Haoma Mining NL v Nyamal Aboriginal Corporation RNTBC
[2023] NNTTA 7
•24 March 2023
NATIONAL NATIVE TITLE TRIBUNAL
Haoma Mining NL v Nyamal Aboriginal Corporation RNTBC and Others [2023] NNTTA 7 (24 March 2023)
Application No: | WF2022/0007; WF2022/0008; WF2022/0009 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Nyamal Aboriginal Corporation RNTBC (WCD2019/010)
(native title party)
- and -
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008)
(native title party)
- and -
Haoma Mining NL
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 24 March 2023 |
Catchwords: | Native title – future act – s 35 application for determination – exploration licence applications – uncontested application – s 39 criteria considered – effect on native title rights and interests – effect of acts on way of life, culture and traditions – effect of acts on freedom of access – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of native title parties – economic or other significance of acts – public interest in doing of acts – determination that the acts may be done |
Legislation: | Native Title Act 1993 (Cth) ss 31, 38, 39 |
Cases: | Kevin Allen & Others on behalf of Nyamal #1 and Another v Haoma Mining NL & Another [2020] NNTTA 37 (‘Haoma April 2020’) Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining NL & Another [2020] NNTTA 45 (‘Haoma May 2020’) 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 parties: | Grace Manning-Davis, Arma Legal |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Richard Anthonisz, State Solicitor’s Office; Ruth Lavender, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
The application in this matter is what has become known as an ‘uncontested’ future act determination application.
Haoma Mining NL has reached agreement with Nyamal Aboriginal Corporation RNTBC and the registered native title claimant for the Nyamal #1 native title determination application (collectively the native title parties) in relation to the grant of three exploration licences, located south-westerly of Marble Bar in Western Australia.
However, the native title parties and the State of Western Australia do not agree on the terms of an agreement of the kind contemplated in s 31(1)(b) of the Native Title Act 1993 (Cth), which would enable the grant of the licences to proceed.
As a result, Haoma has applied to the Tribunal for a determination that the licences may be granted. Because the native title parties have entered into agreements with Haoma, they do not oppose Haoma’s application. Haoma’s application is also supported by the State.
Having considered the requirements of the Native Title Act, I have determined that each of the exploration licences may be granted.
Issues for determination
Under s 38 of the Native Title Act, I am required to make one of the following determinations in relation to each licence:
(a)that the grant of the licence must not be done;
(b)that the grant of the licence may be done; or
(c)that the grant of the licence 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 Native Title Act. The Native Title Act 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.
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)
Interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters affected by the licences: s 39(1)(b)
Section 39(1)(a)(i) relates to the effect of the grant of the licences on the native title parties’ enjoyment of their registered native title rights and interests.
Two of the licences (E45/5478 and E45/5834) are located wholly within the area of Nyamal #1. For those licences, the registered native title rights and interests are those described in the Nyamal #1 entry on the Register of Native Title Claims. The remaining licence (E45/5231) is located partly within the area of Nyamal #1 and partly within the area held by Nyamal Aboriginal Corporation RNTBC. For the area held by Nyamal Aboriginal Corporation RNTBC, the registered native title rights and interests are those described in the relevant entry on the National Native Title Register.
In relation to s 39(1)(a)(v), I note that in Haoma April 2020 and Haoma May 2020, the Tribunal made findings as to the existence of areas or sites of particular significance within the areas of E45/5231 and E45/5478 respectively. In each of those matters, the Tribunal was satisfied that the grant of the relevant licence was likely to interfere with the areas or sites of particular significance to Nyamal People. Following those decisions, the native title parties have negotiated with Haoma, resulting in their agreements mentioned above.
In this matter, the native title parties have not provided any evidence in relation to the matters listed in ss 39(1)(a) and (b). Rather, the native title parties jointly state that they agree the effect of the grant of the licences on each of the matters in ss 39(1)(a) and (b) has been taken into account by Haoma, and addressed to their satisfaction in their respective agreements with Haoma. Haoma similarly submits that it has taken account of each of those matters and that they are addressed in its agreements with the native title parties.
The native title parties and Haoma say I can take this position into account in my consideration of these matters and the State agrees to that approach.
In summary, there is no evidence provided by any party about the effect of the licences on the matters in these criteria. The fact that the native title parties and Haoma say they have addressed the effect of the licences on these matters to their mutual satisfaction in their agreements and that consequently the native title parties do not oppose a determination that each licence may be granted, weighs in its favour.
Economic or other significance of the licences: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the licences to Australia, the State, the areas in which the licences are located and to the Aboriginal peoples and Torres Strait Islanders who live in those areas. This requires an evaluation of the economic or other significance of the licences, 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 tenements will be of economic benefit to the State, as well as to local or regional areas.
Haoma submits that the grant of the licences is of economic significance to Australia, the State of Western Australia, the area in which the licences are located and the Aboriginal people who live in that area, although no further explanation is given. The State says that it relies on the statement by Haoma, and agrees to me taking it into account. The native title parties do not make any contention in relation to this criterion.
There is no specific evidence regarding any of the potential benefits arising from the grant of the licences. The licence applications disclose the rent payable by Haoma. The statements accompanying Haoma’s licence applications also outline Haoma’s initial work program for years 1 and 2 and the potential for drill programs in years 3 to 5, depending on initial results.
Overall, on the material before me, there is little to be gleaned regarding the economic or other benefit arising from the licences, but I can accept they may be of at least some economic benefit to the local region, even if the broader State and national benefits are limited.
Public interest in the grant of the licences: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the licences. 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).
Haoma submits that the public interest supports the grant of the licences. The State does not expressly agree with that proposition but again says that it relies on the statement by Haoma, and agrees to me taking it into account. The native title parties’ contentions do not address the public interest.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (Western Australia v Thomas at 176). In that context, I am satisfied there is public interest in the grant of the licences 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 licences be granted and, if so, should conditions be applied?
Haoma’s application is unopposed and the native title parties say that their interests are met though their agreements with Haoma. Taking that into account and having regard to my consideration of the matters in s 39, I am satisfied that the licences may be granted.
The State’s material includes the conditions and endorsements it proposes to impose on the grant of each licence, which I have considered 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 exploration licences E45/5231, E45/5478 and E45/5834 may be granted.
Ms Nerida Cooley
Member
24 March 2023
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