Minexaus Pty Ltd v Yurriyangem Taam Aboriginal Corporation RNTBC - [2023] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Minexaus Pty Ltd v Yurriyangem Taam Aboriginal Corporation RNTBC & Anor [2023] NNTTA 40 (29 November 2023)

Application No:

WF2023/0011

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

Minexaus Pty Ltd

(grantee party/Minexaus)

- and -

Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)

(native title party/YTAC)

- and -

State of Western Australia

(State)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	29 November 2023

Catchwords:

Native title – future act – application for determination in relation to proposed grant of exploration licence – negotiating parties unable to formalise s 31(1)(b) agreement – s 39(4) – ancillary agreement taken into account

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 37, 38, 39, 109, 142 (the Act)

Mining Act 1978 (WA) s 58 (Mining Act)

Cases:

Derrick Smith & Ors on behalf of Gnaala Karla Booja v Ransberg Pty Ltd and Another [2017] NNTTA 69 (Gnaala Karla Booja v Ransberg)

Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Purdie v Western Australia)

Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources NL; Aurora Gold (WA) Ltd (1996) 133 FLR 124; [1996] NNTTA 30(Western Australia v Thomas)

Yurriyangem Taam v Minexaus Pty Ltd and Another [2021] NNTTA 10 (Yurriyangem Taam v Minexaus)

Representative of native title party:

Scott Howieson, Kimberley Land Council

Representative of the grantee party:

Roger Gough

Representatives of the State:

Dennis Jacobs, Department of Mines, Industry Regulation and Safety; Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

This decision arises following an application to the National Native Title Tribunal under s 35 of the Act, and concerns whether the State may grant exploration licence 80/5462 to Minexaus.
The proposed licence is 322.98 sq km in size and is located 108.9 km north westerly of Halls Creek in Western Australia. The area of the proposed licence overlaps land and waters subject to the native title determination made in Purdie v Western Australia. YTAC is the prescribed body corporate for the native title holders under that determination.
Accordingly, YTAC is the registered native title body corporate in relation to land and waters that will be affected by the grant of the licence, and the native title party for the purposes of this inquiry.[1]
[1] See s 30 of the Act.
In accordance with s 29 of the Act the State gave notice of its intention to grant the licence, specifying the 'notification day' of 12 February 2020. The notice included a statement that the State considered the proposed grant of the licence was a future act attracting the expedited procedure. However, in March 2021 the Tribunal determined the grant of the licence was not an act attracting the expedited procedure.[2] As a result, the State, Minexaus and YTAC (collectively, the negotiation parties) were required to negotiate in good faith with a view to obtaining the native title party’s agreement to the grant of the licence with or without conditions.[3]
[2] See Yurriyangeem Taam v Minexaus.
[3] See s 31(1)(b) of the Act.
Any negotiation party may apply for a determination under s 35 of the Act if:
(a)at least six months have passed since the notification date; and
(b)no agreement of the kind mentioned in s 31(1)(b) has been made in relation to the act.
On 15 June 2023, being at least six months after the notification day, Minexaus lodged a future act determination application relating to the proposed licence, which provided:
The effect of the grants of Exploration Licences 80/5462 on native title is that the grant of the mining lease will not extinguish native title. Any impact on native title will be minimised by the Grantee Party abiding by the Agreement that has been executed between themselves and the Native Title Party.

Consideration

I must not make a determination in this matter if any negotiation party satisfies me that any other negotiation party did not negotiate in good faith.[4] In this matter, all parties confirmed that the application was unopposed and that there were no allegations of a failure to negotiate in good faith raised by any party. All parties have also confirmed that no agreement under s 31(1)(b) has been made in relation to this act. There is nothing preventing me from making a determination in this matter under s 35(1).
[4] See s 36(2) of the Act.
Section 38(1) of the Act provides that, unless s 37 applies, I must make one of the following determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
The exceptions set out in s 37 of the Act do not apply in this matter, as no agreement of the kind mentioned in s 31(1)(b) has been made, and no determination under s 36A has been made.
Section 39 of the Act prescribes the criteria for making a determination pursuant to s 38 and sets out the matters I must take into account, providing:
Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties 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 or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(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;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non-native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a)must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
The Act does not specify the weight to be afforded to each criterion listed in s 39; that will depend on the evidence.[5]
[5] See Western Australia v Thomas at 166-167.
Before making a determination, the Tribunal ‘must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree’.[6]
[6] See s 39(4) of the Act.
As set out above, all three negotiation parties have not entered into an agreement of the kind mentioned in s 31(1)(b). YTAC and Minexaus have however reached a separate agreement regarding the grant of the licence (Ancillary Agreement).
The parties contend that the Ancillary Agreement addresses the effect of the grant of the licence on each of the matters set out in s 39(1)(a) and (b) of the Act to YTAC’s satisfaction, and they each consent to me taking that agreement into account and do not oppose a determination being made that the licence be granted to Minexaus. The State and Minexaus made such contentions in joint submissions, while YTAC has provided initial and further contentions. The further contentions helpfully contained more specific detail regarding the key terms and circumstances of the Ancillary Agreement and assisted my conclusions in this matter.[7]
[7] YTAC further contentions dated 23 November 2023.
I have taken into account the parties contentions regarding the Ancillary Agreement and its effect, and as per s 39(4)(b), I need not take into account matters mentioned in s 39(1) to the extent that the matters agreed in the Ancillary Agreement relate to those issues.[8]
[8] See Gnaala Karla Booja v Ransberg.
YTAC submit the native title party and the grantee have reached agreement regarding the grant, which they consider addresses each of the matters set out in sections 39(1)(a)-(b) of the Act to their mutual satisfaction. They also contend 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 taken into account by the grantee and have been addressed in the agreement between them.[9]
[9] YTAC contentions dated 26 September 2023 at [6]-[8].
The joint contentions of the State and Minexaus also confirm that the Ancillary Agreement addresses the effect of the grant of the licence regarding each of the matters set out in sections 39(1)(a) and (b) of the Act, to the agreed satisfaction of YTAC. Further, they contend 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 taken into account by Minexaus and are addressed in the agreement.[10]
[10] State and Minexaus joint contentions dated 26 September 2023 at [7]-[8] (Joint contentions).
Minexaus also contends that the grant of the licence is of ‘economic significance to Australia, the State of Western Australia, the area in which the Tenement is located and the Aboriginal people who live in that area’[11] and that this may be taken into account by the Tribunal pursuant to s 39(1)(e). They also submit that the public interest supports the grant and that this may be taken into account by the Tribunal.[12] No evidence or further detail is provided to support these contentions, however such statements are supported by the State and not disputed by YTAC. I have no evidence before me to refute such submissions.
[11] Joint contentions at [9].
[12] Joint contentions at [10].
In the joint submissions, the State relies on the contentions made by Minexaus in relation to the matters addressing s 39(1)(a),(b),(c) and (e) and ‘on that basis, agrees to the Tribunal taking those statements into account and having no further regard to the matters set out in section 39(1) of the Act.’[13]
[13] Joint contentions at [12].
I note YTAC is legally represented by Kimberley Land Council and the State by the State Solicitor’s Office. YTAC have been informed and have had the benefit of legal advice and representation throughout this inquiry. In making this determination, I have relied on the contentions, evidence and information provided by the parties and their representatives for the purposes of the inquiry.
Having regard to the evidence before me, I take into account the Ancillary Agreement between YTAC and Minexaus and the contentions made in this inquiry that such agreement addresses the effect of the grant of the licence on each of the matters set out in s 39(1)(a) and (b) of the Act.
In taking the agreement of the parties into account, I also note the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal, and prompt way[14] and must ensure all parties have a reasonable opportunity to present their case and make submissions.[15]
[14] See s 109 of the Act.
[15] See s 142 of the Act.
The parties have not made submissions that I should make a determination that the act may be done subject to any conditions. Based on the information before me, I do not consider a determination made in this inquiry should be subject to any conditions.
The parties each do not oppose a determination being made under s 38 that the licence be granted to Minexaus, with the State and the grantee ‘unequivocally’[16] agreeing to such determination.
[16] Joint contentions at [13].
Having conducted the inquiry, considered the evidence, and obtained submissions from all parties, including orally at a preliminary conference, my decision is that the act may be done.

Determination

The determination of the Tribunal is that the act, being the grant of exploration license E80/5462 to Minexaus Pty Ltd, may be done.

Ms Lisa Eaton
Member
29 November 2023