Pacific Minerals Pty Ltd and Abc Resources Pty Ltd/Terence Ernest Campbell Hood, Regina Lillian Rose, Robert James Farnham, Lindsay Gordon Mobourne and Graham (Bootsie) Thorpe on Behalf of the Gunai/Kurnai...
[2000] NNTTA 258
•7 July 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
| Pacific Minerals Pty Ltd and ABC Resources Pty Ltd/Terence Ernest Campbell Hood, Regina Lillian Rose, Robert James Farnham, Lindsay Gordon Mobourne and Graham (Bootsie) Thorpe on behalf of the Gunai/Kurnai people/Victoria, [2000] NNTTA 258 (7 July 2000) |
| Application No: VF00/1 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of a Future Act Determination Application |
| Pacific Minerals Pty Ltd and ABC Resources Pty Ltd (Applicant/Grantee Party) |
| -and - |
| Terence Ernest Campbell Hood, Regina Lillian Rose, Robert James Farnham, Lindsay Gordon Mobourne and Graham (Bootsie) Thorpe on behalf of the Gunai/Kurnai people (Native Title Party) -and- |
| State of Victoria (Government Party) |
| FUTURE ACT DETERMINATION |
| Tribunal: Hon C J Sumner, Deputy President |
| Place: Melbourne |
| Date: 7 July 2000 |
Catchwords: Native title - future act - application for a determination in relation to a mining licence - consent determination can be made - determination that the act may be done with conditions. |
| Legislation: Native Title Act 1993 (Cth) ss 26(1), 35, 38, 39 Mineral Resources Development Act 1990 (Vic) s 25 |
| Cases: Western Australia/Ted Coomanoo Evans (Koara People)/Quinton Tucker (Ngurludharra Waljan People)/Townson Holdings NL, NNTT WF98/6, Hon CJ Sumner, 11 December 1998 Western Australia/Rita Dempster & Ors (Southern Noongar Families)/Paul Shiner & Ors, NNTT WF98/194, Prof Douglas Williamson QC, 3 June 1999 Western Australia/Dale Gary Graham & Ors, NNTT WF98/275 and WF98/279, Hon EM Franklyn QC, 28 June 1999 |
REASONS FOR DETERMINATION
Background
On 28 February 2000 Pacific Minerals Pty Ltd and ABC Resources Pty Ltd (‘the Grantee Party’) made application to the Tribunal under s 35 of the Native Title Act 1993 (Cth) (‘the NTA’) for a future act determination in relation to mining licence MIN 5237 which the State of Victoria (‘the Government party’) proposes to grant to it under s 25 of the Mineral Resources Development Act 1990 (Vic).
MIN 5237 is to be granted over 240.29 hectares of land located 6 kilometres east of Tabberabbera in the Parish of Morekana. The future act involves mining for minerals.
The grant of the mining licence is a future act covered by ss 26(1)(a) to 26(1)(c)(i) of the NTA and cannot validly be done unless the right to negotiate provisions are complied with.
On 2 December 1998 the Government party gave notice, in accordance with s 29 of the NTA, of its intention to grant the mining licence.
The following persons are registered native title claimants in relation to the land the subject of the proposed mining licence and ‘the Native Title Party’ in these proceedings - Terence Ernest Campbell Hood, Regina Lillian Rose, Robert James Farnham, Lindsay Gordon Mobourne and Graham (Bootsie) Thorpe on behalf of the Gunai/Kurnai people.
The future act determination application was made more than six months after the Government party gave notice of intention to do the proposed act (s 35).
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).
On 21 March 2000, at a Preliminary Conference convened by the Tribunal to set directions for the conduct of the inquiry, the Native Title Party advised that they did not take issue with whether the Government party and the Grantee party had negotiated in good faith (ss 31(1)(b) and 36(2)) and the Tribunal finds that it has jurisdiction to conduct the inquiry and make a determination.
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.
The inquiry
In accordance with directions made by the Tribunal the Government and Grantee parties provided contentions and documents in preparation for a hearing. The Native Title Party did not provide any contentions or documents on the basis that active negotiations were taking place between the parties and there was a prospect of agreement. On 7 June 2000, the Tribunal was advised that substantial agreement had been reached. On 13 June 2000, the Tribunal received a draft of a determination that the act may be done with conditions which the parties proposed be made by consent.
The Tribunal advised the parties that it was prepared to make a consent determination in the same terms as the draft, once it was finally approved by the parties.
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 Western Australia/Ted Coomanoo Evans (Koara People)/Quinton Tucker (Ngurludharra Waljan People)/Townson Holdings NL, NNTT WF98/6, Hon CJ Sumner, 11 December 1998 and Western Australia/Rita Dempster & Ors (Southern Noongar Families)/Paul Shiner & Ors, NNTT WF98/194, Prof Douglas Williamson QC, 3 June 1999). The Tribunal is not obliged to act on the consent of the parties but may do so if it is appropriate in the circumstances.
In this case the following factors support the making of a consent determination.
It is apparent that there have been extensive negotiations about the issues.
The contentions and documents from the Government and Grantee parties do not suggest that a determination that the act may be done is inappropriate.
The parties have been represented throughout by experienced legal practitioners. The Tribunal has previously said that in ordinary circumstances the Tribunal can act on the advice of solicitors for the parties (WF98/6; Western Australia/Graham (Murdeeu) and Others, NNTT WF98/275 and WF98/279, Hon EM Franklyn QC, 28 June 1999) and that it would require an exceptional situation to look beyond the consent of the parties where they are represented by experienced legal practitioners (WF98/194).
The Tribunal congratulates the parties on reaching agreement.
Future Act Determination
The Tribunal notes that:
A.The Native Title Party has lodged a native title determination application numbered VG6007/98 (VC97/4) under section 13 of the Native Title Act 1993 (Cth) (“the NTA”).
B.The Grantee Party, the Native Title Party and the Government Party (collectively ‘the parties’) have reached agreement on the terms of a Determination of the application by the Grantee Party for a future act determination under section 35 of the NTA.
C.Following negotiations in good faith, the parties have agreed that:
(a)the future act, namely the grant of mining licence MIN 5237 (“the mining licence”) to the Grantee Party, may be done subject to certain conditions; and
(b)each of them is prepared to consent to a determination by the Tribunal that the future act may be done subject to the conditions set out in the determination (“this Determination”); and
(c)accordingly, taking into account the circumstances of this application, it is appropriate for the Tribunal to make this Determination on this basis.
Determination
The Determination of the Tribunal is that the act, being the grant of the mining licence to the Grantee Party under section 25 of the Mineral Resources Development Act 1990 (Vic) (“the MRDA”), may be done, subject to the conditions set out in paragraphs 2 to 12 (inclusive) of this Determination.
Conditions
Notice of Grant
The Grantee Party will give to the Native Title Party a copy of the mining licence within 21 days of it receiving notification of the grant of the mining licence having been made.
Cultural Heritage and Environmental Management Plan
The Native Title Party and the Grantee Party will comply with the Cultural Heritage and Environmental Management Plan set out in Schedule 1 to this Determination.
Employment Opportunities
The Grantee Party will use its best endeavours to create, develop and provide employment and training opportunities for members of the Native Title Party in relation to the mining activities, (including rehabilitation and revegetation), undertaken in accordance with the mining licence when and where such opportunities arise. If either the Grantee Party or Native Title Party requests it, those parties will meet and hold discussions in good faith regarding the development and implementation of employment and training opportunities for members of the Native Title Party.
Assignment
5.1This condition 5 applies to any assignee of the Grantee Party, other than a mortgagee, chargee or other security holder not in the possession of the land within the area of the mining licence.
5.2The Grantee Party must not assign the mining licence unless and until the assignee executes and delivers to the Native Title Party a deed or agreement in writing expressed to be for the benefit of the Native Title Party by which that assignee undertakes to be bound by these conditions as if it were the Grantee Party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed or agreement must provide that the assignee undertakes:
(a)to be bound by these conditions as if it were the Grantee Party, if it or anyone on its behalf enters into possession of the land within the area of the mining licence; and
(b) not to transfer the mining licence under any power of sale unless the purchaser executes a deed or agreement in writing to the effect of that referred to in condition 5.2(a)
5.3Upon delivery to the Native Title Party of a deed or agreement in writing under this condition, the Native Title Party must execute a deed or agreement in writing for the benefit of the assignee under which the Native Title Party agrees to be bound by these conditions.
Information to be provided to the Native Title Party
6.1The Grantee Party will, as soon as practicable, provide the Native Title Party with 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) and the regulations made thereunder:
(a)Work Plan or Variation of Work Plan (Sections 40 and 41, Regulation 214, Schedule 14);
(b) Biannual Reports (Section 116, Regulation 217, Schedule 16);
(c) Plan of Mine (Section 47); and
(d)Information on the Mining Register submitted by the Grantee Party (Section 69 (2), Regulation 301, Schedule 22).
6.2The Grantee Party will, if requested by the Native Title Party, explain any aspects of the information provided under condition 6.1.
6.3All of the information provided to the Native Title Party under condition 6.1 will be kept confidential as between the Native Title Party and the Grantee Party except to the extent that any such information may be disclosed to another person, court, tribunal or other body if:
(a)agreed in writing between the Grantee Party and the Native Title Party; or
(b)required by law to be disclosed, in which case the Native Title Party will inform the Grantee Party that it has been required to make disclosure and to whom.
6.4Nothing in sub-condition 6.3 will preclude the Native Title Party from providing any of the information provided to it under condition 6.1 to its legal and financial advisers, provided that each of those legal and financial advisers agree in writing to treat that information as confidential as between themselves, the Native Title Party and the Grantee Party.
Notices
The requirements for any notice, request, consent, proposal or information required to be given under this Determination are as set out in Schedule 2.
Dispute Resolution
Before availing themselves of any remedies at law or in equity, the parties will meet and negotiate in good faith in an attempt to resolve any dispute that arises with respect to the conditions of this Determination.
Any negotiation process will take into account the Aboriginal law and custom of the Native Title Party to the extent that it is relevant to the resolution of the dispute, and any relevant cultural issues.
Confidentiality
To the extent permitted by law, the details of the plan in Schedule 1 to this Determination will remain confidential between the parties and the Tribunal.
Liability
Any liability imposed on the Grantee Party under this Determination shall be joint and several.
Interpretation
In this Determination:
(a)any reference to “the Grantee Party” is a reference to both Pacific Minerals Pty Ltd and ABC Resources Pty Ltd and their successors in law; and
(b)any reference to any 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.
Schedule 1
Cultural Heritage and Environmental Management Plan
Schedule 2
Notices, etc
Notices must be made in writing and addressed as follows:
Grantee Party
Pacific Minerals Pty Ltd and ABC Resources Pty Ltd
C/O PO Box 1486
Bairnsdale VIC 3875
Facsimile: (03) 9824 0601
Native Title Party
C/O Mirimbiak Nations Aboriginal Corporation
75-79 Chetwynd Street
North Melbourne VIC 3051
Facsimile: (03) 9326 4075
Government Party
The Minister for Energy and Resources
Department of Natural Resources and Environment
17th Floor, 8 Nicholson Street
East Melbourne Vic 3002
Facsimile: (03) 9637 8920.
A notice sent by mail will be deemed received by the party to whom it is addressed on the next business day following its posting. Notices transmitted by facsimile are deemed delivered on the day of transmission subject to confirmation of complete transmission.
Written notice of any change of address of a party must be given to the other parties as soon as possible.
Hon CJ Sumner
Deputy President
7 July 2000
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