Image Resources NL v Malcolm Ryder & Ors on behalf of Yued
[2021] NNTTA 11
•29 March 2021
NATIONAL NATIVE TITLE TRIBUNAL
Image Resources NL v Malcolm Ryder & Ors on behalf of Yued [2021] NNTTA 11 (29 March 2021)
Application No: | WF2021/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Malcolm Ryder & Others on behalf of Yued (WC1997/071)
(native title party)
- and -
Image Resources NL
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 29 March 2021 |
Catchwords: | Native title – future act – s 35 application for determination – mining lease application – s 39(4) agreements taken into account – |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 78, 82, 85 Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 38, 39, 151 |
Cases: | Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233 (‘Butchulla’) Great Southern Gypsum Limited and Another v Alan Jones & Others on behalf of Ballardong People [2020] NNTTA 65 (‘Great Southern Gypsum’) 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] NTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title party: | David Farrell, South West Aboriginal Land and Sea Council |
| Representative of the grantee party: | Anna Liscia, IRDI Legal |
| 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 the grant of mining lease M70/1305 (lease) to Image Resources NL (Image).
In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA) the State of Western Australia (State) gave notice that the Minister for Mines and Petroleum may grant the lease, specifying the ‘notification day’ of 2 May 2012.
The proposed lease is located approximately 18 kilometres east of Cervantes in the south-west of Western Australia, wholly within the area of the native title determination application made by the Yued People (WAD6192/1998). The registered native title claimant for the Yued People’s native title determination application (Yued) 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, Image and Yued, were required to negotiate in good faith with a view to obtaining Yued’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. Image 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 purposes of Image’s application and, for the reasons outlined below, I have determined that the lease may be granted without conditions.
The Tribunal proceedings
On 9 February 2021, Image 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 12 February 2021.
In its application, Image states that it reached agreement with Yued in November 2020 but not all members of Yued were able to sign the agreement due to the incapacity of one of those persons. A copy of a doctor’s certificate with respect to the incapacity of the individual was also attached to Image’s application.
On 19 February 2021, the Tribunal wrote to parties about the application, providing draft directions for the conduct of the inquiry.
On 24 February 2021, prior to the directions being made:
(a)the State provided the following information:
i)Tengraph Quick Appraisal detailing key information about the lease and lease area;
ii)copy of the lease application and mineralisation report;
iii)Mining Tenement Summary Report;
iv)topographical map;
v)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
vi)details of the proposed endorsements and conditions to be imposed on the grant of the lease, being the ‘Draft Tenement Endorsement and Conditions Extract’ in Annexure 1; and
(b)Yued provided a joint submission of the parties signed by their representatives.
During the preliminary conference on 25 February 2021, the parties confirmed that the terms of an agreement have been agreed between Yued and Image, but the parties have not entered into an agreement under s 31(1)(b) of the NTA.
Yued’s legal representative, South West Aboriginal Land and Sea Council, advised that it is satisfied it holds instructions from Yued in relation to this proceeding, notwithstanding the incapacity of one individual. I note the Federal Court has previously accepted that the fact a member of the applicant (here in its role as a 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] and discussion in Great Southern Gypsum at [15]-[21]).
Consistent with the joint submission, Yued also confirmed that it does not take any issue with the good faith negotiation of the State or Image.
At the preliminary conference the parties advised that they did not intend to provide any information additional to that circulated on 24 February 2021. Accordingly, it was not necessary for me to make directions in the form proposed, or otherwise.
The parties further advised that, although native title in relation to the whole of the lease area is to be surrendered under the Yued Indigenous Land Use Agreement on 13 April 2021, they are seeking a determination by the Tribunal before that date, if possible. This is apparently due to the terms of the agreement between Yued and Image.
The parties agree to the determination being made ‘on the papers’ as permitted by
s 151(2) of the NTA. Having reviewed the material, I am satisfied that the issues for determination can be adequately determined without a hearing.
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’ say that they ‘unequivocally agree’ to me taking the joint submission into account under s 39(4). I have taken account of the 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 the Mining Act 1978 (WA) (Mining Act). Section 78 of the Mining Act provides that mining leases are granted for 21 years and may be renewed.
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 Annexure 1. According to the mineralisation report provided by the State, Image intends to mine mineral sands.
The proposed area of the lease is 947.11 hectares. Image currently holds exploration licences E70/2636, E70/2898 and prospecting licence P70/1516 over the lease area. According to the Quick Appraisal, the underlying land tenure is unallocated crown land (74.22%) and freehold land (25.78%). There is also a petroleum exploration permit EP 432 R1 held by Energy Resources Limited over 30.64% of the lease area. The AHIS search shows there are no registered sites under the Aboriginal Heritage Act 1972 (WA) in the lease area.
Consideration of section 39 criteria
Effect on 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 Yued’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 of Yued’s 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 Yued 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), (iii) and (iv).
In its application, Image states that any impact will be minimised by it abiding by its agreement with Yued.
In relation to s 39(1)(a)(v), there is no evidence regarding sites or areas of particular significance to Yued in the lease area. I have already commented on the AHIS search results. I also note that proposed condition 4 set out in Annexure 1 contains requirements for entry into an Aboriginal Heritage Agreement.
Yued and Image 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 Yued in relation to the management, use or control of the land or waters affected by the lease: s 39(1)(b)
Yued and Image agree that Yued’s interests, proposals, opinions and wishes as relevant to the criterion have been taken into account by Image and addressed in the agreement between those parties.
Yued’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 and regional areas.
In this case there is no specific evidence of the expected economic benefit arising from the grant of the lease, although the information in the mineralisation report (while dated) suggests a project of a scale likely to generate such benefit, at least at a State and local level.
I have also taken account of the statement by Yued and Image that they 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.
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 judgement 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]).
Yued and Image agree that the public interest supports the grant of the lease. The State again says that it relies on the statement by Image and Yued, 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 v Thomas 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.
Annexure 1 sets out 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 Mining Lease M70/1305 may be done.
Ms Nerida Cooley
Member
29 March 2021
ANNEXURE 1
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