Derrick Smith & Ors on behalf of Gnaala Karla Booja v Ransberg Pty Ltd and Another

[2017] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Derrick Smith & Ors on behalf of Gnaala Karla Booja v Ransberg Pty Ltd and Another  [2017] NNTTA 69 (27 October 2017)

Application No: WF2017/0016

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

Derrick Smith & Ors on behalf of Gnaala Karla Booja (WC1998/058)

(native title party)

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Ransberg Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	President RJ Webb QC
Place:	Perth
Date:	27 October 2017

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) agreements to be given effect – act may be done
Legislation:	Native Title Act 1993 (Cth) ss 31, 31(1)(a), 31(1)(b), 36(2), 37(a), 38, 39(1), 39(4)
Representatives(s) of the native title party:	Peter Nettleton, South West Aboriginal Land and Sea Council

Representative(s) of the grantee party: Ms Emily Wilson, Castledine Gregory

Representatives(s) of the Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Ms Faye Mitchell, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. This determination that the State of Western Australia may grant mining lease M70/1240 to Ransberg Pty Ltd is made in the absence of an agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). The agreement referred to in s 31(1)(b) is the agreement of the native title party to the doing of the proposed act, with or without conditions. Had there been an agreement of that kind, the Tribunal would be barred from making a determination by s 37(a) of the Act.

2. Mining lease M70/1240 is approximately 84 hectares in size and is located approximately 40 kilometres south east of Perth. The native title claim of the Gnaarla Karla Booja (WC 1998/058) wholly overlaps the lease and there are no other native title parties for the relevant area.

3. The State gave notice of its intention to grant M70/1240 on 29 August 2007, triggering the right to negotiate process.

4. A future act determination application in relation to M70/1240 was made by the native title party on 3 August 2017. On 10 August I appointed myself to constitute the Tribunal for the purposes of conducting the inquiry and making the determination.

5. Section 36(2) of the Act prohibits the Tribunal from making a determination where there has been a failure to negotiate in good faith by the grantee party or the Government party. The parties agree that there has been negotiation in good faith.

6. The native title party and the grantee party also agree that they have reached agreement in relation to the grant of M70/1240. However, it has not been possible for the parties to fully execute an agreement of the kind mentioned under s 31(1)(b) because one of the registered applicants comprising the native title party is deceased.

Section 39 criteria

1. In making a determination, I must have regard to the criteria set out in s 39(1) of the Act. These include the effect of M70/1240 on: the enjoyment by the Gnaala Karla Booja people of their registered native title rights and interests; their way of life, culture and traditions, the development of their social, cultural and economic structures; their freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Gnaala Karla Booja people in accordance with their traditions.

2. I am also required to take into account: the interests, proposals, opinions and wishes of the Gnaala Karla Booja people in relation to the management, use or control of the land and waters affected by M70/1240; the economic or other significance to Australia, the State of Western Australia, the area where the lease is located and the Aboriginal peoples who live in that area; and the public interest in the grant of M70/1240. Lastly, I must take into account any other matter that I consider relevant.

3. If there are any issues relevant to the determination on which the parties agree, then, in making my determination, with the consent of all parties, I must take that agreement into account.  Having regard to such agreement, I need not take into account the matters mentioned in paragraphs [7] and [8] above, to the extent those matters relate to those issues(s 39(4)).

4. In the circumstances of this uncontested application, I invited parties to confer and confirm the issues they had reached agreement on relevant to the determination, including any conditions to be imposed, and to file joint submissions, if appropriate.

   Joint submissions

5. The parties filed joint submissions setting out the following areas of agreement relevant to the grant of M70/1240:

   (a)the Government party has complied with s 31(1)(a) of the Act which requires it to give the native title party the opportunity to make oral or written submissions to it regarding the act;

   (b)the parties have negotiated in good faith in accordance with s 31(1)(b) – see paragraph [5] above;

   (c)the native title party and the grantee party have reached agreement regarding the grant but it has not been possible to fully execute an agreement under s 31 of the Act – see paragraph [6] above;

   (d)the native title party and the grantee party have addressed the effect of M70/1240 regarding each of the matters set out in s 39(1)(a) – (f) of the Act and agree that:

   i)the grant will have no significant adverse impacts on the matters set out in s 39(1)(a);

   ii)the interests, proposals, opinions and wishes of the native title party in relation to management, use and control of the relevant area have been considered and taken into account by the grantee party (s 39(1)(b));

   iii)the grant is of economic significance to Australia, Western Australia, the area in which M70/1240 is located, and the Aboriginal people who live in that area (s 39(1)(c)); and

   iv)the public interest supports the grant (s 39(1)(e)).

6. The native title party and the grantee party consent to me taking into account that they have addressed the matters set out in paragraph [11](d) above to their mutual satisfaction and have reached agreement on those issues. They also consent to me having no further regard to those matters in making my determination.

7. The Government party relies upon the mutual satisfaction and agreement of the native title party and the grantee party to the matters set out in paragraph [11](d) and also consents to me taking that agreement into account, and having no further regard to those matters.

8. Implicit in the parties’ joint submission is that there are no other matters parties wish to draw to my attention as being relevant to the determination.

9. I am also required to take into account the nature and extent of existing non-native title rights and interests and existing uses by persons other than the native title parties. There appears to be a very small overlap (1.24%) with a State Forest Reserve (Parcel ID SF22). However, in light of the agreement of all parties recorded above, I do not consider this has any relevance to the determination the parties seek.

10. In joint submissions each party has agreed to, and supports, a determination under s 38 of the Act that M70/1240 may be granted to the grantee party without conditions.

11. In accordance with that submission, I make the following determination.

Determination

1. The determination of the Tribunal is that the act, being the grant of mining lease M70/1240 to Ransberg Pty Ltd, may be done.

Raelene Webb QC
President
27 October 2017