Poz Minerals Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC
[2017] NNTTA 64
•12 October 2017
NATIONAL NATIVE TITLE TRIBUNAL
POZ Minerals Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC and Another [2017] NNTTA 64 (12 October 2017)
Application No: | WF2017/0010; WF2017/0011 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
POZ Minerals Ltd
(grantee party)
- and -
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/0009)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 12 October 2017 (Corrigendum dated 19 October 2017) |
CORRIGENDUM
Corrections to the Future Act Determination made on 12 October 2017 at page 1 on the basis that the grantee party name was listed incorrectly. The case citation is corrected to read ‘POZ Minerals Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC and Another [2017] NNTTA 64 (12 October 2017)’.The listed grantee party is corrected to read ‘POZ Minerals Ltd’.
Correction at page 2 on the basis that the name of the grantee party’s representative was listed incorrectly. The representative of the grantee party is corrected to read ‘Austwide Legal Pty Ltd’.
Correction at page 3: The first two sentences of Paragraph [1] to be replaced with the following three sentences ‘On 8 July 2016 the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the proposed grant of mining lease applications M04/466 and M04/467 to Phosphate Australia Limited. The company is commonly referred to throughout the papers in this inquiry as ‘POZ’ which is its Australian Stock Exchange reference. The company changed its name to POZ Minerals Ltd subsequent to the issuing of the s 29 notice, and the abbreviation ‘POZ’ has been adopted in this determination’.
Correction at page 7: Paragraph [21] corrected to read ‘The determination of the Tribunal is that the acts, being the grant of mining leases M04/466 and M04/467 to POZ Minerals Ltd, may be done’.
Helen Shurven
Member
19 October 2017
NATIONAL NATIVE TITLE TRIBUNAL
Phosphate Australia Ltd v Bunuba Dawangarri Aboriginal Corporation RNTBC and Another [2017] NNTTA 64 (12 October 2017)
Application No: | WF2017/0010; WF2017/0011 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Phosphate Australia Ltd
(grantee party)
- and -
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/0009)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 12 October 2017 |
Catchwords: | Native title – future act – application for determination for the grant of mining leases – s 39 criteria considered – determination that the act may be done |
Legislation: | Native Title Act 1993 (Cth), ss 38, 39, Mining Act 1978 (WA), s 85 Aboriginal Heritage Act 1972 (WA) |
Cases: | Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 |
| Representative of the grantee party: | Ms April French, Austwide Mining Title Management Pty Ltd |
| Representative of the native title party: | Mr Aidan Kelly, Wojtowicz Kelly Legal |
| Representatives of the Government party: | Mr Domhnall McCloskey, State Solicitors Office Mr Dennis Jacobs, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
On 8 July 2016 the State of Western Australia gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of the proposed grant of mining lease applications M04/466 and M04/467 to Phosphate Australia Limited. The company is commonly referred to throughout the papers in this inquiry as ‘POZ” which is its Australian Stock Exchange reference, and that abbreviation has been adopted in this determination. The leases are in the Shire of Derby West Kimberley, and are just over 352 and 462 hectares in size, respectively. The rights which would be conferred by the proposed leases are set out in s 85 of the Mining Act 1978 (WA) (‘Mining Act’). Both leases are to be part of a project related to diamond mining.
The Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate (‘BDAC’) hold native title rights and interests in the areas of the mining lease applications, and so have the procedural right to negotiate in relation to the granting of those leases (see s 30(1)(a) and s 31 of the Act).
Parties undertook negotiations but were unable to reach agreement of the kind specified in s 31(1)(b) of the Act.
On 19 June 2017, POZ made applications under s 35 of the Act, for the National Native Title Tribunal to make a future act determination under s 38 of the Act in relation to each of the proposed leases. I was appointed by the President of the Tribunal to conduct the inquiry into the applications.
No allegations of lack of good faith were made against POZ or the State by BDAC, and so I was able to proceed to issue directions requesting each of the parties to make submissions regarding the s 39 criteria outlined in the Act, which is the basis upon which I must make my decision in such future act determination applications. Parties attended at the preliminary conference and subsequently made submissions according to the programmed directions. At the listing hearing on 6 October 2017, BDAC’s representative indicated that it had made submissions in accordance with the directions as required by the inquiry process, but had now reached a point with POZ where they were happy to withdraw their submissions in their entirety, on the understanding that I would be proceeding to determine these matters.
Relevant issues
In relation to the act of the grant of each mining lease, I must determine whether the act must not be done, or that the act may be done, or that the act may be done subject to conditions (see s 38 of the Act). Even though BDAC has withdrawn its submissions, I must assess the evidence provided by any other party in terms of the criteria in s 39 of the Act (see Western Australia v Thomas at 165-166). I outline my consideration of that material below, using the same structure as provided by parties, where some criteria are considered together. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to each criterion will depend on the evidence. I must also take all reasonable steps to make a determination as soon as practicable (see s 36 and s 37 of the Act).
Assessing the s 39 criteria
Section 39(1)(a)(i) and 39(2)- enjoyment of registered native title rights and interests
Section 39(1)(a)(ii)– way of life, culture and traditions of BDAC
Section 39(1)(a)(iii)– development of social, cultural and economic structures of BDAC
Section 39(1)(a)(iv)– freedom of access and freedom to carry our rites and ceremonies
POZ indicated that the inferred interests in respect to the matters raised in these criteria were considered in the course of negotiations and consultations, and BDAC have indicated they are sufficiently satisfied with their negotiations that they are withdrawing their materials from this inquiry. POZ argued that factors such as the interests, rights, ceremonies, social, cultural or economic structures of BDAC would not be significantly interfered with or affected by mining activities of POZ, as those activities will be conducted in accordance with best industry practice and as per the Aboriginal Heritage Act.
POZ also argued that the areas of the leases had been subject to previous mining tenure and so any interference by POZ would likely be equivalent to previous interference. POZ have provided a great deal of information in relation to these arguments, which suggests extensive exploration or mining activity has occurred over the relevant areas.
In the absence of evidence concerning the BDAC’s enjoyment of its native title rights and interests and in light of the previous disturbance to the area and the terms agreed by the parties, I am satisfied the grant of the proposed leases will not have a significant adverse effect on the matters in paragraphs 39(1)(a)(i) to (iv).
Section 39(1)(a)(v) – effect on areas or sites of particular significance
POZ contend there would be no interference with areas or sites of particular significance to BDAC. They provided information and evidence that there are no Aboriginal sites on the leases, as recorded on State registers, and also provided information about previous ethnographic and/or archaeological surveys which had been conducted over the areas.
POZ outlined its awareness of the Aboriginal Heritage Act and understood that the scope of that Act was wider than sites recorded on State registers. POZ also outlined its experience in working co-operatively with Aboriginal groups and its intention to continue to do so with BDAC.
I am satisfied that exploration activities of POZ would not affect areas or sites of particular significance to BDAC.
Section 39(1)(b) – interests, proposals, opinions or wishes of BDAC
POZ provided a great deal of email and other correspondence between it and BDAC, which was generated over the course of their negotiations. Parties had attended meetings in Fitzroy Crossing and Perth in order to meet and engage with each other. I note BDAC does not oppose the grant of the leases.
There is no evidence to the contrary from BDAC, and I have no reason to conclude the interests, proposals, opinions and wishes of BDAC have not been considered.
Section 39(1)(c) – economic or other significance
POZ presented information about offers made to the BDAC community, including employment opportunities and royalty payments. POZ also provided reports and materials in relation to the project and its significance more broadly in the local community.
I am satisfied the project as proposed to be developed on these two leases and surrounds will have economic and other significance for the local Aboriginal community, as well as the State of Western Australia, and possibly also nationally.
Section 39(1)(e) – public interest
Section 39(1)(e) is a broader provision than s 39(1)(d) and requires me to take into account both the public interest in the protection of native title rights and interests and also evidence of the public interest in the act being done (Re Koara People at 98). POZ argues the project will attract investment to the State, and there is no material before me to suggest the grant of the proposed leases would be contrary to the public interest. POZ states they will deal with the minerals as the State envisages under the Mining Act and argues the project will create jobs for the community, particularly in the Fitzroy Crossing area in a shrinking employment environment.
In weighing up the public interest, I have considered whether the development of this mining project should be encouraged and facilitated, and whether that project would be to the detriment of any native title rights or interests. I accept there is likely to be economic and social benefit to the public in the grant of these two leases and the development of the proposed project by POZ.
Section 39(1)(f) – any other relevant matter
POZ provides significant information relating to past exploration on the proposed grant areas. This has already been dealt with at [7]-[8] above so I do not propose to consider that information further under this criterion.
Conclusion
After taking into account the effect of the proposed acts on the matters set out in s 39(1), as outlined in this decision, I conclude the acts may be done.
Determination
The determination of the Tribunal is that the acts, being the grant of mining leases M04/466 and M04/467 to Phosphate Australia Limited, may be done.
Helen Shurven
Member
12 October 2017
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