Lake Hillman Mining Pty Ltd and Another v Reg Yarran (Jnr) and Others on behalf of the Ballardong People
[2019] NNTTA 33
•4 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Lake Hillman Mining Pty Ltd and Another v Reg Yarran (Jnr) and Others on behalf of the Ballardong People [2019] NNTTA 33 (4 June 2019)
Application No:
WF2019/0002
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Lake Hillman Mining Pty Ltd
(grantee party)
- and -
Reg Yarran (Jnr) and Others on behalf of the Ballardong People (WC2000/007)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal:
Ms H Shurven, Member
Place:
Perth
Date:
4 June 2019
Catchwords:
Native title – future act – application for determination in relation to proposed grant of mining lease – uncontested application – parties unable to formalise s 31(1)(b) agreement – s 39(4) agreement to be given effect – act may be done
Legislation:
Native Title Act 1993 (Cth) ss 31, 31(1)(b), 35(1), 38, 39(1), 39(4)
Representatives of the native title party:
Mr Etienne Van Tonder, South West Aboriginal Land and Sea Council
Representative of the grantee party:
Mr Marcus Holmes, Land Equity Legal
Representatives of the Government party:
Ms Faye Mitchell, Department of Mines, Industry Regulation and Safety
Mr Domhnall McCloskey, State Solicitor’s Office
CORRIGENDUM
At the status conference on 29 May 2019, a member of the native title party applicant had been referred to as being currently uncontactable. On 4 June 2019, following publication of this decision, parties sought to amend their Joint Statement to refer to one member of the native title party applicant who is uncontactable in relation to this matter. I accepted that amendment. As such, paragraph [13] of this decision is amended to read as follows:
In the joint statement, submitted by all parties, it was outlined that the native title party and the grantee party have reached agreement but they are unable to carry that to execution it because two of the native title party applicants are deceased, one is incapacitated, one is uncontactable, and one will not sign. Both parties agree to be bound by an agreement reached, notwithstanding an agreement has not been formally executed. Both parties also agree the ‘interests, proposals, opinions and wishes…in relation to the management, use or control’ of the native title party, relative to the proposed mining lease, have been taken into account in an agreement.
Helen Shurven
Member
5 June 2019
REASONS FOR DETERMINATION
[1] This decision concerns an application made to the National Native Title Tribunal seeking a determination that mining lease M70/1370 may be granted. The parties agree to the grant of the lease but have been unable to meet the formal requirements of s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act).
[2] On 27 June 2018, the State of Western Australia gave notice, as per s 29 of the Act, of its intention to grant mining lease M70/1370 to Lake Hillman Mining Pty Ltd (Lake Hillman Mining). The lease is 1.0978 square kilometres in size, is located 50 kilometres west of Bencubbin, and lies entirely within the area covered by the registered native title claim of the Ballardong People (WC2000/007). The proposed grant area is covered by an existing exploration licence, held by Lake Hillman Mining (E70/4432).
[3] The Ballardong People are the only native title party for the purposes of the negotiation procedure set out in s 31 of the Act. Lake Hillman Mining and the State are the other negotiating parties.
Can the Tribunal make a determination?
The future act determination application
[4] Section 31(1)(b) of the Act requires Lake Hillman Mining (as the grantee party), the Ballardong People (as the native title party) and the State to negotiate in good faith with a view to obtaining the agreement of the native title party to the grant of the lease. If, after six months, the parties are unable to agree, any of the parties may apply to the Tribunal for a determination.
[5] On 9 April 2019, Lake Hillman Mining lodged a future act determination application to the Tribunal, in relation to the grant of the lease. The application satisfied the requirements under s 35(1) of the Act as it was made more than six months after the lease was notified, and no s 31(1)(b) agreement has been made. The future act determination application describes that the negotiation parties have not been able to execute a formal agreement as required by s 31(1)(b) of the Act.
[6] I was appointed to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application. The decision which I can make in determining the outcome of this inquiry is either that the grant of the mining lease must not be done, the grant may be done, or the grant may be done subject to conditions to be complied with by any of the parties (as outlined in s 38 of the Act).
The inquiry and further information
[7] I convened a preliminary conference on 3 May 2019 with parties to discuss the future act determination application. The representative for the Ballardong People clarified the reason for the outstanding signatures from members of the Ballardong applicant to the relevant agreement was that two persons are deceased, one person is incapacitated and one will not sign. All parties agreed at the preliminary conference that they sought an uncontested determination from the Tribunal that the act could be done. I note all parties are legally represented.
[8] For a status conference on 29 May 2019, parties were provided with draft directions for the conduct of the inquiry. Following discussion with parties, those directions were finalised. Parties complied with the directions and provided the following material and information for the purposes of this inquiry:
1. A Joint Statement signed by all parties outlining the circumstances of the matter;
2. The certified copy of a medical certificate verifying the incapacity of one applicant;
3. Information confirming the death of two applicants;
4. Information from the State showing tenure, Aboriginal heritage site material, and mapping;
5. A Form 21 Mining Lease Application, Supporting Statement (including a Plan of Operations) and Mineralisation Report (the latter two documents being provided on a confidential basis due to their commercial sensitivity).
[9] The representative for the native title party subsequently also provided to the Tribunal and other parties, at my request, the ‘Extract from Minutes of the Ballardong Working Party and Named Applicants meeting’, which was dated 15 May 2019. This extract provided an outline of the negotiation process for an agreement in this matter and the explanations and advice provided by the native title party legal representative. The extract also confirmed the motion to authorise and support the signing of the mining agreement, the associated heritage agreement, and the state deed was moved, seconded, and carried unanimously by those in attendance.
Issues to take into account in making a determination
[10] In making a decision, I must have regard to the criteria in s 39(1)(a) of the Act. These criteria include the effect of the mining lease on the Ballardong People’s: enjoyment of their registered native title rights and interests; way of life, culture and traditions; development of their social, cultural and economic structures; 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 party in accordance with their traditions.
[11] I am also required to take into account the other matters specified in s 39(1), namely: the interests, proposals, opinions and wishes of the Ballardong People in relation to the management, use or control of the land or waters affected by the mining lease; the economic or other significance of the mining lease to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islander peoples who live there; the public interest in the mining lease; as well as 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 party. I must also take into account any other matter I consider to be relevant.
[12] If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then I must take that into account in making my determination, 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). The directions I issued in this inquiry asked parties to provide a joint statement on issues relevant to this decision.
[13] In the joint statement, submitted by all parties, it was outlined that the native title party and the grantee party have reached agreement but they are unable to carry that to execution it because two of the native title party applicants are deceased, one is incapacitated and one will not sign. Both parties agree to be bound by an agreement reached, notwithstanding an agreement has not been formally executed. Both parties also agree the ‘interests, proposals, opinions and wishes…in relation to the management, use or control’ of the native title party, relative to the proposed mining lease, have been taken into account in an agreement.
[14] The material provided indicates to me that all parties agree to the grant of the lease and there is a common understanding regarding the factors in s 39(1). Taking into account the matters outlined above, and the relevant provisions of the Act, I make the following determination.
Determination
[15] The determination of the Tribunal is that the act, namely the grant of mining lease M70/1370 to Lake Hillman Mining Pty Ltd, may be done.
Helen Shurven
Member
4 June 2019
1
0
0