Great Southern Gypsum Limited and Another v Alan Jones & Others on behalf of Ballardong People
[2020] NNTTA 65
•28 October 2020
NATIONAL NATIVE TITLE TRIBUNAL
Great Southern Gypsum Limited and Another v Alan Jones & Others on behalf of Ballardong People [2020] NNTTA 65 (28 October 2020)
Application No: | WF2020/0005 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Great Southern Gypsum Limited
(grantee party)
- and –
Alan Jones & Others on behalf of Ballardong People (WC2000/007)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 28 October 2020 |
Catchwords: | Native title – future act – s 35 application for a determination – mining lease application – s 39(4) agreements taken into account – |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 75, 78, 82, 85 Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 38, 39, 141, 143, 151 |
Cases: | Agius v State of South Australia (No 3) [2016] FCA 1416 (‘Agius’) Burragubba v State of Queensland [2016] FCA 984 (‘Burragubba’) Burragubba v State of Queensland [2017] FCAFC 133; (2017) 346 ALR 414 (‘Burragubba Full Court’) Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233 (‘Butchulla’) Kemppi v Adani Mining Pty Ltd (No 3) [2018] FCA 40; (2018) ALR 553 (‘Kemppi No 3’) Lake Hillman Mining Pty Ltd and Another v Reg Yarran (Jnr) and Others on behalf of the Ballardong People [2019] NNTTA 33 (‘Lake Hillman Mining v Ballardong’) Lennon v State of South Australia [2010] FCA 743 (‘Lennon’) McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 340 ALR 419 (‘McGlade’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title party: | Peter Nettleton & David Farrell, South West Aboriginal Land and Sea Council |
| Representative of the grantee party: | Matthew Clohessy, Emerald Tenement Services |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Faye Mitchell, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This decision concerns whether the State of Western Australia (State) may grant mining lease M70/1384 (lease) to Great Southern Gypsum Limited (GSGL).
In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA) the State gave notice that it may grant the lease, specifying the ‘notification day’ of 12 December 2018.
The proposed lease is located near the town of Lake Grace in the south-west of Western Australia, within the area of the native title determination application made by the Ballardong People (WAD6181/1998). The registered native title claimant for the Ballardong People’s native title determination application (Ballardong) is therefore the ‘native title party’ in relation to the area of the lease (s 29(2) NTA).
Following the giving of the s 29 notice, the negotiation parties, being the State, GSGL and Ballardong, were required to negotiate in good faith with a view to obtaining Ballardong’s agreement to the grant of the lease (s 31(1)(b) NTA).
The parties agree that they have negotiated in good faith. However, for reasons which will be further explained, the parties have not executed an agreement under s 31(1)(b) of the NTA. GSGL therefore applied to the Tribunal for a determination of whether the lease may be granted, and if so, any conditions.
The President of the Tribunal directed me to constitute the Tribunal for the purpose of GSGL’s application and, for the reasons outlined below, I have determined that the lease may be granted without conditions.
The Tribunal proceedings
On 22 May 2020 (being at least 6 months after the notification day), GSGL lodged a future act determination application under s 35 of the NTA, for a determination under
s 38 of the NTA. The application was accepted by the Tribunal on 28 May 2020.
All parties attended a preliminary conference before me on 10 June 2020, at which I made directions for the conduct of the inquiry. During the conference, the parties confirmed that the terms of an agreement had been agreed between Ballardong and GSGL, but an agreement between all three negotiation parties could not be executed in compliance with s 31(1)(b) of the NTA. Ballardong also advised that it did not take any issue with the good faith negotiation of the State or GSGL.
On 22 June 2020, in accordance with the directions made, the State provided the following information about the lease:
(a)Tengraph Quick Appraisal detailing key information about the lease and lease area;
(b)copy of the lease application and mineralisation report;
(c)Mining Tenement Summary Report;
(d)topographical map;
(e)tenure spreadsheet detailing the underlying tenure in the lease area;
(f)search of Registered Aboriginal Sites in the lease area from the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS search); and
(g)copy of a letter dated 31 May 2019 from the State to the Tribunal in relation to the application considered in Lake Hillman Mining v Ballardong regarding evidence that two members of the applicant for the Ballardong native title determination application are deceased.
The State subsequently provided details of the proposed endorsements and conditions it intends to impose on the grant of the lease, being the ‘Draft Tenement Endorsement and Conditions Extract’ in Annexure 1 and the ‘Extra Conditions’ in Annexure 2.
The directions of 10 June 2020 also invited any of the parties (whether jointly or separately) to provide a statement in relation to matters relevant to my decision, including the matters set out in s 39 of the NTA.
On 14 July 2020, Ballardong provided a joint submission of the parties signed by their representatives in the following terms:
JOINT SUBMISSION OF THE NATIVE TITLE, GRANTEE AND GOVERNMENT PARTIES
The parties agree on the following matters that are relevant to the making of a determination in this inquiry:
1. The Government party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth) (NTA)
2. The Native Title Party, Grantee Party and Government Party have negotiated in good faith in accordance with section 31(1)(b) of the NTA in relation to the grant of Mining Lease 70/1384 (mining lease) under the Mining Act 1978 (WA).
3. The Native Title Party and Grantee Party have reached an agreement regarding the grant of the mining lease (the Agreement). However, it has not been possible to fully execute an agreement under section 31 of the NTA (i.e., both the Agreement as between the Grantee Party and the Native Title Party and a State Deed between all parties) in respect of the mining lease because two of the claimants are deceased and one has no legal capacity and one has not been able to be contacted. However, the remaining claimants have signed the Agreement.
4. The Native Title Party and the Grantee Party agree to be bound by the Agreement notwithstanding that it has not been signed by all of the Native Title Party.
5. The Native Title Party and Grantee Party have addressed the effect of the mining lease regarding each of the matters set out in each of paragraphs 39(1)(a) to (f) of the NTA to their mutual satisfaction and as further detailed in the agreement.
6. The Native Title Party and the Grantee Party agree that the interests, proposals, opinions and wishes of the Native Title Party in relation to the management, use or control of the relevant land and waters have been taken into account by the Grantee Party and have been addressed in the Agreement.
7. The Native Title Party and the Grantee Party agree that the grant of the mining lease is of economic significance to Australia, the State of Western Australia, the area in which the mining lease is located and the Aboriginal people who live in that area.
8. The Native Title Party and the Grantee Party agree that the public interest supports the grant of the mining lease.
9. The Native Title Party and Grantee Party agree to the National Native Title Tribunal taking into account:
a.the fact that they have addressed the matters outlined in s39(1)(a) to (f) of the NTA to their mutual satisfaction in the Agreement; and
b. their agreement on the matters set out in paragraphs 4-8.
10. The Government Party relies on the statements made by the Native Title Party and Grantee Party at paragraphs 4 to 9, and, on that basis, agrees to the Tribunal taking those statements into account and having no further regard to the matters in section 39(1) of the NTA.
11. The Native Title Party, Grantee Party and Government Party unequivocally agree to the Tribunal taking into account this Joint Submission in making its determination pursuant to section 39(4) of the NTA.
12. The Native Title Party, Grantee Party and Government Party unequivocally agree to a determination by the Tribunal under section 38 of the NTA that the mining lease may be granted to the Grantee Party.
l3. The Native Title Party, Grantee Party and Government Party also unequivocally agree to the Tribunal making its determination of this application on the papers in accordance with section 151(2) of the NTA.
Together with the joint submission, Ballardong provided:
(a)a further copy of the letter dated 31 May 2019 mentioned at [9](g) above; and
(b)a certified copy of a medical certificate regarding the decision making ability of another member of the applicant for the Ballardong native title determination application.
As permitted by s 151(2), I am satisfied that the issues for determination can be adequately determined on the papers.
Authority of the Native Title Party
In accordance with s 29(2) of the NTA, Ballardong as the registered native title claimant for the Ballardong native title determination application is the ‘native title party’ in relation to the area of the lease.
As the native title party, Ballardong is entitled to take part in this inquiry and to submit evidence of its choosing (see s 141(2) NTA and Burragubba Full Court at [61], [155]–[161]). It is also entitled to be represented by a barrister, solicitor or other person
(s 143 NTA).
In this case, Ballardong is legally represented through the South West Aboriginal Land and Sea Council and it has provided the joint submission together with evidence to show that two of the 11 persons whose names are entered on the Register of Native Title Claims are deceased and one is incapacitated. A fourth person is said to be uncontactable, although no particulars have been provided.
Ballardong says in the joint submission that all of the remaining persons who comprise the registered native title claimant have signed an agreement with GSGL and intend to be bound by it. However, it remains the case that no agreement under s 31(1)(b) has been signed by all of the negotiation parties and therefore it falls to me to make a determination under s 38 of the NTA.
I understand the evidence and information provided regarding the death, incapacity and inability to contact members of the registered native title claimant has been provided by way of explanation as to why an agreement under s 31(1)(b) of the NTA has not been signed by all negotiation parties. There is no suggestion or evidence that Ballardong lacks the authority to participate in this proceeding.
The registered native title claimant is required to act jointly and collectively in discharging its role (see Kemppi No 3 at [38] citing Burragubba at [282] and Burragubba Full Court at [141]-[142]). However, the Federal Court has previously accepted that the fact that a member of the applicant (here in its role as registered native title claimant) may be unwilling or unable to act in their representative capacity does not deprive the remaining members of the applicant of their authority to do so (see for example Butchulla at [42]-[45], Lennon at [34] and Agius at [4]-[7]). I note also that, while McGlade concerned an ILUA rather than a s 31(1)(b) agreement, the plurality drew a distinction between the statutory requirements for execution and the proposition supported by cases such as Butchulla that surviving members of an applicant may continue to make effective decisions in certain circumstances (McGlade at [270]).
On the material before me, there is no reason to question the authority of Ballardong’s position as reflected in the joint submission signed on its behalf by its legal representative and I have taken it into account in making my determination.
Issues for determination
Under s 38 of the NTA, I am required to make one of the following determinations:
(a)that the grant of the lease must not be done;
(b)that the grant of the lease may be done; or
(c)that the grant of the lease may be done, subject to conditions to be complied with by any of the parties.
The matters that I must take into account in making a determination are those set out in s 39(1) of the NTA. The NTA does not specify the weight to be afforded to each matter listed in s 39 – that will depend on the evidence (see Western Australia v Thomas at 166).
Under s 39(4), I must take into account any relevant issues upon which the parties agree and, if all parties consent, I need not take into account the matters mentioned in
s 39 to the extent they relate to the agreed issues.The parties’ joint submission states they “unequivocally agree” to me taking into account the joint submission under s 39(4). I have taken account of the joint submission as outlined in my consideration of the s 39 criteria below.
The proposed lease
The lease is a mining lease proposed to be granted under s 75 of the Mining Act 1978 (WA) (Mining Act). Section 78 provides that mining leases are granted for 21 years and may be renewed. The mineral stated in the lease application is gypsum.
Section 82 of the Mining Act contains covenants and conditions of a mining lease and s 85 sets out the rights of the holder. As noted, the State also proposes to grant the lease subject to the endorsements and conditions set out in Annexures 1 and 2.
GSGL currently holds exploration licence E70/3308 over the lease area. The proposed area of the lease is 436.32 hectares. The underlying tenure is primarily unallocated crown land (99.83%), being Lake Grace (North), which is a salt lake. The balance of the area is freehold land (0.17%). The AHIS search shows there are no registered sites under the Aboriginal Heritage Act 1972 (WA) (AHA) in the lease area.
Consideration of section 39 criteria
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
Effect on any area or site of particular significance: s 39(1)(a)(v)
Section 39(1)(a)(i) relates to the effect of the grant of the lease on Ballardong’s enjoyment of its registered native title rights and interests. In this case, the registered native title rights and interests are those described in the entry for the Ballardong native title determination application on the Register of Native Title Claims under the NTA (s 30(3) NTA).
There is no evidence before me regarding the extent to which Ballardong People enjoy those registered native title rights and interests in relation to the lease area nor any specific evidence in relation to the matters listed in ss 39(1)(a)(ii) and (iii).
In its application, GSGL states that any impact will be minimised by it complying with its agreement with Ballardong.
In relation to s 39(1)(a)(iv), it is relevant to note that the Extra Conditions proposed by the State include a condition which provides that any right of the native title party to access or use the land the subject of the 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.
In relation to s 39(1)(a)(v), there is no evidence regarding sites or areas of particular significance to Ballardong in the lease area. I have already remarked on the AHIS search results. I note also that the Extra Conditions provide for a copy of any notice and supporting materials given by GSGL to the Aboriginal Cultural Material Committee under section 18 of the AHA to also be given to Ballardong at the same time.
Ballardong and GSGL state in the joint submission that the effect of the lease on each of these matters has been addressed to their satisfaction in their agreement. The State agrees that I can take that statement into account, which I have done.
Interests, proposals, opinions or wishes of Ballardong in relation to the management, use or control of land or waters affected by the lease: s 39(1)(b)
Ballardong and GSGL agree that Ballardong’s interests, proposals, opinions and wishes as relevant to this criterion have been taken into account by GSGL and addressed in the agreement between those parties.
Ballardong’s clear position from the joint submission is that the lease may be granted.
Economic or other significance of the lease: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the lease to Australia, the State, the area in which the lease is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the lease, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175-176).
The Tribunal has often found the grant of mining leases will be of economic benefit to the State, as well as local or regional areas.
Ballardong and GSGL agree that the grant of the lease is of economic significance to Australia, the State of Western Australia, the area in which the mining lease is located and the Aboriginal people who live in that area.
There is no evidence of the potential benefit from the grant of the lease. However, I would expect the lease will at least be of benefit to the local region, even if the wider State and national benefits are limited.
Public interest in the grant of the lease: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the lease. This expression has been described as importing a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation (see discussion in Minister for Lands v Thalanyji at [266]). There can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations (Western Australia v Thomas at 176).
Ballardong and GSGL agree that the public interest supports the grant of the lease. It is not clear why the State does not also agree to that position. The State again says that it relies on the statement by GSGL and Ballardong, and agrees to me taking it into account.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (Western Australia vThomas at 176). In that context, I am satisfied there is public interest in the grant of the lease in this case.
Any other matter the Tribunal considers relevant: s 39(1)(f)
There are no other matters that I consider relevant to my determination in this matter.
Should the lease be granted and, if so, should conditions be applied?
Having regard to my consideration of the matters in s 39 and the extent of issues agreed between the parties as outlined above, I am satisfied that the lease may be granted.
Annexures 1 and 2 show the conditions and endorsements which the State proposes to impose on the grant of the lease and I have taken those conditions and endorsements into account in making my decision.
No other condition is proposed by any party and I do not consider it is necessary to make my determination subject to any conditions to be complied with by any party.
Determination
I determine that the grant of the Mining Lease M70/1384 may be done.
Ms Nerida Cooley
Member
28 October 2020
ANNEXURE 1
ANNEXURE 2
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