Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd
[2008] NNTTA 67
•29 May 2008
NATIONAL NATIVE TITLE TRIBUNAL
Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd, [2008] NNTTA 67 (29 May 2008)
Application No: VF08/1
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
Dja Dja Wurrung People (VC99/9 & VC00/1) (Applicant/native title party)
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The State of Victoria (Government party)
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Highlake Resources Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 29 May 2008
Catchwords: Native title – future act – application for determination for the grant of exploration licences – provision of s 29 notice – negotiation in good faith – Tribunal jurisdiction – native title parties consent to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 36, 38
Mineral Resources (Sustainable Development) Act 1990 (Vic)
Cases:Roy Dickson on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory (2001) 166 FLR 29
Wilma Freddie/Western Australia/Stephen Grant Povey [2001] NNTTA 162 (19 December 2001)
Mineralogy v National Native Title Tribunal (1997) 150 ALR
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Portman Iron Limited/Alan Jones and Ors (Ballardong People) and Carlene Sceghi and Ors (Central West Goldfields People)/Western Australia [2002] NNTTA 134)
Hearing date: 12 May 2008
Representative of the
native title parties: Ms Helen Grutzner, Native Title Services Victoria
Representative of the
Government party: Ms Mary Scalzo, Victorian Government Solicitor’s Office
Representative of the
grantee party: Ms Georgia Denisenko, Just Outcomes (Aust) Pty Ltd
REASONS FOR FUTURE ACT DETERMINATION
On 17 November 2004 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence application EL4831 (together with EL4904, EL4905, EL4953, EL4954 referred to as ‘the proposed licences’) under the Mineral Resources (Sustainable Development) Act 1990 (Vic) to Highlake Resources Pty Ltd (‘the grantee party’).
On 19 July 2006 the Government party gave notice under s 29 of the Act of future acts, namely the grant of exploration licence applications EL4904, EL4905, EL4953 and EL4954 (together with EL4831 referred to as ‘the proposed licences’) under the Mineral Resources (Sustainable Development) Act 1990 (Vic) to the grantee party.
The location details of the five exploration licence applications are as follows:
| Tenement | Location description | Local Government Area(s) | Size |
| EL4831 | Top right corner approximately 12 km north west of Newstead | Central Goldfields; Hepburn; Mount Alexander | 199km2 |
| EL4904 | Over Eddington, Havelock and Dunolly | Central Goldfields; Loddon; Mount Alexander | 345km2 |
| EL4905 | Over Rheola, Kingower, Glenalbyn and Kurraca | Loddon | 292km2 |
| EL4953 | Over Sandon, Kooroocheang, Yandoit and Sheperds Flat | Hepburn; Mount Alexander | 162km2 |
| EL4954 | Over Newstead | Mount Alexander | 34km2 |
The five exploration licence applications are overlapped by the following native title determination applications:
| Tenement | Application number(s) | Application name(s) | Registration status | % of tenement within application area |
| EL4831 | VC00/1 | Dja Dja Wurrung People | Registered since 15/08/00 | 100.00 |
| EL4904 | VC00/1 | Dja Dja Wurrung People | Registered since 15/08/00 | 100.00 |
| EL4905 | VC99/9 VC00/1 | Dja Dja Wurrung People Dja Dja Wurrung People | Registered since 17/09/99 Registered since 15/08/00 | 0.49 99.51 |
| EL4953 | VC00/1 | Dja Dja Wurrung People | Registered since 15/08/00 | 100.00 |
| EL4954 | VC00/1 | Dja Dja Wurrung People | Registered since 15/08/00 | 100.00 |
The native title party with respect to these proceedings is Dja Dja Wurrung People and Ors (VC99/9, registered from 17 September 1999 & VC00/1, registered from 15 August 2000).
On 26 February 2008, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’).
Preliminary matters
On 7 April 2008 a pre-inquiry directions hearing was held in relation to the matters. At that hearing the native title party sought to challenge the jurisdiction of the Tribunal by reason of the alleged failure of the Government party to notify the representative body or the registered native title party pursuant to s 29(2)(b) of the Act. The native title party submitted further that should that challenge to jurisdiction not succeed that they would allege the failure of the grantee party to negotiate in good faith with the native title party pursuant to s 36(2) of the Act. Accordingly, comprehensive directions were made to address the provision of affidavit materials and submissions relating to both the question of notice and the question of negotiation in good faith. In addition, other orders were made which would bring the matter to readiness for determination should the Tribunal make a decision to the effect that it had jurisdiction to deal with the matter notwithstanding the two challenges to its jurisdiction. Subsequent to the making of the directions on 7 April 2008, they were varied on 21 and 23 April 2008 to facilitate the provision of responsive affidavits from various parties.
Section 29 notices
The Tribunal received written submissions from each of the parties in relation to the question of compliance with s 29(2)(b) of the Act. The Tribunal received the following:
·affidavit from the native title party, affidavit of Helen Mary Grutzner dated 14 April 2008 (solicitor of the native title party, Native Title Services Victoria (‘NTSV’));
·affidavit from the grantee party, affidavit of Georgia Denisenko dated 21 April 2008 (solicitor for the grantee party); and
·affidavits from the Government party, affidavit of Marie Halligan dated 10 April 2008 (Tenements Officer, Department of Primary Resources), affidavit of Maria Scalzo dated 23 April 2008 (Managing Principal Solicitor, Victorian Government Solicitor) and affidavit of Kim Ricketts dated 24 April 2008 (Registration Officer, Department of Primary Industries).
The native title party had been granted leave to file additional affidavit material and submissions in response to the materials provided by the Government and grantee parties by 2 May 2008, however these materials were not filed for reasons set out below.
On 1 May 2008 the Tribunal was advised by the native title party and the grantee party that, notwithstanding the dispute in relation to the question of provision of notice by the Government party, they had reached an ancillary agreement that would facilitate the grant of the application by the grantee party. I indicated to the parties that once the question of jurisdiction of the Tribunal had been raised, it must be addressed. Indeed, if the Tribunal were to find that notice had not been given as alleged, it would not have jurisdiction to make any determination pursuant to the current application.
Before we progress to deal with the question of jurisdiction in relation to the question of compliance of s 29(2)(b), it is important to note that unlike earlier cases (see Roy Dickson on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory (2001) 166 FLR 29) in this matter, the issue in question was not the adequacy of the notice provided by the Government party but the fact of its existence.
Section 29(2)(b) relevantly states:
‘The Government party must give notice to:
…
(b)…
(i)any registered native title claimant (also a native title party); and
Note:Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii)any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and’
In this matter the native title party in their submissions and affidavit material sought to have the Tribunal infer that it was more likely than not that the Government party had failed, essentially for reasons of bureaucratic inefficiency, to dispatch the notice to the relevant parties at the relevant time. Their argument essentially depended on the fact that they had no record of receiving such materials. They also relied on the fact that, upon becoming aware that the applications had been made, after receiving inquiries from the grantee party’s solicitor concerning their preparedness to negotiate, they made an inquiry to the Department of Primary Resources as to the whereabouts of the notices and allegedly received unsatisfactory and incomplete answers. On the other hand, the affidavit material of the State and the grantee parties established that there were records of the dispatch and receipt of the notices by, amongst others, the Tribunal. The inference they sought to draw was that the most likely explanation for the inability of the native title representative body to locate the notices was that they had been misplaced internally once received. In any event, prior to the making of any determination on the question of jurisdiction, the Tribunal received an email dated 6 May 2008 from Ms Grutzner advising the Senior Case Manager concerned that the ‘NTSV is instructed to withdraw; (1) its submission that the National Native Title Tribunal has no jurisdiction to hear Highlake’s application under section 35 of the Native Title Act 1993(Cth) (“NTA”) as the proposed future acts were not notified in accordance with s29(2)(b)(i) of the NTA’.
In my view, once the question of jurisdiction of the Tribunal has been raised by a party in an application pursuant to s 35 of the Act, it is incumbent upon the Tribunal to satisfy itself that it does in fact possess the necessary jurisdiction to proceed with the determination (see Wilma Freddie/Western Australia/Stephen Grant Povey [2001] NNTTA 162 (19 December 2001)). The question of how the jurisdiction of the Tribunal should be dealt with in matters such as these was referred to by Carr J in Mineralogy v National Native Title Tribunal (1997) 150 ALR, where His Honour followed the dictum of Barton J (at 428) in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 ‘where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance, just as it may become the duty of the superior court. On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and in many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support’.
In this matter, the allegation that the Government party failed to give notice has been withdrawn and all parties wish the Tribunal to proceed to make a consent determination in accordance with the agreement they have reached. As I have indicated, it is my view that if I were to find that the allegation that notice had not been given had been sustained, the Tribunal would be deprived of jurisdiction to make a determination even in these circumstances of consent. The provision of notice pursuant to s 29 of the Act is a condition precedent to the Tribunal’s jurisdiction to hear and determine an application made under s 35 of the Act.
Bearing in mind the withdrawal of the native title party’s assertion that it was their belief that the native title party had not received notification, it is not my intention to deal exhaustively with the material contained in the various affidavits provided by the parties. It is important to remember however that the obligation of the Government party is to give notice in an appropriate form not to ensure that notice has been received. The native title party has asserted in paragraph 30 of the affidavit sworn by Helen Grutzner on the 14 April 2008, that in her opinion the evidence before her convinces her ‘that the NTSV never received section 29 notices for the Four ELA’s, despite having made a number of requests for them’. She states in paragraph 35 that ‘the above facts show that NTSV did not receive section 29 notices for the Four ELA’s’. Based on my consideration of the submissions and materials received to date, and in particular the following material matters:
·The evidence provided by the Government party of its procedures and processes for notifying future act matters;
·The evidence provided by the Government party of the steps taken to adhere to those procedures and processes in relation to these exploration licence applications;
·The fact that notices of the future acts were received by the grantee party as required by s 29(2)(c) and (d) of the Act; and
·The potential for incoming correspondence to the registered native title claimants and Representative Aboriginal/Torres Strait Islander body to be misplaced or lost either before or after it is received.
I find that the most likely explanation for the lack of a record of the receipt of the notice required to be provided by the Government party to the native title party and the native title representative body pursuant to s 29(2)(b) was that it was somehow inadvertently misplaced within the native title representative body subsequent to its receipt from the Government party.
Good faith
Consequently I hold that the Government party did give notice to the native title party and native title representative body pursuant to s 29(2)(b) of the Act and therefore the Tribunal does have jurisdiction to deal with the s 35 application brought by the grantee party in this matter.
At the preliminary conference held on 7 April 2008 the representative for the native title parties indicated that their clients may submit that the grantee party had failed to negotiate in good faith as required by s 31(1)(b) of the Act but that further instructions on the issue were needed.
On 24 April 2008 the representative of the native title parties wrote to the Tribunal and the other parties confirming that the native title parties submit that the grantee party did not negotiate in good faith, with a statement of contentions and supporting material to be provided at a later date in line with my directions to the parties of 7 April 2008.
On 6 May 2008 the representative of the native title parties wrote to the Tribunal and the other parties withdrawing the submission that the grantee party did not negotiate in good faith.
By this date the negotiating parties had advised the Tribunal that, notwithstanding the lodgement of the future act determination application on 26 February, the parties had continued negotiating and had reached an agreement-in-principle that would involve the native title parties consenting to the grant of the tenement applications subject to terms and conditions set out in an ancillary agreement to be executed between the grantee and native title parties.
I accept the withdrawal of the contention by the native title parties and note the existence of the negotiated agreement as evidence for why the native title parties withdrew their contention.
I am therefore satisfied that there are no other jurisdictional impediments to my making a determination in this matter.
Inquiry
The Tribunal has the power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. NTSV is the recognised representative body under the Act for the native title party. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (see Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The Tribunal has previously accepted the difficulties in obtaining signatures of the named applicants to a State Deed as a legitimate basis for seeking a consent determination (see, for example, Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 and Portman Iron Limited/Alan Jones and Ors (Ballardong People) and Carlene Sceghi and Ors (Central West Goldfields People)/Western Australia [2002] NNTTA 134) and I adopt the relevant findings made in those determinations.
On 8 May 2008, I received a letter from Ms Grutzner, the solicitor for the native title party, indicating that they had reached agreement with the grantee party in relation to doing of the acts. Ms Grutzner indicated that she had instructions from the native title party in accordance with their authorised decision making processes to consent to grant the exploration license applications without conditions on the basis of the agreement entered into with the grantee party. The reason that a consent determination was sought was that for logistical reasons they were unable to obtain the signature of one of the person who forms part of the native title application. On 7 May 2008, the Tribunal had received a letter from the grantee party indicating that an agreement had been reached seeking a determination of the matter by consent.
The Tribunal was further provided with a minute of consent orders signed by Mr Paul Anthony Simmons, solicitor of NTSV, on behalf of the native title parties, Ms Maria Scalzo, Managing Principal Solicitor of VGS, representing the Government party and Ms Georgia Denisenko, Director of Just Outcomes Pty Ltd, representing the grantee party, in the following terms:
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
2. The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993 (Cth).
3. The acts, namely the grant of exploration licence applications 4831, 4904, 4905, 4953 and 4954 under the Mineral Resources (Sustainable Development) Act 1990 (Vic) may be done.’
At the hearing, upon inquiry from the Tribunal, Ms Grutzner on behalf of the native title party, confirmed that they had instructions to seek a consent determination on the matter.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licences E4831, E4904, E4905, E4953 and E4954, to Highlake Resources Pty Ltd, may be done.
Daniel O’Dea
Member
29 May 2008
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