Kallenia Mines Pty Ltd v Gooniyandi Aboriginal Corporation RNTBC
[2016] NNTTA 7
•01 February 2016
NATIONAL NATIVE TITLE TRIBUNAL
Kallenia Mines Pty Ltd v Gooniyandi Aboriginal Corporation RNTBC and Others [2016] NNTTA 7 (01 February 2016)
Application Nos: WF2015/0014, WF2015/0015, WF2015/0016
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into future act determination applications
Kallenia Mines Pty Ltd (grantee party)
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Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003) (first native title party)
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Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda on behalf of Purnululu (WC1994/011) (second native title party)
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Maggie John, Patrick Mung, Chocolate Thomas, Pearl Gordon, Goody Barrett, Lena Nyadbi, Churchill Cann, Hector Chunda, Paddy McGinty, Bernard Stretch, Norman Thomas, Shirley Purdey, Phyllis Gallagher, Rusty Peters, Rammel Peters, Mabel Peters, Gordon Barney, Topsy Springvale, Mary Thomas and Queenie Malgil on behalf of Malarngowem (WC1999/044) (third native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: Mr JR McNamara, Member
Place: Brisbane
Date: 01 February 2016
Catchwords: Native title – future acts – proposed grant of exploration licences – parties agree to grant – parties unable to formalise s 31(1)(b) agreement – Tribunal to take into account any agreement on issues relevant to determination – the acts may be done
Legislation:Native Title Act 1993 (Cth), ss 30(1), 31(1), 32(7), 35(1), 37, 38, 39(1), 39(4).
Mining Act 1978 (WA)
Cases:Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’)
Representative of the
grantee party Mr William Richmond, Kallenia Mines Pty Ltd
Representative of the
native title parties Ms Justine Toohey, Kimberley Land Council
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR DETERMINATION
This decision concerns three applications made to the National Native Title Tribunal seeking determinations that exploration licences may be granted, where the parties agree to the grant of the licences but have been unable to meet the formal requirements of the Native Title Act 1993 (Cth) (‘the Act’).
In 2007, the State of Western Australia gave notice of its intention to grant exploration licences E80/3540, E80/3697 and E80/3931 (collectively ‘the licences’) to Kallenia Mines Pty Ltd under the Mining Act 1978 (WA). The notices included a statement to the effect the State considers the expedited procedure applies to the grant of these tenements. However subsequently, on 16 December 2008, the State notified the Tribunal that the expedited procedure statement had been withdrawn for each of the licences, as per s 32(7) of the Act. Accordingly the normal negotiation procedure outlined at s 31(1) of the Act applied to these licences.
The approximate location of each of the licences, and the registered native title claims and native title bodies corporate which the licences are subject to (collectively ‘the native title parties’), are outlined in the table below.
Tenement
Location
Native Title Parties
E80/3540
72km north east of Halls Creek
· Purnululu registered native title claim
· Malarngowem registered native title claim
E80/3697
68km north east of Halls Creek
· Purnululu registered native title claim
· Malarngowem registered native title claim
E80/3931
95km south east of Fitzroy Crossing
· Gooniyandi Aboriginal Corporation RNTBC
Exploration licences E80/3540 and E80/3697 are also subject to the registered native title claim of Jaru (WC2012/003). However, this claim was not registered until 15 February 2012, being a date after the closing date specified in the notices, and therefore is not a native title party in these proceedings as per s 30(1) of the Act.
Once an exploration licence is notified under the Act, and the expedited procedure statement is not asserted, the proponent and the State must negotiate in good faith with any registered native title claimants or registered native title bodies corporate within the land or waters affected by the proposal, with a view to obtaining the agreement of each native title party. If after six months the parties are unable to agree, then any of the parties may apply to the Tribunal for a determination.
On 26 July 2015, following a lengthy period of negotiations, Kallenia Mines made future act determination applications in relation to the licences.
On 3 August 2015, I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the applications. I accepted the applications and I note the applications satisfied the requirements under s 35(1) of the legislation as they were made more than six months after the licences were notified and no s 31(1)(b) agreement had been made. A s 31(1)(b) agreement concerns the grant of the tenement and is regarded as being between the ‘negotiation parties’ (i.e. between each grantee party, each native title party and the State: see Aston Coal 2 v Gomeroi People). If a s 31(1)(b) agreement had been made I would be unable to make a determination due to s 37 of the Act.
I initially set directions for a substantive inquiry to be held, however, on 15 December 2015 the Tribunal was advised that the native title parties had reached agreement with Kallenia Mines on the terms of a Heritage Protection Agreement and therefore agreed to the grant of the licences. Due to the logistical difficulties associated with obtaining the signatures, and in the interest of concluding these matters expeditiously, parties agreed to proceed by way of a determination rather than through the execution of a State Deed.
In making a determination, I must have regard to the criteria in s 39(1)(a) of the Act. These include the effect of the exploration licences on: the enjoyment by the native title parties of their registered native title rights and interests; the development of their social, cultural and economic structures; their freedom of access, and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to the native title parties in accordance with their traditions.
I am also required to take into account the other matters in s 39(1), namely: the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the land or waters affected by the mining leases; the economic or other significance of the mining leases to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in the exploration licences; and the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the native title parties. I must also take into account any other matter I consider to be relevant.
If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then in making my determination I must take that agreement into account, and need not take into account the matters in s 39(1) to the extent those matters relate to the issues agreed: see s 39(4) of the Act. To this end, I directed the parties to confer for the purpose of reaching agreement on issues relevant to the determination and to file a statement of agreed facts.
The filed statement of agreed facts, signed by each party, was provided as follows:
1. The Government party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth) (NTA)
2. The First, Second and Third Native Title Party (collectively the Native Title Parties), 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 exploration licences E80/3540, E80/3697 and E80/3931 under the Mining Act 1978 (WA).
3. The Native Title Parties consent to the grant of exploration licences E80/3540, E80/3697 and E80/3931.
4. The following Heritage Protection Agreements (HP Agreements) exist over the tenements:
a.an agreement between the authorised representative of the First Native Title Party and the Grantee Party in respect of E80/3540 and E80/3697 dated 1 February 2011;
b.an agreement between the authorised representative of the Second Native Title Party and the Grantee Party in respect of E80/3540 and E80/3697 dated 1 February 2011;
c.an agreement between the authorised representative of the Third Native Title Party and the Grantee Party in respect of E80/3899, E80/3931 and E80/4384 dated 1 February 2011.
5. The Native Title Parties and Grantee Party have addressed the effect of the exploration licences E80/3540, E80/3697 and E80/3931 regarding each of the matters outlined in section 39(1)(a) of the NTA to their mutual satisfaction in the HP Agreements.
6. The Native Title Parties and Grantee Party both consent to the Tribunal taking into account the fact that they:
a. have addressed the matters outlined in s39(1)(a) of the NTA to their mutual satisfaction in the HP Agreements; and
b. consequently agree that the grant of exploration licences E80/3540, E80/3697 and E80/3931 will have no significant adverse effect on those matters,
in making its determination.
7. On that basis, the Native Title Parties and Grantee Party also consent to the Tribunal having no further regard to the matters outlined in section 39(1)(a) of the NTA, in reliance on section 39(4) of the NTA.
8. The Government Party relies on the statements made by the Native Title Parties and Grantee Party above at [6] and, on that basis, consents to the Tribunal taking those statements into account and having no further regard to the matters in section 39(1) of the NTA.
9. The Native Title Parties, Grantee Party and Government Party have conferred as to the matters outlined in sections 39(1)(b)-(f) of the NTA and each party agrees to make no further submissions on these matters.
10. The Native Title Parties, Grantee Party and Government Party consent to a determination under section 38 of the NTA that the grant of licences E80/3540, E80/3697 and E80/3931 may be done.
It is clear from the material provided that all parties agree to the grant of exploration licences 80/3540, 80/3697 and 80/3931 and there is agreement regarding the factors in s39(1). Taking into account the matters outlined above and the relevant legislation, I make the following determination.
Determination
The determination of the Tribunal is that the acts, namely the grant of exploration licences 80/3540, 80/3697 and 80/3931 to Kallenia Mines Pty Ltd, may be done.
Mr JR McNamara
Member
01 February 2016
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