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 138

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 138 (30 August 2010)

Application No:  VF10/1

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Jabiru Metals Ltd (Applicant/grantee party)

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The State of Victoria (Government party)

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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 JURISDICTION TO CONDUCT AN INQUIRY AND DETERMINE MATTER

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  30 August 2010

Catchwords:  Native title – future act determination application - proposed mining licence – right to negotiate – negotiating parties unable to reach agreement – whether s 29(3) public notice adequate – whether s 29(2)(b)(i) notice to registered native title claimant adequate – valid mining licence application not a pre-requisite to the Tribunal’s jurisdiction – relationship between Native Title Act1993 (Cth) and Racial Discrimination Act1975 (Cth) – whether Government party has negotiated in good faith – Tribunal has jurisdiction/power to conduct an inquiry and make a determination.

Legislation:Native Title Act1993 (Cth), ss 7, 29, 35, 75, 151

Racial Discrimination Act1975 (Cth), s 10

Mineral Resources (Sustainable Development) Act 1990 (Vic)

Cases:Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485

Dann and Others (Amangu People) v Western Australia and Another [2006] NNTTA 126; (2006) 208 FLR 357

Mt Gingee Munjiev Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375

Western Desert Lands Aboriginal Corporation v State of Western Australia and Others [2008] NNTTA 22; (2008) 218 FLR 362

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 DECISION ON JURISDICTIONAL ISSUES

1. In the interests of expedition the following reasons for decision are provided in ‘short form’.  More detailed reasons may be provided if considered necessary as part of the final determination.

2. On 2 June 2010, Jabiru Metals Ltd (the grantee party) made a future act determination application pursuant to ss 35 and 75 of the Native Title Act1993 (Cth) (NTA) for a future act determination in relation to the grant of Mining Licence 5523 (MIN 5523) under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MR(SD) Act). Notice of the future act was given by the State of Victoria (the Government party) pursuant to s 29 of the NTA on 4 November 2009.

3. The Gunai/Kurnai registered native title claimant (the native title party) challenged the Tribunal’s jurisdiction (or power or authority) to conduct an inquiry and make a determination in relation to the application on a number of grounds identified below.  The native title party submitted that the Tribunal should conduct an oral hearing on the basis that the issues are not able to be ‘adequately determined’ without holding a hearing (s 151 NTA).  It says there are some novel issues raised as well as issues relating to the Government party’s policy on negotiation in good faith considered by the Tribunal in Mt Gingee Munjiev Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375 (Mt Gingee Munjie) which would be better tested in this way. The Government party and grantee party opposed the submission. In its terms s 151 refers to a ‘determination’ (which has a specific meaning in the NTA) not a ‘decision’ and is not strictly applicable to the current situation which involves making a decision on preliminary issues. However the principle remains the same. I am satisfied that the issues can be dealt with adequately on the papers and that the requirements of procedural fairness have been satisfied by the exchange of contentions, submissions and documentary evidence including affidavits. There was no request for witnesses to be called or cross-examined.

4. The Tribunal finds that it has the necessary jurisdiction or power to conduct an inquiry and make a determination.  In general, the Tribunal accepts the Government and grantee parties’ contentions and submissions on the matters raised.

Whether notice pursuant to s 29 of the NTA properly given

Section 29(3) notice to the public

1. I find that the public notice given by the Government party pursuant to s 29(3) is valid. It complies with para 6(5) of the Native Title (Notices) Determination (No. S440, 2 September 1998) in providing ‘a clear description of the area that may be affected by the act’. The notice gives the area of the proposed mining licence (4244 hectares), describes the location as 20 kilometres east of Benambra and provides a location reference based on the Victorian Roads Country Directory, Edition 3. The relevant municipality and parishes are referred to. Although the native title party says that there is a more recent edition of this Directory there is nothing misleading about the reference and consulting the more recent edition would still provide the location of the proposed MIN 5523. Importantly, a diagrammatic map is also provided which does not give just a generalised location but shows the area of MIN 5523 and its boundaries and delineates the area to be affected by the future act. In my view this public notice is adequate to provide a putative native title claimant ‘with sufficient material to enable that person or persons to make an informed decision whether to file a native title determination application in response to the notice’ (Dann and Others (Amangu People) v Western Australia and Another [2006] NNTTA 126; (2006) 208 FLR 357 at [37], [65], [82]).

Section 29(2)(b)(i) notice to any registered native title claimant

1. I find that the notice provisions of s 29(2)(b)(i) have been complied with in that proper notice was given by the Government party to the registered native title claimant. By letter dated 2 November 2009 the Department of Primary Industries (DPI) gave notice of MIN 5523 to the Principal Legal Officer, Native Title Services Victoria Ltd (NTSV) who act for the Gunai/Kurnai claimants. The letter included a copy of the public notice given pursuant to s 29(3).

2. The native title party contends that s 29(2)(b)(i) is to be distinguished from s 29(3) because it provides for notice to be given to a registered native title claimant but there is no requirement for it to be done in a determined way as there is with s 29(3). It says that because the public notification provisions in s 29(3) and Minister’s determination made in relation to it pursuant to s 29(6) do not apply to the notice given under s 29(2)(b)(i) the Government party is required for reasons of natural justice to provide more information in a s 29(2)(b)(i) notice than what is required by the public notice. The Tribunal does not accept this contention. Section 29 sets out what notices need to be given and there is no provision for the Minister to determine the way in which a s 29(2)(b)(i) is to be given. There are no statutory requirements other than that the Government party ‘must give notice’ of the act. I accept that the notice must be an adequate one so as to make a registered native title claimant aware of the nature and location of the future act which gives rise to its procedural rights. This purpose is served by provision of the public notice as part of the s 29(2)(b)(i) notice.

Notice under s 29(2)(b)(i) and the Racial Discrimination Act1975 (Cth) (RDA).

1. The native title party also contends that the notice given under s 29(2)(b)(i) is defective because of conflict with the RDA. It says that the content of the notice under paragraph 29(2)(b)(i) is unclear or ambiguous; that paragraph 7(2)(b) of the NTA requires the provisions be considered consistently with the RDA; and s 10 of the RDA entitles a native title holder to the same, or similar, notice as an ‘owner’ of ‘occupier’ under the MR(SD) Act and Mineral Resources (Sustainable Development) Regulations.

2. The interaction of the NTA and RDA and the effect of s 7 of the NTA has been dealt with by the Tribunal in Western Desert Lands Aboriginal Corporation v State of Western Australia and Others [2008] NNTTA 22; (2008) 218 FLR 362 (esp. at [28]-[44]) (WDLAC) which are adopted for the purpose of my decision. 

3. As is clear from the High Court decisions cited in WDLAC, s 7 of the NTA is only intended to clarify that the RDA applies to the performance of functions conferred by or authorised by the NTA and to construe the NTA in the case of ambiguity (s 7(2)). If the right to negotiate provisions of the NTA are followed, the future act will be valid even if it affects native title in a way that conflicts with the RDA.

4. In my view there is no ambiguity in the content of the notice itself.  For the reasons already given I find that the notice was clear and adequate for the purpose stated in the NTA.  Further, there is no ambiguity in the terms of para 29(2)(b)(i) of the NTA which requires resort to the RDA to properly construe it and to remove the ambiguity.  Para 29(2)(b)(i) simply says in unambiguous terms that the Government party must give notice (of the future act) to any registered native title claimant.  There is therefore no basis for using the RDA to resolve an ambiguity.

Validity of notice under the Mineral Resources (Sustainable Development) Act 1990 (Vic)

1. The native title party’s contentions could also be understood as saying that the grantee party has not complied with the MR(SD) Act and Mineral Resources (Sustainable Development) Regulations and RDA because it failed to give notice of MIN 5523 to the Gunai/Kurnai registered native title claimant who should be treated as an ‘owner’ or ‘occupier’ of the land over which MIN 5523 is sought. It says s 10 of the RDA means that the native title party is entitled to the same notice as an ‘owner’ or ‘occupier’ under the state legislation.

2. Again the Tribunal has dealt with similar issues in WDLAC. Any challenge to whether proper procedures under the MR(SD) Act or other State legislation have been followed (eg. notice to an owner or occupier) will need to be made in an appropriate Court. This applies whether the challenge is based on the terms of the MR(SD) Act itself or such terms as supplemented by s 10 of the RDA. These issues do not impact on the Tribunal’s jurisdiction. The Tribunal’s role is confined to the right to negotiate provisions of the NTA which if followed will ensure that a future act is valid despite any effect it has on native title.

Whether Mining Licence Application 5523 is valid

1. The native title party contends that mining licence application MIN 5523 made on 6 September 2009 was not properly made because the full area to be utilised for mining was not included in the proposed mining licence area identified in the application.  A proposal for a Leach Pad and Treatment Site outside the area of the application has subsequently been included in the grantee party’s proposal for mining prepared for the purposes of an environmental assessment under the Environmental Effects Act 1978 (Vic) thus indicating that mining will be undertaken outside the area of the proposed MIN 5523.  Consequently, the native title party says the mining lease application is a ‘piecemeal application’ and falls foul of the principles established in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 (esp. per Stephen J at 504-506).

2. The Pioneer Concrete case dealt with principles applicable to planning.  It is not appropriate to transpose these principles to mining automatically.  The decision is based on the specific statutory provisions of the City of Brisbane Town Planning Act 1964-1976 (Qld) which are clearly distinguishable from those under the MR(SD) Act relating to mining.  The Tribunal is aware from its own experience that mining tenements (especially mining leases or licences) are often applied for before full details of the proposal are known and that mining proposals are often developed sequentially over time depending on the results of continuing exploration.  In the case of MIN 5523 the initial intention (which is not uncommon) is to utilize MIN 5523 for further exploration before making a decision to mine.

3. More fundamentally, the Tribunal is not aware of any authority to say that before the Tribunal has jurisdiction to consider a proposed future act under the right to negotiate provisions (i.e. to mediate or conduct inquiries into expedited procedure objections or a future act determination application) it must be satisfied that there is a valid application under relevant mining legislation including the MR(SD) Act. Any challenge to the validity of an application under that Act should be made in an appropriate Court. Provided proper notice is given under s 29 then the primary requirements of the NTA in respect of jurisdiction are satisfied. Any issues about the details of what is proposed to be done pursuant to the grant of a mining licence may be relevant in deciding whether good faith negotiations have occurred or in determining whether or not the future act may be done but they do not mean there is a lack of jurisdiction.

4. The other problem for the native title party is that the Leach Pad and Treatment Site (if it becomes part of the mining project, which the grantee party says is by no means certain at this stage) will be located on freehold land held by a subsidiary of the grantee party where native title has been extinguished.  No right to negotiate arises as native title cannot be affected and hence the grant of a tenement for this purpose would not on its own be a future act (s 233 NTA).  While the possible construction of the Leach Pad and Treatment Site may have some relevance to a s 38 determination in providing a full context for the mining proposal, no jurisdictional issue is raised by it not being included in the area of proposed MIN 5523.  If application is made for an appropriate mining tenement to permit construction of the Leach Pad and Treatment Site, it will be dealt with under the MR(SD) Act but there will be no separate future act involved.

5. I find that no jurisdictional issues arise in these proceedings in relation to the mining licence application.

Negotiation in good faith

1. The native title party contends that the Government party (but not the grantee party) has not negotiated in good faith as required by the right to negotiate provisions of the NTA (ss 31(1)(b), 36). It says that the Government party has not engaged with the native title party in a way that amounts to negotiation in good faith. It is common ground that, apart from giving the s 29 notice, the Government party only engaged with the other parties by giving the native title party an opportunity to make submissions as required by s 31(1)(a) of the NTA. This was done by letter to the Gunai/Kurnai People, c/- Principal Legal Officer, NTSV dated 10 March 2010 and also advises that ‘DPI will monitor the negotiations and may contact you in the future to verify progress’; and that ‘the Government party is available to be actively involved at the request of either negotiation party’. On 28 April 2010 the grantee party provided a Native Title Negotiation Report to DPI which set out the details of negotiations with the native title party to that point. There is no issue that there were substantive negotiations occurring between the grantee and native title parties in accordance with the Victorian practice.

2. The Government and grantee parties rely on the Tribunal’s decision in Mt Gingee Munjie to say that the Government party acted in accordance with the practice developed in Victoria relating to the obligation to negotiate in good faith.  The Victorian practice involves the native title and grantee parties first negotiating a Project Consent Deed amongst themselves and then involving the Government party to finalise negotiations by way of a s 31 Deed which is a tripartite agreement between the three negotiation parties (Government party, grantee party and native title party).  In passing I observe that a similar practice has been developed in Western Australia and Northern Territory.

3. The findings in Mt Gingee Munjie are relevant to the present case and are adopted.  The native title party has sought to distinguish the facts in Mt Gingee Munjie from the present matter but the differences which exist are not such as to call the Mt Gingee Munjie findings into question.  First, it says the claim group and native title party was split in Mt Gingee Munjie which is not the case here.  While this is acknowledged the Victorian practice is of general application and not confined to circumstances where there is a split in the registered native title claimant and native title party.  Second, it says NTSV does not have a policy of excluding the Government party from s 31 negotiations as was the case with Mirimbiak Aboriginal Nations Corporation, the native title representative body at the time of the Mt Gingee Munjie negotiations. While I accept that NTSV and Mirimbiak are different organisations, NTSV took over Mirimbiak’s functions as the native title representative body under the NTA for Victoria.  Mirimbiak had a stated policy referred to in Mt Gingee Munjie (at [80], [90]) of not wanting the Government party involved in negotiations between the native title and grantee parties and there is no evidence of whether this policy was specifically adopted by NTSV.

4. However in the absence of any evidence about NTSV’s approach to involvement of the Government party in negotiations I am entitled to infer that the Mirimbiak policy of not involving the Government party in negotiations between the grantee party and native title party continued.  Despite being aware of the past policy and decision in Mt Gingee Munjie there is no evidence that NTSV (on assuming the function of a representative body) or the Gunai/Kurnai native title party repudiated the Victorian practice either generally or in the specific circumstances of this case.

5. The native title party was invited by the Government party to make submissions on the doing of the act.  It could at any time have advised the Government party and grantee party that it wanted to follow a different negotiation procedure to that previously agreed as appropriate by key stakeholders in Victoria.  It could have said it no longer followed Mirimbiak’s policy and that it wanted the Government party to be informed of or involved in negotiating the details of an agreement between the grantee and native title party including the commercial aspects. It could have provided this information as a matter of general policy or specifically for these negotiations in its role representing the Gunai/Kurnai.  If it had put specific propositions to the Government party about the process or substance of negotiations and the Government party had not responded to them then an issue about whether the Government was negotiating in good faith would arise.

6. I am satisfied that these negotiations were carried out in accordance with the Victorian practice, that the obligation to negotiate in good faith is conditioned by that practice and that the Mt Gingee Munjie findings are still applicable.

7. I find that the Government party has negotiated in good faith as required by s 31(1)(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
30 August 2010