Pilbara Stone Pty Ltd/ Angelina Cox & Others on behalf of Puutu Kunti Kurrama & Pinikura 2 / Western Australia

[2013] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Pilbara Stone Pty Ltd/ Angelina Cox & Others on behalf of Puutu Kunti Kurrama & Pinikura 2 / Western Australia, [2013] NNTTA 22 (22 February 2013)

Application No:              WF2012/0024

IN THE MATTER of the Native Title Act1993 (Cth)

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

Pilbara Stone Pty Ltd (grantee party/applicant)

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Angelina Cox & Others on behalf of Puutu Kunti Kurrama & Pinikura 2 (WC2005/004) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:  Helen Shurven, Member
Place:  Perth
Hearing Date:                  On the papers
Date of Determination:   22 February 2013

Catchwords:  Native title – future act – application for determination of grant of a mining licence – inquiry commenced – parties withdrew inquiry submissions – parties requested that the act may be done – agreement relevant to determination reached in concurrent  mediation – determination that the act may be done.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 38, 39

Mining Act 1978 (WA) ss, 24, 25, 63

Cases:Mark Albury & Ors (Karingbal #2)/OME Resources Australia Pty Ltd/Queensland [2013] NNTTA 13

Pilbara Stone Pty Ltd/ Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/ Western Australia [2012] NNTTA 114

Queensland Gas Company Limited & Ors/Iman People #2;Mandandanji People/Queensland, NNTT QF10/15–22 [2010] NNTTA 210

Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82

Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30

WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372

Representatives for         Ms Catherine McLeish, Yamatji Marlpa Aboriginal Corporation

the native title party:      Mr Rainer Matthews, Samphire Legal Pty Ltd

Representatives for         Mr Ken Green, Green Legal Pty Ltd

the grantee party:           

Representatives for         Mr Brendyn Nelson, State Solicitor’s Office

the Government party    Mr Clyde Lannan, Department of Mines and Petroleum

Background

1. On 29 June 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the grant of mining lease M08/477 (the ‘proposed tenement’/‘proposed licence’) under the Mining Act 1978 (WA), to Pilbara Stone Pty Ltd (the ‘grantee party’).

2. The proposed tenement comprises 3.3699 square kilometres, located 133 kilometres south west of Pannawonica in the Shire of Ashburton, and is completely overlapped by the Puutu Kunti Kurrama and Pinikura 2 native title claim (WC05/4), registered from 15 August 2006 (the ‘native title party’).

3. On 13 August 2012, being a date more than six months after the s 29 notice was given, the grantee party made a future act determination application pursuant to s 35 of the NTA (the ‘s 35 application’).

4. On 14 August 2012, I was appointed as Member to constitute the Tribunal for the purpose of conducting an inquiry into the s 35 application.

5. The inquiry proceeded, and the section of this determination titled ‘History of the Inquiry Process’ contains a summary of what occurred during that process.  The week before a determination in this matter was due to be issued, parties advised the Tribunal that they wished to re-commence the mediation process through the Tribunal, with a view to reaching agreement.  This approach had been encouraged by commentary contained in the good faith decision (Pilbara Stone Pty Ltd/ Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/ Western Australia [2012] NNTTA 114), and as such I indicated that I would delay issuing the determination for a further week, pending the outcome of the mediation process, as I consider it is usually preferable for parties to reach agreement between themselves wherever possible, rather than have a decision imposed on them.

6. Member O’Dea undertook mediation with the parties on Friday 8 and Friday 15 February 2013.  I was then requested by parties to hold a further listing hearing to discuss the outcome of the mediation with a view to issuing a consent determination.  The listing hearing took place on Monday 18 February 2013.

7. At the listing hearing, parties outlined some of the outcomes from the mediation, including that they had reached agreement concerning various matters which the Tribunal is required to take into account for the purpose of this determination.  Parties were provided some additional time to provide written submissions for my consideration.  Submissions titled Joint Submission and Advice of s 39(4) NTA Agreement by Parties for Determination Under Section 38 of the Native Title Act 1993 (Cth) in Relation to the Grant Under the Mining Act 1978 (WA) of M08/477, were provided on 21 February 2013.   These are dealt with below in the section ‘Parties’ Further and Joint Submissions’.

History of the Inquiry Process for M08/477

1. On 20 August 2012, parties were notified of the s 35 application via email and advised that a preliminary conference would be held for the purpose of settling matters for an inquiry into the s 35 application.

2. On 24 August 2012, a preliminary conference was held at which the native title party representative contended that the grantee party had not fulfilled the obligation to negotiate in good faith, as mentioned in s 31(1)(b) of the Act. An inquiry into the Tribunal’s jurisdiction to make a determination was subsequently undertaken pursuant to s 36(2) of the Act.

3. The Tribunal notified parties on 30 October 2012 that the decision was that the grantee party negotiated in good faith with the native title party in relation to the proposed tenement M08/477. Parties were advised that full reasons would be published in the week of 5 November 2012.

4. On 6 November 2012, the Tribunal published its decision Pilbara Stone Pty Ltd/ Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/ Western Australia [2012] NNTTA 114 that the grantee party had negotiated in good faith with the native title party in relation to the proposed tenement, and consequently I have jurisdiction to determine the future act determination application. The Tribunal then undertook the inquiry into that application, simultaneously with consideration of a request made by the native title party to re-open the issue of good faith.

5. Directions issued on 24 October 2012 stated that: the grantee and Government parties provide contentions and evidence in the substantive inquiry matter by 12 November 2012; the native title party contentions and evidence be provided by 7 December 2012; by 12 December 2012 parties inspect the documents and confer with a view to agreeing on the issues before the inquiry; on 14 December 2012 a listing hearing would be held; and a full hearing, should it be required, would be held on 18 December 2012.

6. The grantee and Government party complied by 12 November 2012. The native title party sought and was granted an extension from 7 until 10 December 2012 due to difficulties in accessing witnesses for affidavits. Documents were received on 10 December 2012 with part documents also received on 14 December 2012 due to technical difficulties caused by the size of the annexures to the material sent and received on 10 December 2012.  It was in these submissions that the native title party raised the issue which sought to re-open the negotiation in good faith issue. The native title party also proposed some conditions which in their view, should be applied, if the matter proceeded through the inquiry process.

7. The listing hearing was held on 17 December 2012 to allow for the slight delay in receipt of native title party contentions and evidence. At the listing hearing, the grantee party indicated their view that there was no substance to the allegations made by the native title party regarding the basis for re-opening the good faith issue. Both the grantee party and the Government party sought leave to comment on the conditions proposed by the native title party, which was granted. Directions were made that:

• The Government party may file a reply to the native title party’s proposed conditions by 21 December 2012.

• The grantee party may file a reply to the native title party‘s proposed conditions and in relation to the fresh negotiation in good faith issue by 21 December 2012; and

• The native title party may file a reply to these submissions from the Government party and grantee party and advise whether it agreed to the matter being determined on the papers, by 28 December 2012.

1. At the listing hearing, the grantee party and Government party agreed that they accepted the Government party’s more extensive version of conditions and endorsements to be considered for application on the tenement, should conditions be required. In addition, the Government party provided all parties with an updated quick appraisal showing a pastoral lease not indicated on the original quick appraisal provided, but which pastoral lease was mentioned in the Government party contentions.  The pastoral lease (Pt Nanutarra) totally overlaps the proposed licence.  In addition, the quick appraisal shows services affected as Wadrah Bore.  Tribunal mapping, provided to all parties on 29 January 2013, did not show any recorded Aboriginal sites on the proposed tenement, although some were near the tenement.

1. The Government party provided contentions in reply to the native title party’s proposed conditions on 21 December 2012. The grantee party provided their statement of contentions in reply to the native title party’s proposed conditions on 21 December 2012 and sought leave to address the re-opening of the good faith point within a short time thereafter, to which leave was granted, and those good faith submissions were provided on 24 December 2012.

1. The native title party contentions in reply were received on 31 December 2012. They did not address whether or not the native title party sought a hearing in this matter.

1. I was of the view that the matter could be heard on the papers, including the issue of the re-opening of the good faith issue, with no further submissions required from parties, which was conveyed to parties by email from the Tribunal on 10 January 2013. 

2. As stated above, parties have now withdrawn their submissions, including those in relation to re-opening good faith.  As such, I do not intend to go into either of those submissions in any detail.  However, I do provide some general comments in relation to these points below, in the section ‘Inquiry Submissions’, below.

Inquiry Submissions

Re-opening of the good faith issue

1. Deputy President (DP) Sumner noted in Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82 (9 July 2003) (‘Townson Holdings’) at [13] that ‘there is nothing in the Act that suggests any statutory time limit on when a jurisdictional issue can be raised under s 36(2) of the Act’. He went on to say at [14], that:

   the nature of the challenge... is... one of jurisdiction or whether the Tribunal has power to conduct an inquiry and make a determination. The principles in relation to the Tribunal’s obligations in such a case have been spelled out previously (see discussion and cases cited in Anaconda Nickel Ltd & Ors v Western Australia [2000] NNTTA 36; (2000) 165 FLR 116 at [21]- [69]). Where the Tribunal’s jurisdiction is challenged, it has a duty to make due inquiry and satisfy itself on the issue. What constitutes due inquiry may be cursory or extensive depending on the nature of the challenge and the circumstances of the case (Mineralogy Pty Ltd vNational Native Title Tribunal & Others (1997) 150 ALR 467 at p 473).

2. In the present matter, the good faith decision has already been made, as outlined at [11] above. It was on 10 December 2012, some four weeks after the good faith determination, that the native title party submitted the good faith issue should be re-opened, due to new information which it had recently received (as outlined at [10]-[11] above). Even though the good faith decision had been made, the substantive inquiry had not been concluded.

3. Accordingly, I needed to determine whether the good faith issue was still on foot, as good faith negotiation is a pre-condition to the Tribunal continuing on to determine the substantive issues.  If the decision, based on the new information and parties submissions relating to that new information, was that parties did not negotiate in good faith, then I had no power to consider the matter further.  As DP Sumner indicated in Townson Holdings, the inquiry into this jurisdictional issue may be ‘cursory’ or ‘extensive’ – in this current matter, the issue raised was on one specific point, relating to some information which came to light after the good faith decision and so it was that I turned to in order to be satisfied on the issue, rather than conducting a wide ranging inquiry.

4. As it turned out, those considerations were not required as the issue was withdrawn by the native title party.  As such, I do not intend to canvass further the re-opening of the good faith issue further in this determination.

Conditions to be imposed

1. Parties have now withdrawn their original submissions in relation to the inquiry and any conditions to be imposed.  As such, I do not intend to outline them in any detail here, save to say that initially, the native title party’s contentions were that it preferred ‘a determination that the proposed act not be done’ but in the alternative, if the act may be done, then it sought to have ‘the act be done subject to conditions’ (at paragraph 2 of the 10 December 2012 contentions).   

2. The native title party submitted two statements from members of the native title claim group, in support of those contentions.  It is the usual practice of the Tribunal to reproduce, verbatim, affidavits or statements in support of contentions, however, as the contentions have now been withdrawn, I do not intend to reproduce those statements here in this matter. The native title party also proposed a number of conditions which they submitted should be imposed on the grant of the proposed licence, should that be the determination of the Tribunal.  However, once again, as those submissions have now been withdrawn, I do not intend to reproduce those conditions here, or the submissions made for and against those submissions by each party.  

Section 39 criteria

1. On 12 November 2012, the Government party filed a statement of contentions in relation to s 39 criteria.  The grantee party filed contentions relating to s 39 criteria and the inquiry, dated 12 November 2012 and 21 December 2012.  As these have now been withdrawn, I do not intend to reproduce them here.

Parties’ Further and Joint Submissions

1. The grantee party, Government party and native title party signed and lodged a Joint Submission and Advice of s 39(4) NTA Agreement by Parties for Determination Under Section 38 of the Native Title Act 1993 (Cth) in Relation to the Grant Under the Mining Act 1978 (WA) Of M08/477 on 21 February 2013.  Those submissions include the following:

   MATTERS RELEVANT TO POWER

   6. Each Party agrees that the Government Party has complied with the requirements of s.31(1) of the NTA.

   7. Each Party agrees that the Government Party, the Native Title Party, and the Grantee Party have each complied with the requirements of s.31(1)(b) of the NTA.

   MATTERS RELEVANT TO DETERMINATION

   8. Each Party agrees, including by reason of the agreements referred to in paragraph 5, that the grant of the Tenement will not have any significant or material impact on the matters set out in s39(1) NTA (“S39(4) Agreement”).

   9. Each Party consents to the Tribunal taking the S39(4) Agreement into account for the purpose of the Determination.

   WITHDRAWAL OF PRIOR SUBMISSIONS

   10. In light of the above, each Party (with the consent of the other Parties) withdraws any submission which is inconsistent with the agreements set out above.

   11. The Native Title Party further informs the Tribunal that its interests, proposals, opinions or wishes concerning the proposed grant of the Tenement are addressed by the agreements referred to in paragraph 5 above and further that it expresses to the Tribunal no interest, proposal, opinion or wish concerning the proposed grant of the Tenement other than as expressed in this Joint Submission and Advice.

   JOINT SUBMISSION

   12. The Parties jointly submit that the Tribunal should determine that the ‘future act’, namely the proposed grant of the Tenement, may be done pursuant to s38(1)(b) NTA.

Legal principles

1. In the usual course of events relating to such an inquiry, I would rely on the principles enunciated in Tribunal future act determinations such as:

   ·Western Australia v Thomas and Others (1996) 133 FLR 124 (Waljen), particularly at 162-163 and 165-166; and

   ·WMC Resources v Evans (1999) 163 FLR 333 (WMC/Evans), particularly at 340-341.

2. However, this matter has not followed the usual course, and so I instead turn to the Act, and the relevant sections 31, 38 and 39, to assist.

   31 Normal negotiation procedure

   (1) Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:

   (a) the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
   (b) the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

   (i) the doing of the act; or

   (ii) the doing of the act subject to conditions to be complied with by any of the parties.

   ....

   Arbitral body to assist in negotiations
   (3) If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

   Information obtained in providing assistance not to be used or disclosed in other contexts
   (4) If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

   (a) providing that assistance; or
   (b) establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

   without the prior consent of the person who provided the NNTT with the information.

1. Parties in this matter requested and undertook Tribunal mediation, as they are entitled to do under s 31(3) of the Act, and reached agreement concerning various matters which the Tribunal is required to take into account for the purpose of the determination. They provided me with some information about what occurred during the mediation process, as they are entitled to do under s 31(4) of the Act, and in their final written submissions, they all agreed they had ‘each complied with the requirements of s 31(1)(b)’ of the Act.

2. The s 35 future act determination application remains on foot, and so I turn to s 38 of the Act in relation to what type of determinations can be made.

38 Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:

1.a determination that the act must not be done;

2.a determination that the act may be done;

3.a determination that the act may be done subject to conditions to be complied with by any of the parties.

...

1. Section 39 lists the criteria for making such a determination. Initially, the inquiry process required the Tribunal to make a determination which involved the exercising of discretionary power by reference to the criteria in s 39. The Tribunal’s task in this respect was explained in Waljen (at 165-166).

   We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us.  The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.

   The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.

   The Act does not direct that greater weight be given to some criteria over others.  The weight to be given to them will depend on the evidence.

1. However, parties’ final submissions indicate that they agree ‘the grant of the Tenement will not have any significant or material impact on the matters set out in s 39(1)’ of the Act. In view of that agreement, I need not turn to each of the criteria listed in s 39 of the Act. Instead, I turn to s 38 and the type of determination which is now open to me.

2. In that respect, Deputy President Sosso offers some guidance in his decision of Queensland Gas Company Limited & Ors/Iman People #2;Mandandanji People/Queensland, NNTT QF10/15–22, [2010] NNTTA 210. While the facts of that matter were different to the present case, DP Sosso made relevant comments in relation to the general process of future act determinations (at [54]-[55]) that:

   Subsection 39(4) ... specifically requires the Tribunal to ascertain whether there are relevant issues on which the negotiation parties agree, before making a determination. If there are and the parties consent, then in making its determination the Tribunal must take that agreement into account and need not take into account the s.39(1) criteria, to the extent that they relate to those issues.

   In this matter there is broad agreement on the form of determination that the Tribunal should make. Although as previously stated, there is not a basis for making a consent determination, nonetheless the unanimity of opinion amongst the legal representatives of the parties is a matter that I have taken into account, particularly having regard to the operation of s.39(4).

In the current matter, parties have reached agreement on various matters which the Tribunal is required to take into account, including that ‘the grant of the Tenement will not have any significant or material impact on the matters set out in s 39(1)’ of the Act.

1. I look also to the President’s recent decision  Mark Albury & Ors (Karingbal #2)/OME Resources Australia Pty Ltd/Queensland, [2013] NNTTA 13 (11 February 2013), which stated, at [27] that the relevant sections of the Act:

   demonstrate a clear legislative preference for negotiation parties to reach agreement about the doing of a proposed future act (or at least some relevant issues) and operate to inhibit the exercise of the Tribunal’s discretionary powers to make a determination by directing the Tribunal to take into account any agreement on relevant issues.

1. As such, the decision which is open to me, and which has been requested by parties in their final submissions, is that the future act may be done, pursuant to s 38(1)(b) of the Act.

Conclusion

1. The task of the Tribunal in an inquiry such as this is usually to thoroughly analyse the evidence and submissions before it in relation to the criteria set out in s 39 of the NTA. The Tribunal may also refer to evidence in any other proceedings before the Tribunal (s 146). The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms, or the rules of evidence (s 109(3) of the NTA). It must also be fair, just, economical, informal and prompt (s 109(1) of the NTA), and it may take into account the cultural and customary concerns of Aboriginal Torres Strait Islanders, but not so as to prejudice unduly any party to the proceedings (s 109(2) of the NTA).

2. In this matter, parties have turned their minds to reaching agreement concerning various matters which the Tribunal is required to take into account for the purpose of this determination.  This is likely to provide them with a more tailor made outcome to suit their needs than any which could be provided by an arbitral decision being imposed on them.

Determination

1. The determination of the Tribunal is that the act, being the grant of mining lease M08/477 to Pilbara Stone Pty Ltd, may be done.

Helen Shurven
Member
22 February 2013