiving catchments and waterways.
All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
The taking of groundwater and the construction or altering of any well is prohibited without current licences for these activities issued by DoW, unless an exemption otherwise applies.
CONDITIONS
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary
buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Lessee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Lessee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
• the grant of the Lease; or
• registration of a transfer introducing a new Lessee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
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