MGM Bulk Pty Ltd v Lorraine Belotti & Ors on behalf of Gnaala Karla Booja - [2019] NNTTA 122

NATIONAL NATIVE TITLE TRIBUNAL

MGM Bulk Pty Ltd v Lorraine Belotti & Ors on behalf of Gnaala Karla Booja & Anor [2019] NNTTA 122 (18 December 2019)

Application No:

WF2019/0009

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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

MGM Bulk Pty Ltd

(grantee party)

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Lorraine Belotti & Ors on behalf of Gnaala Karla Booja (WC1998/058)

(native title party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Member JR McNamara
Place:	Brisbane
Date:	18 December 2019

Catchwords:

Native title – future act – proposed grant of mining lease – parties have not executed a s 31(1)(b) agreement – deceased native title applicants – native title decision – s 39 criteria considered – the act may be done

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 35, 38, 39

Cases:

The Griffin Coal Mining Company Pty Limited v Lorraine Belotti & Ors on behalf of Gnaala Karla Booja & Anor [2019] NNTTA 121 (Griffin Coal)

Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Limited [2013] FCA 1432 (Watson v Backreef Oil)

Representatives of the native title party:

Mr Peter Nettleton, South West Land & Sea Council Aboriginal Corporation

Representative of the grantee party:

Ms Claire McGowan, Mining Access Legal

Representatives of the Government party:

Ms Faye Mitchell, Department of Mines, Industry Regulation & Safety

Mr Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

Background

The State of Western Australia (‘the Government Party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant mining lease M70/1383 to MGM Bulk Pty Ltd (‘the Grantee Party’). The notification date specified in the notice was 11 July 2018. The notice triggered the right to negotiate process.
The proposed tenement is 10.11 ha in size, is located approximately 20 km north west of Harvey, and lies within the area of the registered native title claim of Gnaala Karla Booja (WC1998/058) (‘the Native Title Party’). The proposed tenement would authorise the Grantee Party to mine for minerals for 21 years from notification of grant and a right of renewal for 21 years.
I am informed that the parties have reached agreement in relation to the grant of the proposed tenement however it has not been possible for the parties to fully execute an agreement of the kind mentioned in s 31(1)(b) because three of the registered applicants comprising the Native Title Party are deceased and have not been removed as applicants.

Tribunal proceedings

On 1 November 2019 the Grantee Party lodged a future act determination application with the Tribunal in relation to the grant of the proposed tenement. The application satisfied the requirements under s 35(1) of the Act as it was made more than six months after the grant of the proposed lease was notified, and no s 31(1)(b) agreement has been made.
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 Tribunal wrote to the parties regarding the matter and convened a preliminary conference on 19 November 2019 where directions were made for the conduct of the inquiry (‘Directions’).
Directions called for any of the parties who wished to do so to provide to the Tribunal and all other parties a statement relating to the nature of the proposed mining lease, the effect of the grant of the proposed mining lease upon the matters referred to in s 39(1)(a), together with information relevant to my consideration of s 39(1)(b), s 39(1)(c), s 39(1)(e), and s 39(1)(f) of the Act. Should any submitting party propose that the determination of the Tribunal be that the act may be done subject to conditions to be complied with by any of the parties, the Directions also ask that party to provide the proposed conditions along with any reasoning for their inclusion.

Standing of the Native Title Party

I recently considered the standing of the Native Title Party in this matter in Griffin Coal. I repeat and rely on my consideration at [8]-[14] of that determination. The only point of difference in the facts is the date of the Working Party minutes, in this case being 25 September 2019.
In this matter, similar to the Griffin Coal matter, the material lodged in accordance with Directions included the Joint Submission of the Grantee Party, Native Title Party and Government Party dated 10 December 2019. The document is signed on behalf of the Native Title Party by the South West Aboriginal Land and Sea Council Aboriginal Corporation.
In the circumstance of this matter, and in the absence of some credible suggestion that it is not appropriate to do so, I have decided to take into account the contribution to the Joint Submission made by the Native Title Party.

Conditions

As noted earlier, 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 Directions at 2(g) allowed for a submitting party to propose that the determination of the Tribunal be that the act may be done subject to conditions to be complied with by any of the parties. The Direction also called for any proposed conditions to be provided along with any reasoning for their inclusion.
The Joint Submission at paragraph [10] says:
The Native Title Party, Grantee Party and Government party unequivocally support a determination under s 38 of the NTA that the Mining Lease may be granted to the Grantee Party without conditions.
Based on the clear and unambiguous terms of paragraph [10], and in the context of the Joint Submission as a whole, I am satisfied it is the view of the parties that they favour a determination that the act may be done without conditions.

Criteria for making arbitral body determination

Central to the scheme by which the Tribunal makes a determination about whether the future act may be done, with or without conditions, or must not be done, are the requirements of s 39 of the Act. Subsections (1) and (2) of that section provide a list of the criteria the Tribunal must take into account when making its decision. I consider each of the criteria in detail later in these reasons.
The Tribunal’s task involves weighing the various criteria in s 39 by giving proper consideration to them on the basis of evidence. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. The Act does not direct that greater weight be given to some criteria over others. The Tribunal undertakes the task set by s 39 by considering ‘each of the criteria … individually’ in light of the evidence and the submissions made by each party to the inquiry in relation to that criterion, and then engages in a ‘weighing process’ before making its determination: Watson v Backreef Oil at [27]-[28] per Siopis J.

Findings on the Section 39 criteria

As has been noted, I have taken into account the contribution to the Joint Submission made by the Native Title Party on the understanding it does not constitute a native title decision in accordance with my consideration of this issue at [8]-[14] in Griffin Coal.

Section 39(1)(a)(i)) – effect on the enjoyment by the native title party of their registered native title rights and interests

Section 39(1)(a)(ii) – effect on the way of life, culture and traditions of the native title party

Section 39(1)(a)(iii) – effect on the development of social, cultural and economic structures of the native title party

Section 39(1)(a)(iv) – effect on the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other ctivities of cultural significance on the land or waters in accordance with their traditions

Section 39(1)(a)(v) – effect on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions

Section 39(1)(b) – the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters what will be affected by the act

Section 39(2) – nature and extent of existing non-native title rights and interests in relation to the land or waters concerned; and existing use of the land or waters concerned by persons other than the native title parties

Section 39(2) directs that, in considering s 39(1)(a), the arbitral body must take into account 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 concerned by persons other than the native title parties.
The Government party has provided a range of searches which indicates that the proposed tenement area is wholly within State Forest Myalup, the Department of Biodiversity, Conservation and Attractions being the responsible agency. The proposed tenement area is also wholly within the Gnaarla Karla Booja native title determination application area (WC1998/058) and wholly within the area of the Gnaala Karla Booja Indigenous Land Use Agreement area (WI2015/005).
Included in the material lodged by the Government Party on 29 November 2019 in compliance with Direction 1 is a document prepared by the Grantee Party and dated July 2018 described as ‘Information for Native Title Claimants’. That document indicates that the Grantee Party is an experienced extraction industry operator, and included an ‘Outline of Proposed Work Programme’ which informs me of the following:
·MGM is proposing to extract limestone and sand from the proposed tenement;
·Initial operations will include: clearing of native vegetation ‘along access and on site’; construction of access routes; establishment of suitable sites for mobile crushing and screening plant and weighbridge; extraction of sand and limestone from pit face using excavator or front end loader.
·Rates of extraction will depend on market conditions but 500-1500 tonnes of lime per day can potentially be extracted.
·Based on the estimated resource the mine operating period will be 5 to 10 years.
·Opportunities for progressive rehabilitation will be pursued.
In relation to heritage matters the document says that the Grantee Party proposes to consult with the traditional owners with a view to entering into a heritage agreement.
The Joint Submission acknowledges a ‘Mining Agreement’ dated 25 September 2019 between the Grantee Party and the Native Title Party. At paragraph [3] of the Joint Submission after referring to the Mining Agreement it says that ‘it has not been possible to fully execute an agreement under section 31 of the NTA … because three of the registered applicants comprising the Native Title Party are deceased and have not been removed as registered applicants. The Government Party previously provided search results from the Department of Births Deaths and Marriages which confirms the details of the three deceased persons.
The Joint Statement records at [6] that the Grantee Party and the Native Title Party rely on the 25 September 2019 Mining Agreement and provide a confidential summary to support the assertions made in paragraph [4] as follows:
a.   the grant of the Mining Lease will have no significant adverse impacts on:
i.the Native Title Party’s exercise of their registered native title rights and interests;
ii.the Native Title Party’s way of life, culture and traditions;
iii.the development of the Native Title Party’s social, cultural and economic structures;
iv.the Native Title Party’s freedom of access to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
v.any area or site on the land and waters concerned of particular significance to the Native Title Party;
b.   the interests, proposals, opinions and wishes of the Native Title Party in relation to the management, use or control of the relevant land and waters have been considered and taken into account by the Grantee Party;
c.   the grant of the Mining Lease is of economic significance to Australia, the State of Western Australia, the area in which the Mining Lease is located and the Aboriginal people who live in that area; and
d.   the public interest supports the grant of the Mining Lease.
The confidential summary lists the key terms as including consent of the Gnaala Karla Booja to the grant of M70/1383, compensation, cultural awareness training, employment and job training initiatives, consultation regarding rehabilitation and standard provisions covering a range of matters.
The material provided indicates to me that there is a common understanding regarding the factors in s 39(1). I find the grant of the proposed tenement is unlikely to affect the enjoyment by the Native Title Party of their registered native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures; and freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance.
In evaluating the criteria outlined in ss 39(1)(a)(v) and 39(1)(b), I have taken into account the 25 September 2019 Mining Agreement to the extent that I can draw inferences regarding its content from the key terms listed in the confidential summary document. Surprisingly, the key terms listed do not include heritage protection or heritage survey arrangements. I noted above the commitment of the Grantee Party referred to in the ‘Information for Native Title Claimants’ document concerning the intention to consult and enter into a heritage agreement.
AHIS search results indicate that there are no registered Aboriginal sites in the area of the proposed tenement. Under the heading ‘South West Settlement ILUA Disclaimer’ is the following note:
Your heritage enquiry is on land within or adjacent to the following Indigenous Land Use Agreement(s): Gnaala Karla Booja People ILUA.
…
The ILUAs bind the parties (including ‘the State’, which encompasses all State Government Departments and certain State Government agencies) to enter into a Noongar Standard Heritage Agreement (NSHA) when conducting Aboriginal Heritage Surveys in the ILUA areas... It is recommended a NSHA is entered into, and an ’Activity Notice’ issued under the NSHA, if there is a risk that an activity will ‘impact’ (i.e. by excavating, damaging, destroying or altering in any way) an Aboriginal heritage site. The Aboriginal Heritage Due Diligence Guidelines, which are referenced by the NSHA, provide guidance on how to assess the potential risk to Aboriginal heritage.
Likewise, from 8 June 2015 the Department of Mines, Industry Regulation and Safety (DMIRS) in granting Mineral, Petroleum and related Access Authority tenures within the South West Settlement ILUA areas, will place a condition on these tenures requiring a heritage agreement or a NSHA before any rights can be exercised.
…
The Government Party has not stated that a condition ‘requiring a heritage agreement or a NSHA before any rights can be exercised’ will be placed on the grant of the proposed tenement – although there is a clear commitment to do so and I proceed on the understanding that the condition will be imposed. The imposition of such a condition assists me in my consideration of impacts relevant to s 39(1)(a)(v). I find that the interests, proposals, opinions or wishes of the Native Title Party, to the extent they can be discerned, have been taken into account by the Grantee Party and the Government Party.

Section 39(1)(c) – the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area

Section 39(1)(e) – any public interest in the doing of the act

Section 39(1)(c) requires me to take into account the economic or other significance of the grant of the proposed tenement to Australia, the State of Western Australia, the area in which the land concerned is located and Aboriginal peoples who live in that area. I am also required to consider any public interest in the granting of the proposed tenement (s 39(1)(e)).
The ‘Information for Native Title Claimants’ document suggests that due to the experience of the Grantee Party the grant of the proposed tenement will continue the economic success of the business in employment and revenue, and produce materials to meet known demand. I note the summary of key terms of the Mining Agreement document includes terms relating to employment opportunities and job training for the Gnaala Karla Booja people. This suggests to me that there is economic significance and public interest in the grant of the proposed tenement.

Section 39(1)(f) – any other matter the Tribunal considers relevant

I have referred to the Mining Agreement, and the matters identified as key terms in the summary document.

Conclusion

After taking into account the effect of the grant of the proposed tenement on the matters outlined in s 39(1), I conclude the act may be done.

Determination

The determination of the Tribunal is that the act being the grant of Mining Lease 70/1383 to MGM Bulk Pty Ltd may be done.

JR McNamara
Member
18 December 2019