Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People
[2004] NNTTA 6
•5 February 2004
NATIONAL NATIVE TITLE TRIBUNAL
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People, [2004] NNTTA 6 (5 February 2004)
Application No: VF03/1
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Mt Gingee Munjie Resources Pty Ltd (Applicant/grantee party)
- and -
The State of Victoria (Government party)
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Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People (VC97/4) (native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Melbourne
Date: 5 February 2004
Catchwords: Native title – future act – application for determination in relation to a mining licence – factions within native title party permitted to appear separately – parties agreement to a consent determination – consent determination supported by evidence – grantee party’s intended use of mining licence may change – conditions to notify native title party of Work Plans or Work Plan Variations – determination that the act may be done with conditions.
Legislation:Native Title Act 1993 (Cth) ss 25-44, 29, 31, 35, 36, 37(a), 38, 39, 41A(1)(a), 109, 139
Mineral Resources Development Act 1990 (Vic), ss 15, 25, 40, 41
Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) ss 10(a), 21(1), 23(2)
Cases:Cheinmora v Striker Resources NL & Ors; Dann v Western Australia & Ors (1996) 142 ALR 21
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner
Timothy Glen Summons/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People, NNTT VF02/2, [2003] NNTTA 66 (16 April 2003), Hon C J Sumner
Victorian Gold Mines NL v Victoria [2002] NNTTA 130; (2002) 170 FLR 1
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Hearing Date: 23 January 2004
Counsel for the
grantee party: Ms Georgia Denisenko, Just Outcomes (Aust) Pty Ltd
Counsel for the
Government party: Ms Jennifer Jude, Victorian Government Solicitor
Counsel for the
native title party: Dr Cecilia O’Brien
REASONS FOR FUTURE ACT DETERMINATION
Background
On 6 January 1997, Mt Gingee Munjie Resources Pty Ltd (‘the grantee party’/‘MGM’) applied for mining licence MIN5180 (‘the mining licence’) under s 15 of the Mineral Resources Development Act 1990 (Vic) (‘the MRDA’).
On 24 September 1997, the State of Victoria (‘the Government party’) gave notice in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘the NTA’) of its intention to grant the mining licence.
The grant of the mining licence under s 25 of the MRDA which is proposed to be for a term of five years is a future act and cannot validly be done unless the right to negotiate provisions of the Act are complied with (Subdivision P of Division 3 of Part 2 (ss 25-44)).
The land which is the subject of the mining licence application falls within the boundaries of Crown allotment 12, Section 4, Parish of Jirnkee, County of Dargo, and totals an area of 26.1 hectares. It is in the Gippsland region, approximately 2.5 kilometres south of Cassilis and within the Cassilis Historic Area which is an historical gold mining region dating back to the mid 1800s. It is in the vicinity of the township of Swifts Creek. The area which will be affected by the grant is predominantly natural bush land. The land is Reserved Forest under the Forests Act 1958 and was originally dedicated as such under the provisions of earlier legislation. The s 29 notice says that, subject to approval, work under the proposed mining licence may include underground mining and exploration, milling and ore processing. The evidence is that while the grantee party may utilise MIN5180 for mining in the future its proposed initial utilisation of the area is as a transport route for ore mined out of mining licence MIN5335 which is located immediately to the north of proposed MIN5180 and held by Duval Dene, a subsidiary of the grantee party. Ore needs to be transported from MIN5335 on a track which passes through proposed MIN5180 to a processing plant proposed to be built on another mining licence (MIN5403 – granted to MGM in October 2003 over private land). The track will require some upgrading. Some limited exploration will also be undertaken on MIN5180 in order to meet the conditions to be imposed by the Government party on the grant. In addition to the track on MIN5180 there is, some 200 metres to the south of the boundary of MIN5335 which abuts the boundary of MIN5180, what is known as Shamrock Portal which provides the entrance to the Shamrock Adit. This Adit is also partly on MIN5180 and has the capacity to provide a transport tunnel for ore mined on MIN5335 down very steep terrain to the Portal. If the Portal is used ore will then be extracted from the Portal for transport along the track on MIN5180 to the proposed processing plant. There will be no mining on MIN5180 at present but there may need to be some upgrading of the Portal which was constructed in 1986 by a previous mining company if it is utilised to transport ore. If used there will be some activity in the vicinity of the Portal but no present intention to mine. The road is not a Government Road although used by Government agencies for access from time to time. It was constructed by a previous mining company. There will be no excavation or clearing of the road but it will be upgraded with tailings from MIN5335.
Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose and Robert James Farnham are the registered native title claimant over an area which includes the area of the mining licence and are the native title party in these proceedings (native title determination application VG6007/98 (Tribunal Claim No VC97/4) made and originally registered on 4 April 1997 and amended and registered under the 1998 amendments to the Act on 1 April 1999).
On 5 August 2003, being a period of six months after the s 29 notice was given, the grantee party made an application to the Tribunal under s 35 of the Act for a future act determination (‘the s 35 application’).
No agreement between the negotiation parties to the granting of the mining licence of the kind mentioned in para 31(1)(b) of the Act has been made (s 37(a)) or been given to the Tribunal (s 41A(1)(a)) and the Tribunal must conduct an inquiry (s 139) and make a determination (s 38).
Section 38 of the Act specifies the types of determinations which the Tribunal may make – that the act must not be done; that the act may be done; or the act may be done subject to conditions to be complied with by any of the parties. Section 39 specifies the criteria which the Tribunal must take into account in making its determination.
Preliminary proceedings
The claim group is and has been for some time divided into two factions. (see Victorian Gold Mines NL v Victoria [2002] NNTTA 130; (2002) 170 FLR 1 (‘Victorian Gold’); Timothy Glen Summons/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham on behalf of the Gunai/Kurnai People, NNTT VF02/2, [2003] NNTTA 66 (16 April 2003), Hon C J Sumner (‘Summons’); Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner (‘MGM – preliminary issues’)). Of the persons named as the registered native title claimant Graham (Bootsie) Thorpe and Robert James Farnham are in the Gunai faction and Lindsay Gordon Mobourne and Regina Lillian Rose are in the Kurnai faction. Although not persons named as the applicant, Pauline Mullett is the spokesperson for the Kurnai faction and Albert Mullett is the spokesperson for the Gurnai faction.
On 22 December 2003 (MGM – preliminary issues) I decided:
in relation to the preliminary point raised by the Government party that individual persons named as part of the applicant or factions within it are not a native title party and do not have standing to make a contention that the Government or grantee parties have not negotiated in good faith unless authorised to do so by the claim group and that the Kurnai faction alone (the Gunai faction having refrained form challenging whether negotiation in good faith had occurred) did not have authority on its own to contend that the Government or grantee party had not negotiated in good faith as required by s 31(2)(a) of the Act; but
that nevertheless on the contentions and evidence submitted by the parties I was satisfied that the required negotiations in good faith had taken place.
The hearing
In accordance with directions made by the Tribunal the parties provided contentions and documents including witness statements in preparation for the inquiry. I have had regard to the following contentions and documents in making my determination in addition to the evidence provided by the parties that they consent to a determination that the act may be done with agreed conditions.
Government party - Statement of Contentions and accompanying documentary evidence submitted on 28 November 2003 and the Statement of Marree Wendy Halligan with attachments dated 21 January 2004.
MGM - Statement of Contentions and supporting documentary evidence submitted on 5 December 2004; affidavit of Georgia Elizabeth Denisenko dated 20 January 2004 and accompanying exhibit.
Native title party (Kurnai faction) - submissions of Mrs Rose and Mr Mobourne on s 39 matters relevant to determination of application for MIN5180 and annexed photographs of artefacts taken by Pauline Mullett received on 27 January 2004 (‘the Kurnai faction’s submission’).
The split in the native title party which was evident in previous future act matters and in relation to the good faith issue continued in the substantive hearing. However despite the strict position at law on who constitutes a native title party and as foreshadowed in my decision on the preliminary point (MGM – preliminary issues at [28]) I adopted the approach in the Victorian Gold and Summons matters and permitted the factions to appear separately and make submissions and provide evidence. Mr Albert Mullet, the representative of the Gunai faction advised the Tribunal that neither he, nor his faction, would be putting in any submissions or contentions or attending the substantive hearing (telephone advice of 20 January 2004 to Hamish MacLeod, Tribunal case manager).
At the time of a Listing Hearing convened on 23 January 2004 the Kurnai faction had not complied with the Tribunal’s directions to provide contentions and documentary evidence. Although opposed by Ms Denisenko for MGM I permitted the Kurnai faction to lodge its submissions which it did on 27 and 28 January 2004. In allowing these late submissions I was partly influenced by the fact that all parties agreed that it would be appropriate to make a determination on the papers and that there would therefore be no delay in making the determination within six months of the s 35 application (s 36 of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable (s 36(1)) and to report to the Minister if it does not do so within six months of the application (s 36(3)). Further, the parties agreed to confer to see if agreement could be reached on a determination with conditions. My action is also supported by the Tribunal’s required way of operating (ss 109(1) and (2) NTA – fair, just, economical, informal, prompt and without being bound by technicalities, legal forms or rules of evidence) although the situation might have been different if a consequence of late filing had been permanent detriment to either the Government party or grantee party. To assist in the proposed settlement conference Ms Denisenko undertook to provide a draft determination for consideration by the other parties. On 28 January 2004, the Tribunal was informed that agreement had been reached between the parties on a determination and conditions. This was confirmed by Email correspondence to Dr O’Brien, counsel for the Kurnai faction and Ms Mullett on 29 January 2004.
Consent determination appropriate
The Tribunal has previously decided, in a number of matters, that it has power to make future act determinations by consent of all the parties (see for example Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 and cases cited therein). The Tribunal is not obliged to act on the consent of the parties but may do so after hearing the parties if it is appropriate in the circumstances. In this case the following factors support the making of a consent determination. First, the Tribunal has received most of the evidence and I am of the view that this is a case where a determination that the act may be done is appropriate. Even if the determination had not been by consent with agreed conditions the issue to be considered would have been whether to impose any conditions. I make some further observations about the evidence below. Second, the parties have been represented throughout by experienced legal practitioners.
Effect of the act on the enjoyment of registered native title rights and interests
There is no direct evidence of the effect of the future act on the enjoyment by the native title party of their registered native title rights and interests (s 39(1)(a)(i) NTA) which is one of the factors which the Tribunal must take into account in making its determination. The Kurnai faction’s submission in summary contains the following information. It says that the Kurnai are the original custodians and traditional owners of the site which is supported by the fact that the Aboriginal name for Swift’s Creek is ‘Bun Jirrah Gingee Munjie’. The submission refers to their historical association with the area and the existence of artefacts identified by Pauline Mullett (see below). It says that there are natural resources which are of significance to them which were used and traded by the Kurnai such as wattle and eucalyptus bark, rocks and minerals for spear heads, axe heads and flints. As custodians of the land local flora is also of significance to them which they are concerned to see conserved as part of the remaining alpine forest. They are concerned about contamination of the area by trucks using the track through MIN5180. Gold, although not used by the Kurnai as a resource, occupies an important place in Kurnai myth and legend. The submission says that prior to white contact the area between Swifts Creek (a township near MIN5180) and Omeo saw interaction between adjoining tribes and the present Omeo Highway follows the track which the Kurnai used for trade and raids on the Omeo tribe. There were well worn footpaths in the area used by Aboriginal People before European settlement and which the present day roads trace. There were other tracks in the high country used by the Kurnai to travel to the bogong moth eating festival held in the Snowy Mountains, which has been documented as an event of cultural significance to the Kurnai people and others. Evidence from early settlers suggests that individual Kurnai elders were regarded as having proprietary rights in the routes and camping places leading to the festival, the Kurnai faction’s submission asserts.
I note that this submission is not in the usual form of evidence (witness statement, affidavit or other document). However even if it was, it is largely historical information and does not reveal very much about the current enjoyment by the native title party of their registered native title rights and interests on the specific area of the mining licence. There needs to be sufficient evidence to demonstrate which registered native title rights will be affected and how they will be affected (WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 at [23]-[34]). This requires evidence of the current enjoyment of them. The mining licence the subject of the Victorian Gold determination is located less than a kilometre from MIN5180. In that matter representatives of the native title party from both factions were given the opportunity to give evidence at the site. There was no evidence to support a finding that, in a practical sense, the registered native title rights and interests of the native title party are enjoyed in the locality (Victorian Gold at [54]). There is nothing in the Kurnai faction’s submissions in this matter which leads to a different conclusion. This is not to say that the material, if presented as acceptable evidence, may not be relevant in the Federal Court proceedings to determine the existence of native title.
Effect of the act on sites of particular significance
Another factor to be taken into account in making a determination is the effect of the grant of the mining licence on sites of particular significance to the native title party in accordance with their traditions (s 39(1) (a)(v) NTA). In this respect there is some potentially relevant evidence. The Kurnai faction’s submission asserts that there are a number of culturally significant artefacts namely grinding stones ‘presently on the site’. I accept that Ms Pauline Mullett visited the site recently and took photographs of what appear to me to be artefacts, although it is acknowledged that no proper archaeological assessment of them has been carried out. This raises the question of whether the mining licence is to be over an area or site or sites of particular significance to the native tile party. A site of particular significance to the native tile party is one that is of special or more than ordinary significance (Cheinmora v Striker Resources NL & Ors; Dann v Western Australia & Ors (1996) 142 ALR 21). While the existence of artefacts of this kind may mean that there is an area or site of particular significance the evidence in this matter does not provide sufficient basis for making such a finding particularly given the paucity of evidence of contemporary enjoyment of native title rights and interests. There is certainly no evidence there are burial grounds on the area or that it is used for camping or the conduct of traditional ceremonies for instance which may assist in a determination about sites of significance. It also appears from the discussions which the parties had to settle this matter (information provided by Ms Denisenko in reporting the results of the conference of the parties) that the photographs may not have been taken on the actual area of the mining licence. Despite this I think it is reasonable to infer that if artefacts of this kind were found in the vicinity of the mining licence there is a possibility that they may also be found on the area of the licence. If artefacts are found and whether or not they constitute a site of particular significance under the NTA there is a comprehensive regime in Victorian which will minimise the chances of interference with them contrary to the wishes of the local Aboriginal community (the findings relating to the Aboriginal site protection regime made in Summons (at [90] to [98] are adopted in these reasons). The procedures outlined in those findings have been followed by the Government party in this case.
Aboriginal Affairs Victoria have advised that the area to be affected by the grant contains no Aboriginal archaeological relics registered under s 10(a) of the Archaeological and Aboriginal Relics Preservation Act 1972. In order to protect any unregistered relics which may be located within the mining licence area, standard conditions will be imposed on the licence stating that tenure of the licence does not exempt the holder from sections 21(1) and 23(2) of the Archaeological and Aboriginal Relics Preservation Act 1972 which respectively create offences of wilfully or negligently defacing or damaging or otherwise interfering with a relic or carrying out an act likely to endanger a relic and provide for the discovery of relics to be reported. Similar provisions of the Heritage Act 1995 (Vic) are dealt with in the same way thus putting a grantee party on notice of its obligations to protect relics which includes Aboriginal relics. Any site of particular significance to a native tile party which involve relics would be covered by these Acts. Under the site protection regime permission to interfere with them would need to given by the local Aboriginal community (in this case the Gippsland and East Gippsland Aboriginal Corporation) (Summons at [95]). There is no evidence to suggest that MGM will do other than comply with its legal obligations in respect of the protection of Aboriginal sites thus minimising the possibility of interference with any sites of particular significance to the native title party or other Aboriginal sites should they be found to exist.
In fact MGM have already sought the views of the Gippsland Cultural Heritage Unit which conducted a cultural heritage assessment at the site of MIN5180 on behalf of the Gippsland and East Gippsland Aboriginal Corporation which has the responsibility for this area under the relevant protective legislation, the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) and the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). The Unit’s assessment is that no cultural heritage survey is required at this stage but that if excavation works are carried out this may change and that a representative of the Gippsland and East Gippsland Aboriginal Corporation should be present when this occurs.
The lack of evidence relating to the effect of the grant of the mining licence on the enjoyment by the native title party of its registered native title rights and interests and evidence of Aboriginal sites and the protective regime in relation to them confirms that the terms of the consent determination are appropriate. If it were clear that the mining licence was only to be used to upgrade the track to transport ore then there would have been no basis for any conditions to be imposed. However, there is the possibility that further work and ground disturbing activity will be carried out including exploration, possible repairs to the Shamrock Portal and mining and while there remains a registered native title claim over the area it is reasonable for the grantee party to be required to give the native title party notice of anything which requires a Work Plan (or Variation) to be prepared for approval by the Government party under ss 40 and 41 of the MRDA. This will enable the native title party to take steps at least to ensure that it has some input into any activities to be carried out including those which may disturb any site which is found to exist. The native title party will also be able to make representations to the Government party on any conditions which might be imposed on approval of the Work Plan.
The determination is made in terms of the agreed draft submitted by the parties and the Tribunal congratulates the parties on reaching agreement.
Determination
The determination of the Tribunal is that mining licence 5180 (‘the mining licence’) may be granted to Mt Gingee Munjie Resources Pty Ltd, subject to the following conditions (1-4) to be complied with by the Grantee Party, the Native Title Party and the Government Party.
Conditions
Notice of Grant
The Grantee Party must give the Native Title Party a copy of the mining licence and work authority within 21 days of the date on which the Grantee Party is notified by the Government Party that the mining licence and work authority have been granted.
Information to be provided to the Native Title Party
2.1The Grantee Party will, as soon as practicable, give the Native Title Party copies of the following documents which it is required to submit or prepare from time to time in relation to the mining licence under the following provisions of the Mineral Resources Development Act 1990 (Vic) (‘MRDA’) and the regulations made thereunder:
(a)Work Plan (Section 40, Regulation 25 and Schedules 12 or 13)
(b)Variation of Work Plan (Section 41, Regulation 25, Schedules 12 or 13);
2.2The Grantee Party will, if requested by the Native Title Party, explain any aspects of the information provided under condition 2.2.
Notices
The requirements for any notice, request, consent, proposal, communication or information which must be given under this determination are set out in Schedule 1.
Definitions and Interpretation
In this determination:
(a)a reference to legislation includes a reference to any amendment to that legislation and if any provision of that legislation is repealed and replaced by other legislation, it includes a reference to the corresponding provision of the replacement legislation;
(b)‘Grantee Party’ means Mt Gingee Munjie Resources Pty Ltd, and any successors in law holding a legal or beneficial interest in the mining licence;
(c)‘mining’ has the same meaning given to that term in section 4 of the MRDA, being the extraction of minerals from land for the purpose of producing them commercially, and includes processing and treating ore;
(d)‘mining licence’ means MIN 5180;
(e)‘State’ means the State of Victoria and all its instrumentalities.
Schedule 1 - Notices, etc
Any notice, request, consent, proposal, communication, or information required to be given under this determination (‘notice, etc.’) must be made in writing, signed by the party giving it, and addressed as follows:
Grantee Party
Mt Gingee Munjie Resources Pty Ltd
Suite 3, 77 Mill Point Road
SOUTH PERTH WA 6151
Telephone: (08) 9368 2722
Facsimile: (08) 9368 2066
Native Title Party
C/O Native Title Services Victoria
75-79 Chetwynd Street
North Melbourne VIC 3051
Telephone: (03) 9321 5300
Facsimile: (03) 9326 4075
Mr Noel Waters
Waters Timms Solicitors
PO Box 5437
Cranbourne VIC 3977
Telephone: (03) 5996 1600
Fax: (03) 5996 2322
Government Party
Attention: Manager Minerals and Petroleum Policy
7th Floor, 250 Victoria Pde
East Melbourne Vic 3002
Telephone: (03) 9412 5121
Facsimile: (03) 9412 5156
A notice, etc. must be either delivered or posted to that party at their address in this Schedule 1; or faxed to that party at the fax number in this Schedule 1.
A notice, etc. is to be treated as given or made at the following time:
If it is delivered, when it is left at the relevant address;
If it is sent by post, 2 business days after it is posted by certified mail;
If it is sent by fax, as soon as the sender receives from the sender’s fax machine a report of an error free transmission to the correct fax number.
Where a notice, etc. is delivered, or an error free transmission report is received by a party after business hours, it will be treated as having been given or made at the beginning of business hours on the next business day. ‘Business hours’ means the hours between 9.00 a.m. and 5.00 p.m. Victorian time, excluding weekends and Victorian public holidays.
Written notice of any change of address or facsimile number of a party must be given to the other parties as soon as possible.
Hon C J Sumner
Deputy President
5 February 2004
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