Oceania Mining Resources Pty Ltd v Koongie Elvire
[2022] NNTTA 16
•28 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Oceania Mining Resources Pty Ltd & Another v Koongie Elvire and Others [2022] NNTTA 16 (28 February 2022)
Application Nos: | WF2021/0008 WF2021/0009 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination applications
Scotty Birrell & Ors on behalf of the Koongie-Elvire Native Title Claim Group (WC1999/040)
(native title party)
- and -
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(native title party)
- and -
Oceania Mining Resources & WA Mining Resources Pty Ltd
(grantee parties)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member Helen Shurven |
Place: | Melbourne |
Date: | 28 February 2022 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of exploration licences – negotiating parties unable to formalise s 31(1)(b) agreement – s 39(4) ancillary agreement taken into account – act may be done |
Legislation: | Native Title Act 1993 (Cth) ss 31, 35, 36, 38, 39, 109, 142 |
Cases: | Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland;[2006] NNTTA 61; (2006) 200 FLR 182 (Foster v Copper Strike Ltd) Koongie-Elvire Native Title Claim Group v Oceania Mining Resources Pty Ltd and Another [2019] NNTTA 55 (Koongie-Elvire v Oceania Mining) Shirley Purdie & Ors on behalf of Yurriyangem Taam v WA Mining Resources Pty Ltd and Another [2020] NNTTA 4 (Yurriyangem Taam v WA Mining Resources) 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) |
| Representatives of the native title party: | Maximillian Roelofsen, Scott Howieson and Gareth Ogilvie, Kimberley Land Council Aboriginal Corporation |
| Representative of the grantee party: | Hong-Jim Saw, WA Mining Company and Oceania Mining Resources |
| Representatives of the Government party: | Dennis Jacobs, Department of Mining, Industry Regulation and Safety Anthony Civiello, State Solicitor's Office |
REASONS FOR DETERMINATION
This decision concerns applications made to the National Native Title Tribunal (the Tribunal), and accepted on 16 November 2021, as follows:
(a)by Oceania Mining Resources Pty Ltd (Oceania Mining) seeking a future act determination that exploration licence E80/5130 may be granted to them – the licence is within the region where the Koongie-Elvire Native Title Claim Group (Koongie-Elvire) hold native title rights and interests; and
(b)by WA Mining Resources Pty Ltd (WA Mining) seeking a future act determination that exploration licence E80/5218 may be granted to them – the licence is within the region where Yurriyangem Taam Aboriginal Corporation RNTBC (Yurriyangem Taam) hold native title rights and interests.
These proposed licences, which are in the State of Western Australia, and the future act determination applications requesting their grant, came to be before the Tribunal because:
(a)on 30 July 2019, I concluded the expedited procedure did not apply to the proposed grant of exploration licence E80/5130 to Oceania Mining (see Koongie-Elvire v Oceania Mining). This was on the basis that sites of particular significance existed which were likely to suffer from interference by exploration activities. The proposed licence covers approximately 29.26 square kilometres and is approximately 12 kilometres east of Halls Creek; and
(b)on 17 January 2020, I concluded the expedited procedure did not apply to the proposed grant of exploration licence E80/5218 to WA Mining (see Yurriyangem Taam v WA Mining Resources). This was on the basis that sites of particular significance existed which were likely to suffer from interference by exploration activities. The proposed licence is approximately 65 square kilometres and is approximately 96 kilometres south of Wyndham.
The expedited procedure is outlined in s 32 of the Native Title Act 1993 (Cth). Given that the proposed licences were held not to fall under the expedited procedure, and for the purposes of the negotiation procedure set out in s 31 of the Act, Oceania Mining, the Koongie-Elvire and the State are the negotiating parties for E80/5130. For E80/5218, WA Mining, Yurriyangem Taam and the State are the negotiating parties. I will refer collectively to Koongie-Elvire and Yurriyangem Taam as the native title parties, and to Oceania Mining and WA Mining as the explorers, as needed, throughout this decision.
Section 31(1)(b) of the Act requires the negotiating parties to negotiate in good faith with a view to obtaining the agreement of the relevant native title party to the grant of the respective exploration licence. If, after six months, the parties are unable to agree, any of the parties may apply to the Tribunal for a determination that the act of granting the licence may be done. I must not make a determination on the application in this matter if a native title party satisfies me that the State or the relevant explorer did not negotiate in good faith (s 36(2)). In this case, the native title parties did not challenge the other parties’ good faith, so it is not necessary for me to further consider that issue, and I have the power to proceed to determine these applications. The applications were made by the same representative for both grantee parties, and the agreement executed by both grantee parties with the native title party were in similar terms. No party took issue with the applications being dealt with in the same inquiry.
For the grant of tenements in Western Australia, the State requires negotiation parties to sign a State Deed, which meets the formal requirements of s 31(1)(b) of the Act, as all negotiation parties must sign. The Department of Mines, Industry Regulation and Safety (DMIRS) provides the State Deed, which is then required to be executed by all parties (with the relevant Minister (or their representative) executing the State Deed on behalf of the State).
In relation to this current inquiry, the native title parties and the explorers have signed and executed an agreement between them for each licence, the ancillary agreements, which set out the agreed terms and conditions, but this is not a s31(1)(b) agreement as not all parties are signatories. Parties agree that as a result of the native title parties and the explorers executing the ancillary agreements, the grant of the proposed licences will have a minimal impact on the native title parties’ rights and interests.
As outlined in s 39(4) of the Act, before making a determination, the Tribunal ‘must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree’. I have taken into account the ancillary agreements, 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 relate to those issues’ (see Foster v Copper Strike).
In taking information relevant to s 39(4)(b) into account, I note all parties in this inquiry were represented. As such I have relied on the assertions and information provided for the purposes of this inquiry from those representatives, together with all party submissions, and the copy of the ancillary agreements.
The future act determination applications
These future act determination applications satisfied the requirements under s 35(1) of the Act, as they were made more than six months after the exploration licences were notified, and no s 31(1)(b) agreement has been made. I was appointed by the Tribunal President to conduct the inquiry into these future act determination applications.
The inquiry
The decision which I can make in determining the outcome of this inquiry, as outlined in s 38 of the Act, is one of the following:
· the act must not be done;
· the act may be done;
· the act may be done subject to conditions to be complied with by any of the parties.
The criteria that I must take into account in making a determination are those set out in s 39(1) of the Act. The Act does not specify the weight to be afforded to each criteria listed in s 39; that will depend on the evidence (see Western Australia v Thomas at 166-167). There was no reference in the applications to any conditions being sought to be applied in this inquiry.
Having conducted the inquiry and obtained submissions from all parties, including at a preliminary conference, my decision is that the acts, being the grant of E80/5130 and E80/5218, may be done. I did not consider any conditions were appropriate, based on information provided in written materials from parties and oral discussion at the preliminary conference.
I outline the course of the inquiry below.
The preliminary conference
I convened a preliminary conference on 6 December 2021.
At the preliminary conference, it was outlined and confirmed that the relevant native title party and explorer had executed ancillary agreements between themselves, with respect to each proposed licence. The native title parties had sought amendments to the State Deed, as was also outlined in the future act determination applications made by the explorers. However, the State did not agree to those proposed amendments, and so parties were effectively at an impasse, with the State Deed unable to be executed between the negotiating parties for each exploration licence.
Following the preliminary conference, directions were issued for the guidance of parties, setting the timeline for the inquiry. The directions were so cast to align with the Tribunal’s way of operating, as set out in sections 109 and 142 of the Act, including to be economical, informal and prompt in the conduct of the inquiry, and to ensure all parties had reasonable opportunity to present their case and make submissions.
Information from the explorers and the State
The State and the explorers lodged joint submissions. Those submissions included the assertions (at 7-10) that:
· the interests, proposals, opinions and wishes of the native title parties ‘in relation to the management, use or control of the relevant land and waters have been taken into account by the Grantee Party and have been addressed in the Ancillary Agreement’
· there is economic significance to the grant of the exploration licences (for the purposes of my consideration of s 39(1)(c))
· the public interest supports the grant of the exploration licences (for the purposes of my consideration of s 39(1)(e))
· that the native title parties and the explorers have addressed, to their mutual satisfaction, ss 39(1)(a) and (b)
The State also independently provided mapping, tengraph information, draft endorsements and conditions intended to be imposed on the grant of each exploration licence, and other associated materials, including the explorer’s application for each exploration licence. I note that E80/5218 has no sites recorded under the State’s Aboriginal Heritage Inquiry System (AHIS), and E80/5130 has four registered sites and two other heritage places recorded on the AHIS.
The explorers and the State confirmed they did not oppose me deciding this inquiry on the papers (at 13), nor did they oppose a decision that the exploration licences be granted to the explorers (at 12).
Information from the native title parties
Submissions made by the native title parties confirmed (at 6-7), for each exploration licence, that:
The Native Title Party and the Grantee Party have reached an agreement regarding the grant of [the licence] and addressed the effect of [the licence] regarding each of the matters set out in sections 39(1)(a)-(b) of the Act to their mutual satisfaction.
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 Party and have been addressed in their agreement.
The native title parties confirmed they did not oppose me deciding this inquiry on the papers, nor did they oppose a decision that the exploration licences be granted to the explorers (at 9-10). They also provided a copy of the executed ancillary agreements, on the basis they were kept in confidence for the purposes of the inquiry.
Issues to take into account in making a determination
In making a decision, I can have regard to the criteria in s 39(1)(a) of the Act. These criteria include the effect of the exploration licences on the native title parties’ enjoyment of their registered native title rights and interests. These rights include to: exclusively possess, occupy, use and enjoy the area; access the area; maintain and protect places of importance under traditional laws, customs and practices; and manage, conserve and look after the land, water and resources.
I must consider the effect of the exploration licences on the native title parties way of life, culture and traditions; development of their social, cultural and economic structures; freedom of access; and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to the native title parties in accordance with their traditions.
I am also required to take into account the other matters specified in s 39(1), namely: the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the land or waters affected by the exploration licences; the economic or other significance of the licences to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islander peoples who live there; the public interest in the licences; as well as 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 by persons other than the native title parties. Finally, I must take into account any other matter I consider to be relevant.
As noted earlier in this decison, if there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then I must take that information into account in making my determination, and need not take into account the matters in s 39(1) to the extent those matters relate to the issues agreed (see s 39(4) of the Act).
The future act determination applications made by the explorers provided commentary about the proposed exploration works, the circumstances of heritage surveys and access to the exploration licences, and the general process to be used to identify mineral targets. I also note the ancillary agreements, which outline the terms on which parties agree to the grant of the licences, which includes heritage issues and effects on native title rights and interests.
Taking into account that information, the written submissions of parties, and the information outlined at the preliminary conference, my conclusions are that the grant of these exploration licences will not adversely affect any of the registered native title rights and interests of the native title parties. I note parties have considered heritage issues, and I conclude any activities carried out by the explorers under the grants are unlikely to affect any areas or sites of particular significance to the native title parties in accordance with their traditions, or affect any of the rights and interests as envisaged by s 39 of the Act. I also conclude there is economic significance of the proposed exploration.
There are no other matters which I need to consider in relation to this inquiry.
Conclusion
I can consider s 39 of the Act, and take into account any agreement between the negotiating parties. I have considered all of the written material, heard from parties at the preliminary conference, and conclude the future acts can be done, without imposing conditions.
Determination
The determination of the Tribunal is that the act, being the grant of exploration licence E80/5130 to Oceania Mining Resources Pty Ltd, may be done.
The determination of the Tribunal is that the act, being the grant of exploration licence E80/5218 to WA Mining Resources Pty Ltd, may be done.
Helen Shurven
Member
28 February 2022
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