Empire Resources Limited and Another v Raymond William Ashwin (dec) and Others on behalf of Wutha

[2018] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Empire Resources Limited and Another v Raymond William Ashwin (dec) and Others on behalf of Wutha [2018] NNTTA 38 (6 July 2018)

Application No: WF2017/0019

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

Raymond William Ashwin (dec) and Others on behalf of Wutha (WC1999/010)

(native title party)

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Empire Resources Limited

(grantee party)

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State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Mr JR McNamara
Place:	Brisbane
Date:	6 July 2018

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
Legislation:		Native Title Act 1993 (Cth) ss 31, 31(1)(a), 31(1)(b), 36(2), 37(a), 38, 39(1), 39(4)
Representative of the native title party:	Mr Ron Harrington-Smith

Representative of the grantee party: Mr Tim Kavenagh, Kavenagh Legal

Representatives 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 is a determination under s 38 of the Native Title Act 1993 (Cth)[1] that the act may be done. The act is the State of Western Australia’s grant of mining lease M57/636 to Empire Resources Limited. I make the determination because there is no s 31(1)(b) agreement by the native title party to the doing of the act. Had there been such an agreement, the Tribunal would be barred from making a determination (s 37(a)).

   [1] Unless specified otherwise, all legislative references are to the Native Title Act 1993 (Cth) (‘the Act’).

2. M57/636 (‘the lease’) comprises 797.59 hectares and is located on Atley pastoral lease N050586, approximately 75 kilometres southwest of Sandstone.  The lease is wholly within the area of Wutha People’s native title claim (WC1999/010) and so Wutha is the native title party in this matter (ss 29(2)(b)(i)).

Background

1. On 27 July 2016, the State gave notice of its intention to grant the lease, triggering the normal negotiation procedure (ss 29, 31). The negotiation parties are Empire, the State and Wutha (s 30A). They attempted to negotiate an agreement as required by s 31(1)(b), but they were unsuccessful.

2. On 16 November 2017, Empire lodged an application under s 35 and President Raelene Webb QC appointed me to conduct the inquiry and make a determination. On 21 December 2017, I convened a preliminary conference and set directions for the inquiry. I amended some of the directions on 1 March 2018.

3. Section 36(2) prohibits the Tribunal from making a determination if any party satisfies the Tribunal that the grantee party or the Government party failed to negotiate in good faith. I was required to conduct a good faith inquiry because Wutha contended the State and Empire failed to negotiate in good faith. On 24 April 2017, I determined both parties negotiated in good faith with Wutha and I had the power to make this determination (Empire v Wutha).

4. Section 142 imposes an obligation on the Tribunal to ‘ensure that every party is given a reasonable opportunity to present his or her case’.  Following Empire v Wutha, the parties lodged submissions in accordance with the directions. On 14 and 29 May 2018, I held listing hearings to discuss the conduct of the inquiry and to allow further written and oral submissions. At the 29 May 2018 listing hearing, I advised the parties that, having considered all the submissions and ss 109 and 36(3), I intended to proceed to determine the matter based on the material already lodged – s 151(2).

1. On 22 June 2018, Empire advised the Tribunal they had reached agreement with Wutha about the grant of the lease. However, it was not possible for the negotiation parties to fully execute a s 31(1)(b) agreement because one of the persons comprising Wutha’s registered applicant is deceased and their name has not been removed as a registered applicant. On behalf of all the parties, Empire requested I make an uncontested determination, taking into account the agreement between Empire and Wutha.

2. On 29 June 2018, I held a listing hearing to discuss Empire’s request. Wutha confirmed they had reached agreement with Empire and it had been signed by all living persons comprising the Wutha registered applicant. I set directions requiring the parties to submit a joint statement outlining any relevant issues on which they agree by 6 July 2018. On 5 July 2018, the parties lodged their joint statement.

Section 39 criteria

1. In making a determination, I must take into account the criteria set out in s 39(1). These include the effect of the lease on: Wutha’s enjoyment 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 them in accordance with their traditions. I am also required to take into account: Wutha’s interests, proposals, opinions and wishes in relation to the management, use or control of the land and waters affected by the lease; the economic or other significance to Australia, the State, the area where the lease is located and the Aboriginal peoples who live in that area; the public interest in the grant of the lease; and any other matter that I consider relevant.

2. Before making a determination, I must ascertain if there are any issues relevant to the determination on which the parties agree. If there are, and all the parties consent, then I must take that agreement into account. If I do so, then I do not need to take into account the matters mentioned in s 39(1) to the extent the matters relate to those agreed issues (s 39(4)).

Joint statement

1. The parties’ joint statement sets out the following areas of agreement relevant to the grant of the lease:

   (a)The lease comprises 797.59 hectares located within Sandstone Shire, east of Youanmi in the State of Western Australia. The lease is a conversion of four prospecting licences under s 49 of the Mining Act 1978 (WA). The land the subject of the lease is prospective for gold and copper and although the grantee party has no immediate plans to mine that land, mining of the land in due course is realistic.

   (b)The Government party has complied with s 31(1)(a).

   (c)The parties have negotiated in good faith in accordance with s 31(1)(b).

   (d)The native title party and the grantee party have reached agreement regarding the grant of the lease, but it has not been possible to fully execute an agreement under s 31 because one of the registered applicants comprising the native title party is deceased and has not been removed as a registered applicant.

   (e)The native title party and the grantee party have addressed the effect of the lease 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 Wutha People 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, the State of Western Australia, the area in which the lease is located, and the Aboriginal people who live in that area (s 39(1)(c)); and

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

2. Wutha and Empire consent to me taking into account that they have addressed the matters set out in paragraph [11](e) 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. They rely upon the agreement reached between them for their agreement to the matters set out in paragraph [11](e).

3. The State relies upon Wutha and Empire’s mutual satisfaction and agreement to the matters set out in paragraph [11](e). They also consent to me taking that agreement into account and having no further regard to those matters.

4. The parties agree there are no other matters they wish to draw to my attention as being relevant to the determination.

5. 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 native title parties (s 39(2)). The lease overlaps Atley pastoral lease N050586 and Empire’s four underlying prospecting licences (State submission of 10 April 2018). However, in light of the above agreement, I do not consider these have any relevance to the determination the parties seek.

6. In the joint statement each party has agreed to, and supports, a determination under s 38 that M57/636 may be granted to Empire without conditions. 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 M57/636 to Empire Resources Limited, may be done.

J R McNamara
Member
6 July 2018