Gold Road Resources Limited v Harvey Murray on behalf of Yilka
[2018] NNTTA 52
•3 September 2018
NATIONAL NATIVE TITLE TRIBUNAL
Gold Road Resources Limited v Harvey Murray on behalf of Yilka and Another [2018] NNTTA 52 (3 September 2018)
Application No: | WF2018/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Gold Road Resources Limited
(grantee party)
- and -
Harvey Murray on behalf of Yilka (WC2008/005)
(native title 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: | 3 September 2018 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of exploration licence – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – proposed conditions – determination that the act may be done subject to conditions |
Legislation: | Native Title Act 1993 (Cth), ss 38, 39, 41, 155 Mining Act 1978 (WA) Aboriginal Heritage Act 1972 (WA), ss 18 |
Cases: | Albert Darby Winder on behalf of the Malgana Shark Bay People v Hypermarket Pty Ltd; [2009] NNTTA 173 (‘Malgana v Hypermarket’) Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’) Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’) Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276; [2012] NNTTA 31 (‘Drake Coal v Smallwood’) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 (‘FMG Pilbara v Cheedy’) Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (‘Hogan v Hinch’) Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Koara 2’) Murray on behalf of Yilka v Western Australia [2016] FCA 752 (‘Yilka v Western Australia’) Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 (‘Osland v Secretary, Department of Justice’) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’) Ted Comanoo Evans on behalf of the Koara People v Western Australia; [1997] FCA 741 (‘Koara 1’) Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’) |
| Representative of the grantee party: | Mr Rhys Davies, DLA Piper Australia |
| Representative of the native title party: | Mr Giacomo Boranga, Central Desert Native Title Services Ltd |
| Representatives of the Government party: | Mr Domhnall McCloskey, State Solicitors Office Ms Sharon Robins, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This decision concerns an application made to the National Native Title Tribunal (the Tribunal) by Gold Road Resources Limited (Gold Road Resources) seeking a determination under s 38 of the Native Title Act 1993 (Cth) (the Act) that exploration licence E38/2932 may be granted by the State of Western Australia, subject to a condition.
On 18 June 2014, the State gave notice of its intention to grant the licence to Gold Road Resources under the Mining Act 1978 (WA). The notice included a statement to the effect that the State considered the expedited procedure applies to the grant of the licence. On 16 June 2014, I made a determination that the expedited procedure did not apply to the grant of the licence. As such, parties were required to undertake the normal negotiation procedure (see s 31 and s 32(5) of the Act).
The licence comprises 12.10 square kilometres located within the Laverton Shire, 82 kilometres east of Cosmo Newberry Mission, in the State of Western Australia. At the time of notification, the area affected by the proposed licence was subject to a registered native title claim made on behalf of the Yilka people. The claim was subject to a determination by the Federal Court on 27 September 2017 that native title exists in the entire claim area (Yilka v Western Australia). However, that determination is not yet finalised as it is pending the formation of a Prescribed Body Corporate.
Where parties are not able to reach agreement about an act which attracts the right to negotiate, and at least six months have passed since the act was notified, any party may apply to the Tribunal for a determination to be made about the doing of the act. In this matter, Gold Road Resources made such an application, which was accepted. The Tribunal has the power to determine whether or not the grant can be made, and if so, whether the grant can only be made subject to conditions to be complied with by one or more of the parties. The Tribunal cannot make a determination if one of the parties satisfies the Tribunal that the grantee or the State have not negotiated in good faith.
I was appointed to constitute the Tribunal for the purposes of conducting an inquiry into the application. No party has alleged that the negotiations were not conducted in good faith. As such, this determination is made having regard to the matters set out in s 39 of the Act. In making my determination, I must have regard to and weigh a range of criteria, including the effect of the proposed licence on the rights and interests of native title holders, its economic or other significance, and the public interest in the grant of the proposed licence.
Gold Road Resources seek a determination that the act may be done subject to the following condition:
The Grantee Party and the Native Title Party must comply with the provisions of the undated and unexecuted form of deed entitled 'Mineral Exploration and Land Access Deed of Agreement E38/2932’
Gold Road Resources reached in principle agreement with Yilka regarding the terms of the agreement. As a result of the intervening determination (Yilka v Western Australia), Yilka have, as at the date of this determination, been unable to execute the agreement. Neither the State nor Yilka have contested the seeking of a determination in the terms requested by Gold Road Resources.
For the reasons below, I have decided the grant of the proposed licence may be done, subject to the condition.
Preliminary evidentiary matters
I made directions requiring all parties to produce material for the conduct of the inquiry, so I may determine whether the act may be done, may not be done, or may be done subject to conditions (as per s 38(1) of the Act).
On 15 August 2018, the representative for Yilka wrote to the Tribunal and all parties, advising the native title party would not be submitting a statement of contentions in this matter.
On 22 August 2018, the representative for Gold Road Resources wrote to the Tribunal and all parties, in response to Yilka’s advice regarding not submitting a statement of contentions, as follows:
As a consequence of the Native Title Party not having submitted any materials in this matter, neither the Grantee Party nor the Government Party see a need to, nor propose to, file any materials in reply (as contemplated by direction 3, due today). Further, neither the Grantee Party nor the Government Party require the inspection of any documents or see the need for, or utility of, an agreed statement of issues and facts and a listing or any other hearing (as contemplated by the subsequent directions).
Accordingly, the Grantee Party and the Government Party propose that the Tribunal proceed to determine this matter on the papers presently filed with the Tribunal and dispense with the remaining directions (i.e. directions 4 through 7). The Native Title Party has confirmed that it does not object to this course of action.
Upon receiving confirmation from the State and Yilka that they did not have any further comment on Gold Road Resources proposal, I vacated the remaining directions and proceeded to determine the matters on the papers filed.
The agreement
On 31 July 2018, Gold Road Resources provided a statement of contentions, attaching affidavits of Mr Justin Osbourne (Company Director), Mr Kyle Prentice (Project Geologist) and Ms Sharon Goddard (General Manager). Together with these documents, Gold Road Resources submitted the draft agreement, 'Mineral Exploration and Land Access Deed of Agreement E38/2932’ (‘the agreement’), with a request for non-disclosure directions under s 155 of the Act. The content of the agreement is commercially sensitive to Gold Road Resources and Yilka, and is intended to be kept confidential, except in certain circumstances. As such, save for some general references to the content of the agreement to assist in understanding the reasons for my decision, I do not go into any detail about the content of the agreement.
On 2 August 2018, I issued non-disclosure directions under s 155 of the Act restricting access to the agreement to:
·officers and legal representatives of the native title, grantee and Government parties and their respective employees and consultants; and
·the Tribunal and staff assisting the Tribunal.
As stated at [6] above, Gold Road Resources seek a determination that the act may be done subject to a condition requiring compliance by the grantee party and Yilka with the terms and conditions of the agreement. Gold Road Resources state the agreement provides for ‘payments to the Native Title Party…in respect of land disturbance caused as a result of works being undertaken by the Explorer in the Agreement Area’. They say these disturbance payments are to be made in consideration of the effect of the act on native title, and:
·do not contemplate either a bank guarantee or payment into trust; and
·are, or may be, capable of characterisation as compensation, including as a result of their intended treatment as ‘native title benefits’ within the meaning of the Income Tax Assessment Act 1997 (Cth).
Gold Road Resources note the Tribunal’s powers in relation to compensation are limited to the imposition of conditions requiring a bank guarantee under s 41(3) of the Act or money paid into trust under s 41(4). They state, and it is recognised that, the Tribunal is prohibited from imposing a condition described in s 38(2) of the Act, that is, one which has the effect of a native title party being entitled to certain payments based on profits made, income derived or things produced. The Tribunal is also prevented from determining compensation under Part 2 Division 5 of the Act.
The State makes the point that any conditions imposed by the Tribunal must comply with the Act. For example, they also emphasise that any conditions must not require the determining of any compensation payment, or payments in relation to the amount of profits made, income derived or things produced by Gold Road Resources regarding E38/2932. Conditions requiring other payments are permissible.
I have read through the proposed agreement, and I cannot see any clauses which offend the relevant sections of the Act. The proposed agreement has also been drafted so that any payment obligations shall only take effect on the assignment of the native title party rights and obligations to the registered native title body corporate (therefore acting as a condition precedent to the payment obligations).
Koara 1 and Koara 2 established that the Tribunal’s ability to impose conditions is a broad one (subject to the statutory limitations outlined above). Section 41(1) of the Act provides that any conditions of a determination have effect as if the conditions were terms of a contract among the negotiation parties. Malgana v Hypermarket provides an overview of Tribunal and Federal Court decisions in relation to imposing conditions on a future act determination.
I note the proposed agreement has not been signed or executed by either Gold Road Resources or Yilka, nor has a State Deed been signed or executed between parties. As such, there is no agreement of the kind referred to in s 31(1)(b) which would preclude me from making a future act determination in this matter.
I turn to the analysis of the s 39 criteria in my consideration of whether the act should be done, subject to the proposed condition.
Section 39 criteria
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Section 39(1)(a)(i) directs me to consider the effect of the act on Yilka’s enjoyment of their registered native title rights and interests. This requires an evaluation of whether the grant of the proposed licence will constrain or otherwise affect the exercise of Yilka’s registered rights and interests. This is a matter of fact to be determined on the evidence in each case (Western Australia v Thomas at [167]).
Gold Road Resources outline their proposed exploration activities which shows the explorer will be spending limited time on the land with limited personnel. They contend that because of this, the preclusion of Yilka to exercise their rights and interests will be limited.
The State intend to impose on the proposed licence the draft endorsements and conditions outlined in Annexure A and B. Additionally, the State will impose four extra conditions (set out in Annexure C) identified during negotiations between parties. Gold Road Resources contend Yilka’s native title rights and interests will be protected at all other times by the first of these extra conditions, which precludes the restriction of the exercise of native title rights and interests at any other time.
Gold Road Resources contend any adverse effects of preclusion will be partly mitigated by the provisions of the agreement requiring the grantee party to:
· give prior notice of any entry on to the land;
·limit access and activities and areas that have been cleared for that purpose in accordance with the agreement; and
·acknowledge Yilka’s rights to move freely through, reside and conduct traditional activities on the land, except where doing so may be dangerous, unsafe or will interfere with Gold Road Resources exploration activities.
In light of this, and considering Yilka’s agreement for this matter to be determined on the materials filed by Gold Road Resources and the State, I do not find the grant of the licence will have any relevant effect on the Yilka’s enjoyment of their native title rights and interests.
Effect on way of life, culture and traditions - s 39(1)(a)(ii)
Section 39(1)(a)(ii) requires me to have regard to whether the proposed licence will have a tangible effect on Yilka’s contemporary way of life, culture and traditions (see FMG Pilbara v Cheedy at [62]).
Gold Road Resources rely on their contentions for s 39(1)(a)(i) for this criteria. To the extent that adverse effects on the way of life, culture and traditions of Yilka may arise in another way, Gold Road Resources contend this will be mitigated by various provisions of the agreement, including the control of liquor, deleterious substances and guns and instruction in Aboriginal culture (to promote understanding of Aboriginal culture among the grantee’s employees and contractors).
The State contend any effects on way of life, culture and traditions of Yilka will be regulated and minimised by the State and Federal regulatory regimes.
I am satisfied that the licence will not effect the way of life, culture and traditions of Yilka under s 39(1)(a)(ii).
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
Section 39(1)(a)(iii) requires me to consider the effect of the proposed licence on the development of Yilka’s social, cultural and economic structures. The effects may be positive or negative, having regard to adverse effects, as well as effects that are likely to promote the development of those structures (see Western Australia v Thomas at [170]).
Gold Road Resources state any adverse effects on the development of social, cultural and economic structures of Yilka that may arise are mitigated in the manner set out in their material for s 39(1)(a)(i). In the event that adverse effects arise in any other way, they will be further alleviated by provisions of the agreement, including: payment of costs and expenses in relation to certain matters and provision of employment and training opportunities, which are intended to enhance the economic well-being of members of Yilka.
Based on the information before me, I consider that any negative effects on the development of Yilka’s social, cultural and economic structures are likely to be minimal.
Effect on freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance: s 39(1)(a)(iv)
Gold Road Resources relies on their contentions for s 39(1)(a)(i), and the provisions of the agreement that mitigate adverse effects on Yilka’s freedom of access to land, and freedom to carry on rites, ceremonies and other activities of cultural significance.
The State contend, given the size of the licence in relation to the determination area, any effect on Yilka’s freedom of access to the licence area is unlikely to be significant when weighed against the economic significance or public interest in the doing of the act.
In light of the evidence before me, I do not find the proposed licence will have any relevant effect on Yilka’s freedom to carry on rites, ceremonies and other activities of cultural significance.
Effect on areas or sites of particular significance: s 39(1)(a)(v)
Section 39(1)(a)(v) requires me to have regard to the likely effect of the proposed licence on any areas or sites on the land and waters concerned that are of particular significance to Yilka in accordance with their traditions. An area or site is ‘of particular significance’ if it is of special or more than ordinary significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources at [34]-[35]).
The State’s register of Aboriginal sites shows no registered sites or other heritage places in the licence area. It is well established that a site or area may be of particular significance without being recorded on the Register (see Little v Lake Moore Gypsum at [67]). However, the State note Yilka have not provided any evidence of the existence of any areas or sites of particular significance on the licence area. The State contend should there be a prospect of interference, the Aboriginal Heritage Act 1972 (WA) (the AHA) regime will apply.
Gold Road Resources agrees with and adopts the State’s contentions in relation to the protective regime established in the AHA. Gold Road Resources state they are aware of their obligations, and the policies and procedures in place to ensure that its employees and contractors are also aware of their obligations under the AHA.
Gold Road Resources understand there are two known Aboriginal sites coextensive with identified exclusion areas which are protected by the grantee party’s policies and procedures. Ms Goddard states in her affidavit (at [22(d)]) ‘the Exclusion Areas are there to protect important heritage places and that Gold Road must avoid those areas when conducting its exploration related activities’. Further they contend the provisions of the agreement requiring Gold Road Resources not to exercise its rights under the licence in those areas without written consent of Yilka.
Gold Road Resources contend any potential adverse impacts on other areas or sites of significance will be mitigated by the clearance processes contemplated by the agreement.
I am satisfied the proposed exploration is unlikely to interfere with any area or site of particular significance to Yilka.
Interests, proposals, opinions or wishes of Yilka in relation to the management, use or control of land or waters: s 39(1)(b)
Section 39(1)(b) directs me to consider the effect of the act on Yilka’s interests, proposals, opinions or wishes in relation to the management, use or control of land or waters to which there are native title rights and interests.
Gold Road Resources contend the terms and conditions of the agreement reflect the interests, proposals, opinions or wishes of Yilka in relation to the management, use or control of the land, and those matters are taken into account by the imposition of the proposed condition.
In the absence of any evidence to the contrary, I am satisfied that the act will have little or no adverse effect upon the interests, proposals, opinions or wishes of Yilka in relation to the management, use or control of the land.
Economic and other significance of the act: s 39(1)(c)
Section 39(1)(c) directs me to consider the economic or other significance of the act to Australia, the State, the area on which the land or waters concerned are located and the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the propose licence, rather than a generalised inquiry into the importance of exploration or mining to the local or national economy.
The State contend if the act is done, it will enable the continued development of a significant national industry. It outlines that benefits will include licence and rental fees (for the State) and income (for the nation). The State assert there is likely to be a benefit to the local community in the vicinity of the licence area by reason of the continuation and further development of a local industry.
Gold Road Resources say the exploration activities will generate employment and contracting opportunities, including for members of the native title party (for example, through heritage surveys in accordance with the agreement).
I am satisfied the exploration program proposed is likely to produce economic benefits associated with exploration expenditure and rental payments, but the impact of these are likely to be marginal. It is possible the grant of the licence will lead to a general increase in employment opportunities, although this is dependent on whether a resource is identified. In this context, I consider the grant may be of marginal significance to the Yilka people who reside in the area.
Public interest in the doing of the act: s 39(1)(e)
Section 39(1)(e) directs me to consider the public interest in the grant of the proposed licence. The term ‘public interest’ derives its content from the subject matter, scope and purpose of the legislation in which it appears (see Hogan v Hinch at [31]). The question of what is ‘in the public interest’ may require consideration of competing arguments about, or features or facets of, the public interest (see Osland v Secretary, Department of Justice at [137]).
The State contend the public interest is served by the continuation and/or development of a significant national industry due to economic benefits that will accrue at a local, State and national level. Gold Road Resources adopt the State’s contentions, and assert their exploration activities will serve the public interest in the identification and delineation of the State’s mineral resources.
I am satisfied the grant of the licence will contribute to the development of the mining industry, and there is a public interest in the grant of the licence.
Any other matter the Tribunal considers relevant: s 39(1)(f)
Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters that the Tribunal considers relevant, provided they fall within the scope, subject matter and purpose of the Native Title Act (see Re Koara People).
The State note the effect the act will have on the natural environment may be a relevant factor. It contends any effects on the local environment due to the development of the proposed licence will be regulated and minimised by the regulatory regimes about environment protection heritage.
Having considered the elements of s 39, I also note that a) no party objects to the Tribunal making a determination in this matter that the act may be done subject to a condition, and b) nor does any party object to the imposition of the specific condition proposed by the grantee party. I do not intend to impose the endorsements and conditions outlined by the State (at Annexure A and B to this decision), or the extra four conditions also proposed by the State (at Annexure C to this decision), as the State have indicated they will impose these on grant of the licence. However, I do intend to impose the condition as outlined at [6] above, as per s 38(1) of the Act.
Determination
The determination of the Tribunal is that the act, being the grant of exploration licence E38/2932 to Gold Road Resources Limited, may be done subject to the following condition:
The Grantee Party and the Native Title Party must comply with the provisions of the undated and unexecuted form of deed entitled 'Mineral Exploration and Land Access Deed of Agreement E38/2932’.
Helen Shurven
Member
3 September 2018
ANNEXURE A: DRAFT ENDORSEMENTS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY
The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee'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 Licensee's 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 and Environmental Regulation (DWER) 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 Department of Water and Environmental Regulation (DWER) 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 Department of Water and Environmental Regulation (DWER).
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 the Department of Water and Environmental Regulation (DWER), unless an exemption otherwise applies.
ANNEXURE B: DRAFT CONDITIONS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY
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.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, DMIRS. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMIRS.
Unless the written approval of the Environmental Officer, DMIRS 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 Licensee 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 Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
• the grant of the Licence; or
• registration of a transfer introducing a new Licensee;advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The rights of ingress to and egress from Miscellaneous Licences 38/210 & 38/229 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
ANNEXURE C: EXTRA CONDITIONS THE STATE IS OFFERING TO PLACE ON THE TENEMENT
Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
Upon assignment of the mining lease the assignee shall be bound by the conditions.
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