Musgrave Minerals Limited and Another v Evelyn Gilla and Others on behalf of Yugunga-Nya

[2020] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Musgrave Minerals Limited and Another v Evelyn Gilla and Others on behalf of Yugunga-Nya [2020] NNTTA 54 (27 August 2020)

Application No: WF2020/0003

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

- and -

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

Musgrave Minerals Limited

(grantee party)

- and -

Evelyn Gilla and others on behalf of Yugunga-Nya (WC1999/046)

(native title party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION

Tribunal:

Member Helen Shurven

Place:

Perth

Date:

27 August 2020

Catchwords:

Native title – future act – application for a determination in relation to a mining lease – native title claimant application removed from Register of Native Title Claims – person ceases to be a native title party – Tribunal not entitled to deal with application – application dismissed s 148(a)

Legislation:

Native Title Act 1993 (Cth) ss 28(1)(b), 29, 30(2), 30A, 31(1)(b), 35, 38, 64(4), 148(a), 190(3)(b), 190A(1A), 190A(6), 190A(6A), 190A(6B), 190B, 190C, 253

Mining Act 1978 (WA) s 67

Cases:

Joan Margaret Martin on behalf of the Widi Mob/Western Australia/Westland Gold NL; ABC Resources Pty Ltd; WMC Resources Ltd; Resource Exploration NL and Gold Partners NL, [1999] NNTTA 228 (Widi Mob v WA and Others)

Representatives of the grantee party:

Jacob Loveland and Janet Procak, All Mining Legal Pty Ltd

Representative of the native title party: Kelsi Forrest, Roe Legal Services

Representatives of the Government party: Domhnall McCloskey, State Solicitor’s Office
Laurie Lehmann-Bybyk, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. On 23 October 2013, the State of Western Australia (the State) notified under s 29 of the Native Title Act 1993 (Cth) (the Act) that it intended to do the future act of granting mining lease M20/526 to Cue Minerals Pty Ltd. According to the notice, the proposed mining lease comprises an area of approximately 740 hectares, located approximately 30 kilometres east of Cue. In this decision, all legislative references are to the Act unless stated otherwise.

2. Any person who, four months after the s 29 notification day, is a native title party (a registered native title claimant or a body corporate) in relation to any of the land or waters that will be affected by the future act, has a procedural right to negotiate (see s 30(1)(a) and s 31). At the time of the notification and until 7 August 2020, Evelyn Gilla and others on behalf of the Yugunga-Nya People (WC1999/046) (Yugunga-Nya) were a native title party because they were a registered native title claimant over an area which included the proposed mining lease.

3. The proposed mining lease is an application to convert two underlying exploration licences which were originally granted to Cue Minerals Pty Ltd. Such a conversion application is permitted under s 67(1) of the Mining Act 1978 (WA) (Mining Act) - the holder of an exploration licence has the right to apply for, and have granted, one or more mining leases in respect of any part or parts of the land the subject of the exploration licence. If, after a conversion application is lodged with the State, the holder of the underlying exploration licence transfers that licence, then the conversion application continues in the name of the transferee, as if the transferee were the applicant (s 67(3) of the Mining Act).

4. By way of two registered transfers in 2017, a total of 100 per cent of the interest in the underlying exploration licences was transferred from Cue Minerals Pty Ltd to Musgrave Minerals Limited (Musgrave Minerals).

5. The normal negotiation procedure in s 31(1)(b) is that the ‘negotiation parties’ must negotiate in good faith with each native title party, with a view to obtaining their agreement to the doing of the act (which in this instance is the grant of the proposed mining lease M20/526). The negotiation parties are defined in s 30A as the Government party, any native title party and any grantee party. Up until Cue Minerals transferred the underlying exploration licences to Musgrave Minerals, Cue Minerals was the grantee party under s 30A. After the transfer, Musgrave Minerals became a grantee party with the corresponding obligation to negotiate in good faith under s 31(1)(b).

6. Under s 35, any negotiation party may apply to the arbitral body for a s 38 determination if there is no s 31(1)(b) agreement, provided at least six months have passed since the s 29 notification day. On 27 March 2020, Musgrave Minerals made an application for the National Native Title Tribunal (the Tribunal) to make a future act determination in relation to the mining lease (ss 35 and 38). I was appointed to conduct the inquiry into the application and make the future act determination.

7. On 10 March 2020, Yugunga-Nya amended their native title claimant application with the Federal Court (Court) and the Registrar of the Court gave a copy of the amended application to the Native Title Registrar (Registrar) that same day (see s 64(4)). This triggered the Registrar’s duty to consider the claim (see s 190A(1)). Because the amendments to the application did not meet the exception in s 190A(1A) and were greater than the amendments permitted by s 190A(6A), the test for registration under s 190A(6) applied (which is that, if the claim in the amended application satisfies all the conditions in ss 190B-190C, then the Registrar must accept the claim for registration).

8. On Friday 7 August 2020, a delegate of the Registrar decided that the Yugunga-Nya People’s claim did not satisfy all the conditions in ss 190B–190C and that the claim must not be accepted for registration (see s 190A(6B)). On the same day, the claim was removed from the Register of Native Title Claims (RNTC) (see s 190(3)(b)). As a consequence of the delegate’s decision and the removal of the claim from the RNTC, Yugunga-Nya ceased to be a registered native title claimant (see s 253 definition of ‘registered native title claimant’).

9. According to s 30(2), a person ceases to be a native title party if they cease to be a registered native title claimant. Section 28(1)(b) notes that an act to which the normal negotiation procedure applies is invalid to the extent that it affects native title unless, immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act. As there are now no native title parties over the land or waters concerned, the act (being the grant of M20/526) may be validly done without need for a s 31(1)(b) agreement or a determination by the Tribunal under s 38. Therefore, there is nothing to enliven the jurisdiction of the Tribunal and so I am of the view that the Tribunal is no longer entitled to deal with the application and must dismiss it under s 148(a).

10. On 9 August 2020, to accord procedural fairness, I advised Musgrave Minerals, the State and Yugunga-Nya of my view that the application should be dismissed and allowed them until 21 August 2020 to make submissions. Yugunga-Nya submitted that, ‘in the interests of fairness and public interest’, I am required to stay the inquiry into this future act determination application until the completion of any review or reconsideration of the delegate’s decision to not accept their claim for registration, because doing so would preserve the ‘status quo’. Yugunga-Nya referred to the Tribunal decision of Widi Mob v WA and Others, citing it as support for a stay in the proceedings being granted in the interests of fairness and the public interest. Musgrave Minerals and the State submitted that dismissing the application under s 148(a) was the only order, decision or determination that I could make.

11. I do not consider the factors outlined in Widi Mob v WA and Others are relevant to my consideration in relation to this future act determination application. If I were to make a decision to stay the application, then I am of the view that I would be ‘dealing’ with the application, contrary to s 148(a). Further, even if I decided to stay the application, it would not have the effect that Yugunga-Nya seek - which is to maintain the ‘status quo’ until the outcome of a review or reconsideration of their claim. According to the exception under s 28(1)(b), there is now no native title party in relation to any of the land or waters that will be affected by the act and so the State is permitted to validly do the act (that is, to make the grant). If Yugunga-Nya seek to prohibit the State from doing so, the Tribunal is not the appropriate institution to seek relief.

Determination

1. Future act determination application WF2020/0003 is dismissed under s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member
27 August 2020