Lorraine Belotti & Ors on behalf of Gnarla Karla Booja v Waste Stream Management Pty Ltd
[2018] NNTTA 37
•21 June 2018
NATIONAL NATIVE TITLE TRIBUNAL
Lorraine Belotti & Ors on behalf of Gnarla Karla Booja v Waste Stream Management Pty Ltd [2018] NNTTA 37 (21 June 2018)
Application No: | WF2018/0002 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Lorraine Belotti & Ors on behalf of Gnaala Karla Booja (WC1998/058)
(native title party)
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Waste Stream Management Pty Ltd
(grantee party)
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State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Mr J R McNamara |
Place: | Brisbane |
Date: | 21 June 2018 |
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)(a), 31(1)(b), 36(2), 37(a), 38, 39(1), 39(4) |
| Representatives of the native title party: | Mr Peter Nettleton, South West Aboriginal Land & Sea Council |
| Representative of the grantee party: | Ms April French, Austwide Legal Pty Ltd |
| Representatives(s) of the Government party: | Mr Jeff O’Halloran and Mr Michael McIlwaine, State Solicitors Office Ms Faye Mitchell, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This determination that the State of Western Australia may grant mining lease M70/1337 (‘the lease’) to Waste Stream Management Pty Ltd (‘Waste Stream’) is made in the absence of an agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). The agreement referred to in s 31(1)(b) is the agreement of the native title party to the doing of the proposed act, with or without conditions. Had there been an agreement of that kind, the Tribunal would be barred from making a determination by s 37(a) of the Act.
Mining lease M70/1337 is 0.0517 square kilometres in size and is located approximately 31 kilometres south of Perth. The lease is located wholly within the native title claim of the Gnaala Karla Booja (WC1998/058) and there are no other native title parties for the relevant area.
The State gave notice of its intention to grant the lease on 18 October 2017, triggering the right to negotiate process.
A future act determination application in relation to the lease was made by Gnaala Karla Booja on 23 April 2018. On 26 April 2018, the then Acting President Helen Shurven appointed me to constitute the Tribunal for the purposes of conducting the inquiry and making the determination.
Section 36(2) of the Act prohibits the Tribunal from making a determination where there has been a failure to negotiate in good faith by the grantee party or the Government party. The parties agree that there has been negotiation in good faith.
Gnaala Karla Booja and the Waste Stream also agree that they have reached agreement in relation to the grant of the lease. However, it has not been possible for the parties to fully execute an agreement of the kind mentioned under s 31(1)(b) because two of the registered applicants comprising the native title party are deceased and have not been removed as registered applicants.
Section 39 criteria
In making a determination, I must have regard to the criteria set out in s 39(1) of the Act. These include the effect of the leases on: the enjoyment by the Gnaala Karla Booja people of their registered native title rights and interests; their way of life, culture and traditions, the development of their social, cultural and economic structures; their freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Gnaala Karla Booja people in accordance with their traditions.
I am also required to take into account: the interests, proposals, opinions and wishes of the Gnaala Karla Booja people in relation to the management, use or control of the land and waters affected by the lease; the economic or other significance to Australia, the State of Western Australia, the area where the lease is located and the Aboriginal peoples who live in that area; and the public interest in the grant of the lease. Lastly, I must take into account any other matter that I consider relevant.
If there are any issues relevant to the determination on which the parties agree, then, in making my determination, with the consent of all parties, I must take that agreement into account. Having regard to such agreement, I need not take into account the matters mentioned in paragraphs [7] and [8] above, to the extent those matters relate to those issues (s 39(4)).
In the circumstances of this uncontested application, I invited parties to confer and confirm the issues relevant to the determination on which they agree, including any conditions to be imposed, and to file joint submissions, if appropriate.
Joint submissions
The parties filed joint submissions setting out the following areas of agreement relevant to the grant of the lease:
(a)the Government party has complied with s 31(1)(a) of the Act which requires it to give the native title party the opportunity to make oral or written submissions to it regarding the act;
(b)the parties have negotiated in good faith in accordance with s 31(1)(b) – see paragraph [5] above;
(c)Gnaala Karla Booja and Waste Stream have reached agreement regarding the grant but it has not been possible to fully execute an agreement under s 31 of the Act – see paragraph [6] above;
(d)Gnaala Karla Booja and Waste Stream have addressed the effect of the lease regarding each of the matters set out in s 39(1)(a) – (f) of the Act and agree that:
i)the grant will have no significant adverse impacts on the matters set out in s 39(1)(a);
ii)the interests, proposals, opinions and wishes of Gnaala Karla Booja in relation to management, use and control of the relevant area have been considered and taken into account by Waste Stream (s 39(1)(b));
iii)the grant is of economic significance to Australia, the State of Western Australia, the area in which the lease is located, and the Aboriginal people who live in that area (s 39(1)(c)); and
iv)the public interest supports the grant of the lease (s 39(1)(e)).
Gnaala Karla Booja and the Waste Stream consent to me taking into account that they have addressed the matters set out in paragraph [11](d) above to their mutual satisfaction and have reached agreement on those issues. They also consent to me having no further regard to those matters in making my determination. Gnaala Karla Booja and Waste Stream rely on the mining agreement entered into between them in their agreement to the matters set out in paragraph [11](d) above.
The Government party relies upon the mutual satisfaction and agreement of the native title party and the grantee party to the matters set out in paragraph [11](d) and also consents to me taking that agreement into account, and having no further regard to those matters.
Implicit in the parties’ joint submission is that there are no other matters parties wish to draw to my attention as being relevant to the determination.
I am also required to take into account the nature and extent of existing non-native title rights and interests and existing uses by persons other than the native title parties. The underlying tenure of M70/1337 is predominantly unallocated crown land (90.74 per cent). The lease also overlaps a number of petroleum/geothermal pipeline licences and an exploration licence. However, in light of the agreement of all parties recorded above, I do not consider the overlap of the listed areas has any relevance to the determination the parties seek.
In joint submissions each party has agreed to, and supports, a determination under s 38 of the Act that M70/1337 may be granted to the Waste Stream without conditions.
In accordance with that submission, I make the following determination.
Determination
The determination of the Tribunal is that the act, being the grant of mining lease M70/1337 to Waste Stream Management Pty Ltd, may be done.
J R McNamara
Member
21 June 2018
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