Doyles Creek Mining Pty Ltd v Plains Clan of the Wonnarua People and Wonnarua Traditional Custodians
[2014] NNTTA 18
•19 February 2014
NATIONAL NATIVE TITLE TRIBUNAL
Doyles Creek Mining Pty Ltd v Plains Clan of the Wonnarua People and Wonnarua Traditional Custodians and Another [2014] NNTTA 18 (19 February 2014)
Application No: NF2013/0001
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Doyles Creek Mining Pty Ltd (grantee party)
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Scott McCain Franks and Robert John Lester on behalf of the Plains Clan of the Wonnarua People (first native title party)
Desmond Hickey, Margaret Ann Matthews, Warren Stanley George Taggart, Gordon Griffiths, George Edward Sampson, Luke Matthew Hickey, Warren Frank Schillings, Allen Stuart Paget and Timothy Peter Smith on behalf of the Wonnarua Traditional Custodians (second native title party)
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The State of New South Wales (Government party)
DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION
Tribunal: President Raelene Webb QC
Place: Sydney
Date of decision: 13 February 2014
Catchwords: Native title – future act – proposed grant of assessment lease – application for determination for the grant of assessment lease – application for assessment lease voided by operation of legislation – future act determination application dismissed.
Legislation:Native Title Act 1993 (Cth), ss 29, 30, 30A, 33, 35, 36, 38, 148(a)
Mining Act 1992 (NSW)
Mining Amendment (ICAC Operations Jasper & Acacia) Act 2014 (NSW)
Cases:Mineralogy Pty Ltd v National Native Title Tribunal & Ors [1997] FCA 1404; 150 ALR 467 (‘Mineralogy v NNTT’)
Greg Francis & Others on behalf of the Djabera Djabera Native Title Claimants/Emerald Gas Pty Ltd [2010] NNTTA 19 (‘Francis v Emerald Gas’)
Pearl Joyce Connelly (Mitakoodi & Mayi People); Sonny Condren & Ors (Kalkadoon People #4)/Queensland/Metex Resources Ltd; Reefway Pty Ltd [2007] NNTTA 35 (‘Connelly v Metex Resources’)
Representatives of the Unrepresented
first native title party:
Representatives of the Mr Bill Redmond, Redmond & Redmond
second native title party:
Representative of the Ms Jennifer Anderson, Special Counsel, Sparke Helmore Lawyers
grantee party:
Representatives of the Ms Laura Henschke, NSW Crown Solicitor’s Office
Government party:
REASONS FOR DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION
On 13 February 2014 I dismissed future act determination application NF2013/0001 and said I would publish my reasons later. These are those reasons.
Introduction
On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant to Doyles Creek Mining Pty Ltd (‘the grantee party’) an assessment lease to an area of approximately 112 hectares situated about 30 kilometres west of Singleton in New South Wales (‘the proposed assessment lease’). The proposed grant was to be made pursuant to s 41 of the Mining Act 1992 (NSW) (‘Mining Act’) consequent upon the grantee party having made an assessment lease application for that area, pursuant to s 33 of that Act. The assessment lease application was given the designation ‘ALA 49’. If granted the proposed assessment lease would authorise the prospecting for coal for a term of five years.
In response to the s 29 notice, a native title determination application was filed in the Federal Court by Scott McCain Franks and Robert John Lester on behalf of the Plains Clan of the Wonnarua People on 2 August 2012. That application, NSD1093/2012 (NC2012/004), covers only the proposed assessment lease and was filed within three months after the notification date, as required by s 30(1)(a)(i) of the Act.
On 15 August 2012, Desmond Hickey, Margaret Ann Matthew, Warren Stanley George Taggart, Gordon Griffiths, George Edward Sampson, Luke Matthew Hickey, Warren Frank Schillings, Allen Stuart Paget and Timothy Peter Smith on behalf of the Wonnarua Traditional Custodians filed a native title determination application in the Federal Court also in response to the s 29 notice for the proposed assessment lease. That application, NSD1169/2012 (NC2012/005), covers only the proposed assessment lease and was filed within three months after the notification date, as required by s 30(1)(a)(i) of the Act.
Both applications were considered by a delegate of the Native Title Registrar, accepted for registration and entered on the Register of Native Title Claims. Each application was registered within a four month period after the notification date and consequently both of the registered native title claimants are native title parties within the meaning of s 30(1) of the Act, with status as a negotiation party under the right to negotiate provisions (s 30A).
On 2 July 2013, being a date more than six months after the s 29 notice was given, the grantee party applied to the Tribunal pursuant to s 35 of the Act for a determination under s 38 of the Act as the negotiation parties had not been able to reach agreement as to the doing of the future act, whether or not subject to conditions.
Background
ALA 49 was made over land covered by exploration licence 7270 (‘EL 7270’), which had been granted under the Mining Act to the grantee party for coal exploration. At the date of the s 29 notice, EL 7270 was the subject of an investigation by the Independent Commission against Corruption (‘ICAC’) upon a referral made by the New South Wales Parliament on 23 November 2011. The issues before ICAC included, inter alia, investigating and reporting with respect to the circumstances surrounding the application for and allocation to the grantee party of EL 7270, and making recommendations as to any action by the New South Wales Government with respect to licences or leases under the Mining Act 1992 (NSW) over the Doyles Creek area.
The proposed assessment lease was within the Doyles Creek area. Further, by s 33 of the Mining Act, an application for an assessment lease may only be made by the holder, in this case the grantee party, of an exploration licence or mining lease over that land. Therefore the proposed assessment lease which provided the basis for the s 35 application was linked by EL 7270 to the corruption inquiry being undertaken by the ICAC.
On 26 July 2013, the Government party wrote to the Tribunal drawing its attention to the link between the matter the subject of the Tribunal’s inquiry and the ICAC inquiry, and making application to adjourn the future act determination inquiry pending the conclusion of the ICAC investigation. This course was opposed by the grantee party.
At a preliminary hearing held on 30 July 2013, the State informed the Tribunal that, in light of the ICAC’s investigation, there was a possibility that the proposed assessment lease may not be granted if, for example, the ICAC concluded that the grant of EL 7270 was improper. After taking into consideration all of the submissions made, and having regard to the six month period specified in s 36(3) of the Act, I declined the application to adjourn the inquiry. I note that as an alternative to adjourning the inquiry it was open to the Government party to withdraw its s 29 notice in circumstances where there was no clear current ‘intention’ to do the future act, and to await the findings of the ICAC.
Consequently, directions were made for the provision of contentions and supporting material on the issue of good faith negotiations and also directions for the provision of material on the substantive issues.
On 30 August 2013, the ICAC published its report on its investigation into the circumstances surrounding the application for and allocation to Doyles Creek Mining Pty Ltd of Exploration Licence No 7270 (ICAC Report, Operation Jasper). Relevantly the ICAC concluded (at ICAC Report, Operation Jasper, page 8):
The Commission finds that Mr McDonald [ie the Minister who granted EL 7270] engaged in corrupt conduct by acting contrary to his duty as a minister of the Crown in granting [the grantee party] consent to apply for the EL in respect of land at Doyles Creek and by granting the EL to [the grantee party], both grants being substantially for the purpose of benefiting Mr Maitland. The Commission finds that, but for that purpose, Mr McDonald would not have made those grants.
The ICAC Report, Operation Jasper stated (at pp15-16) that ICAC would provide a further report in relation to any recommended action by the New South Wales Government with respect to licences and leases under the Mining Act over the area; this included ALA 49.
Upon the request of the first native title party, the directions were varied on 6 September 2013 to allow time for the Government party to consider the implications of the ICAC Report, Operation Jasper. The Government party was directed to advise the Tribunal and other parties, on or before 4 October 2013, whether or not the s 29 notice indicating its intention to grant the proposed assessment lease would be withdrawn. The dates for provision of contentions and supporting material were varied accordingly.
On 3 October 2013, the Government party advised that no decision had been made in relation to ALA 49, and a further application for an adjournment was made. This was opposed by the grantee party, and the adjournment application was heard on 23 October 2013. Having considered the views of all parties, and the objects of the Act, including that a determination be made as soon as practicable, I dismissed the application to adjourn the inquiry. In my view, being undecided about whether or not the proposed grant would be made, the most appropriate course for the Government party was to withdraw its s 29 notice.
The ICAC released a further report on 18 December 2013, entitled Operations Jasper and Acacia – Addressing Outstanding Questions. Relevantly the report recommended that the New South Wales Government consider enacting legislation to expunge the tenements granted to the grantee party. The report also recommended there should be an accompanying power to compensate any innocent person affected by the expunging, including, if appropriate, any refusal to grant relevant pending applications.
On 31 January 2014 the NSW Government passed the Mining Amendment (ICAC Operations Jasper & Acacia) Act 2014 (NSW) (‘the Amending Act’). In short, the legislation provides for the cancelation of EL 7270 to the grantee party, and makes void the application for the proposed assessment lease (see further paragraphs [20] to [24] below).
On 4 February 2014 the Government party wrote to the Tribunal asking for the future act determination application to be dismissed. The Government party provided written submissions to the Tribunal on 12 February 2014. A hearing was convened on 13 February 2014 and oral submissions were heard from the parties. No party opposed the dismissal application.
Power of Tribunal to dismiss an application
By s 148(a) of the Act the Tribunal may dismiss the future act determination application, at any stage of an inquiry, if it is satisfied that it is not entitled to deal with that application. There is no doubt that the Tribunal has power, and indeed a duty, to consider and deal with the Government party’s application for dismissal of the future act determination application upon the question of its jurisdiction being raised: see Mineralogy v NNTT at 473.
The Amending Act inserts Schedule 6A into the Mining Act with effect from 31 January 2014. Relevantly clause 4(1)(a) of Schedule 6A operates to cancel EL 7270 as at the ‘cancellation date’ (clause 4(2)). The ‘cancellation date’ is defined in clause 2 to mean the date of assent to the Amending Act. The effect of clause 4 is that EL 7270 was cancelled as at 31 January 2014. As noted at [7] above, ALA 49 was made over land covered by EL 7270.
Relevantly clause 5(1) of Schedule 6A provides that any ‘associated application’ made under the Mining Act and not finally disposed of before 31 January 2014, is void and of no effect from that date. Accordingly, such an ‘associated application’ is not to be dealt with further under the Mining Act: clause 5(2), Schedule 6A.
The expression ‘associated application’ is defined at clause (5)(3)(a) to mean, inter alia, an application under the Mining Act for the grant of an ‘authorisation’ made in connection with a ‘relevant licence’.
EL 7270 falls within the expression ‘relevant licence’, defined in clause 2 to mean ‘an exploration licence referred to in clause 4(1)(a), (b) or (c)’. The term ‘authorisation’ is defined in the Mining Act to mean, inter alia, an ‘authority’, which is further defined to mean ‘an exploration licence, an assessment lease or a mining lease’ (emphasis added).
ALA 49 is an application for an assessment lease, and is an ‘associated application’ for the purposes of clause 5, Schedule 6A. By the operation of clause 5(1), ALA 49 is void and of no effect as from 31 January 2014.
It follows from the above that, in this matter, there is no ‘act’ which is proposed to be carried out. It is axiomatic that the future act determination procedure under Part 2, Division 3 of the Act is predicated upon there being an ‘act’ proposed to be carried out. Where there is no ‘act’ in respect of which the Tribunal can make a determination under s 38, the future act determination application should be dismissed: see, for example, Francis v Emerald Gas at [7]. That order can be made, regardless of whether the Government party withdraws its s 29 notice: Connelly v Metex Resources at [7].
I note that it would have been legally possible for the Tribunal to dismiss the future act determination application once it was put on notice that there was no longer a proposed future act (which activated the process), and hence no basis upon which an inquiry could proceed. However, the approach of formally hearing submissions regarding the dismissal of the application was adopted, given the unusual background to this matter. In my view it was also the preferable approach in this matter as it ensured that all parties were aware of the basis upon which the inquiry would not be proceeding and were in a position to make any submissions they considered appropriate. There may be circumstances where convenience favours the approach of dismissing a future act application under s 148(a) without hearing submissions from parties, but this was not the case in this instance: see also Connelly v Metex Resources at [7].
Decision
Future act determination application NF2013/0001 is dismissed pursuant to s 148(a) of the Act.
Raelene Webb QC
President
19 February 2014
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