Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People
[2010] NNTTA 168
•15 October 2010
NATIONAL NATIVE TITLE TRIBUNAL
Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People, [2010] NNTTA 168 (15 October 2010)
Application No: VF10/1
IN THE MATTER of the native title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Jabiru Metals Ltd (Applicant/grantee party)
- and -
The State of Victoria (Government party)
- and -
Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People (VC97/4) (native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Melbourne
Date: 15 October 2010
Catchwords: Native title – future act – application for determination for the grant of mining licence – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38
Mineral Resources (Sustainable Development) Act 1990 (Vic)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361
Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People, NNTT VF10/1, [2010] NNTTA 138 (30 August 2010), Hon C J Sumner
Solicitors for the Mr Marshall McKenna, Allens Arthur Robinson
grantee party: Ms Georgia Denisenko, Just Outcomes
Solicitor for the Mr James Stephens
Government party:Victorian Government Solicitor’s Office
Counsel for the
native title party: Mr David Yarrow, Lonsdale Chambers
Solicitor for the
native title party: Ms Ju-Lin O’Connor, Native Title Services Victoria Ltd
REASONS FOR FUTURE ACT DETERMINATION
Background
On 4 November 2009 the State of Victoria (the Government party) gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of a future act, namely the grant of mining licence application MIN5523 under the Mineral Resources (Sustainable Development) Act 1990 (Vic) to Jabiru Metals Limited (the grantee party).
The s 29 notice states that MIN5523 encompasses 4244 hectares and is located approximately 20 kilometres east of Benambra within the East Gippsland Shire in eastern Victoria.
The native title party with respect to these proceedings is the Gunai/Kurnai People (VC97/4 registered from 4 April 1997). The Gunai/Kurnai People are represented by solicitors from Native Title Services Victoria (NTSV).
On 2 June 2010, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to ss 35 and 75 of the Act for a future act determination under s 38. At a preliminary conference on 22 June 2010 directions were set for the conduct of an inquiry into the application.
The grantee party provided a background to the application for MIN5523 in the affidavit sworn 2 August 2010, by Ms Victoria Twiss, Corporate and Commercial Services Manager. The application for MIN5523 is the result of the grantee party’s exploration activities in the surrounding area which are collectively termed the ‘Stockman Project’.
Jurisdictional issues and negotiation in good faith
On 13 July 2010, in compliance with the Tribunal’s directions the native title party contended on a number of grounds that the Tribunal did not have jurisdiction (or power or authority) to conduct an inquiry and make a determination in relation to the application. On 30 August 2010 the Tribunal found that it had the necessary jurisdiction or power (Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People, NNTT VF10/1, [2010] NNTTA 138 (30 August 2010)) and the inquiry proceeded in accordance with the directions of 22 June 2010.
Inquiry
On 1 September 2010, based on the efforts of the grantee party and native title party to reach agreement, Ms Denisenko for the grantee party requested that in order to accommodate a resolution of the proceedings by consent the timetable set by the directions be extended by one week. With the agreement of all the parties the Tribunal amended the directions as requested.
On 15 September 2010, Ms Denisenko wrote confirming that the grantee and native title parties had reached a without prejudice in-principle agreement on proposed terms of a settlement, and NTSV was in the process of seeking a resolution from their clients regarding those terms. She advised that if the native title party agreement was forthcoming then these parties would seek to present the Tribunal with a proposed consent determination according to an agreed timetable. As a consequence the grantee party requested that the times for compliance with directions be extended further and with the agreement of all the parties the Tribunal amended the directions as requested.
On 22 September 2010, Ms Denisenko confirmed that agreement in principle had been reached between the native title and grantee parties and that it was their intention to propose terms for a consent determination to be made by the Tribunal. The directions were vacated and the submission of contentions and evidence for the purposes of the inquiry was not required.
Proposed determination by consent
On 6 October 2010 the Tribunal received correspondence from Ms Denisenko again confirming that the grantee and native title parties had reached an in-principle agreement regarding the grant of MIN5523 and that the reaching of agreement had the support of the Government party. The grantee party therefore requested that the Tribunal make a consent determination in the matter, based on the following reasons.
After extensive negotiations which commenced in 2009, the negotiation parties have reached an agreement that MIN5523 may be granted, and the terms of that agreement will be documented in an ancillary agreement between the grantee party and the native title party.
Negotiations both in the right to negotiate process and during the arbitration proceedings were conducted through lawyers on both sides.
A draft of the proposed determination, signed by Ms Denisenko, in the following terms was attached to the correspondence of 6 October 2010.
‘The Grantee Party, by written consent of the negotiations parties, requests that the following determination be made in relation to the acts the subject of application VF10/01, namely the proposed grant of mining licence application 5523 under the Mineral Resources (Sustainable Development) Act 1990 (Vic):
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993 (Cth).
2. The Government Party, the Native Title Party and the Grantee Party have complied with the requirements of s.31(1)(b) of the Native Title Act 1993 (Cth).
3. The act, namely the grant of mining licence application 5523 under the Mineral Resources (Sustainable Development) Act 1990 (Vic), may be done.’
On 12 October 2010, the native title and Government parties each wrote to the Tribunal confirming their consent to the proposed determination in the terms set out in the grantee party’s correspondence and draft determination of 6 October 2010.
The Tribunal has the power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. If necessary, the Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361).
The jurisdictional preconditions to a determination raised in paragraphs 1 and 2 of the draft consent determination have been met. The agreement which forms the basis of the request for a consent determination has been arrived at after negotiations between the native title and grantee parties both of whom were legally represented. NTVS as a native title representative body under the Act has a formal role to protect the interests of native title parties and be satisfied that persons they represent understand and consent to a course of action in accordance with the requirements of the Act. In these circumstances I consider it appropriate to make a determination by consent without the necessity of hearing the parties.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Licence MIN5523, to Jabiru Metals Ltd, may be done.
C J Sumner
Deputy President
15 October 2010
0
2
0