PVW Exploration Pty Ltd v Tjurabalan Native Title Land Aboriginal Corporation RNTBC
[2021] NNTTA 53
•29 September 2021
NATIONAL NATIVE TITLE TRIBUNAL
PVW Exploration Pty Ltd v Tjurabalan Native Title Land Aboriginal Corporation RNTBC [2021] NNTTA 53 (29 September 2021)
Application No: | WF2021/0005 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Tjurabalan Native Title Land Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
PVW Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 29 September 2021 |
Catchwords: | Native title – future act – s 35 application for determination – exploration licence application – s 39 criteria considered – effect on native title rights and interests – effect of act on way of life, culture and traditions – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done |
Legislation: | Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 30(3), 31(1)(b), 35, 37, 38, 39 |
Cases: | Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Ngalpil v State of Western Australia [2001] FCA 1140 (‘Tjurabalan Determination’) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 105 (‘Tjurabalan v PVW’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title party: | Andrew Topfer, Kimberley Land Council Aboriginal Corporation |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Dennis Jacobs, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
In 2018, PVW Exploration Pty Ltd (PVW) (then called PVW Resources NL) made an application under the Mining Act 1978 (WA) (Mining Act) for the grant of exploration licence E80/5190 (licence).
The licence is located in the north of Western Australia, very close to the Northern Territory border. Tjurabalan Native Title Land Aboriginal Corporation RNTBC (Tjurabalan) holds native title in trust for the Tjurabalan People in relation to the whole of the licence area (see Tjurabalan Determination).
The State of Western Australia (State), acting through the Department of Mines, Industry Regulation and Safety (DMIRS), gave notice of the proposed grant of the licence in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA). The notice specified a notification day of 11 May 2018 and included a statement that DMIRS considered the expedited procedure under the NTA applied to the grant of the licence.
Tjurabalan lodged an objection against the expedited procedure statement and the Tribunal subsequently determined in Tjurabalan v PVW that the expedited procedure did not apply to the grant of the licence. Accordingly, the negotiation parties, being the State, PVW and Tjurabalan, were required to negotiate in good faith with a view to obtaining Tjurabalan’s agreement to the grant of the licence (s 31(1)(b) NTA).
The parties have so negotiated. However, as will be further explained, the parties have not executed an agreement under s 31(1)(b) of the NTA. PVW has therefore applied to the Tribunal for a determination that the licence may be granted.
PVW’s application is unopposed and, having reviewed the material and considered the matters in s 39 of the NTA, I have determined that the licence may be granted.
The Tribunal proceedings
On 17 June 2021 (being, as required, at least six months after the notification day), PVW lodged a future act determination application under s 35 of the NTA, for a determination under s 38 of the NTA.
The application was accepted by the Tribunal on 22 June 2021 and the President of the Tribunal directed me to constitute the Tribunal for the purpose of holding an inquiry into the application.
I must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made (s 37 NTA). In its application PVW states that on or around 11 November 2020, PVW and Tjurabalan reached agreement on the terms of an ancillary agreement. However, the terms of a deed in compliance with s 31(1)(b) of the NTA could not be agreed as between Tjurabalan and the State. Consequently, the parties have not entered into an agreement of the kind mentioned in s 31(1)(b).
All parties attended a preliminary conference before me on 6 July 2021 and confirmed the circumstances set out at [9]. Tjurabalan also advised that it does not take any issue with the good faith negotiation of the State or PVW. I then made directions for the conduct of the inquiry taking into account that the application is unopposed.
Also on 6 July 2021, the State provided the following information with respect to the licence:
(a)Quick Appraisal detailing key information about the licence;
(b)Mining Tenement Register Search;
(c)copy of the licence application together with an accompanying map and statement under s 58 of the Mining Act;
(d)topographical map;
(e)tenure spreadsheet;
(f)searches of the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches); and
(g)proposed endorsements and conditions to be imposed on the grant of the licence, being the ‘Draft Tenement Endorsement and Conditions Extract’ in Annexure 1.
The directions invited any of the parties (whether jointly or separately) to provide a statement in relation to matters relevant to my determination, including the matters set out in s 39 of the NTA.
The parties had initially foreshadowed making a joint statement. However, in the event:
(a)Tjurabalan provided contentions on 25 August 2021; and
(b)the State and PVW provided joint contentions on 26 August 2021.
Issues for determination
Under s 38 of the NTA, I am required to make one of the following determinations:
(a)that the grant of the licence must not be done;
(b)that the grant of the licence may be done; or
(c)that the grant of the licence may be done, subject to conditions to be complied with by any of the parties.
The matters that I must take into account in making a determination are those set out in s 39(1) of the NTA. The NTA does not specify the weight to be afforded to each matter listed in s 39 – that will depend on the evidence (see Western Australia v Thomas at 166).
Under s 39(4), I must take into account any relevant issues upon which the parties agree. Further, if all parties consent, I need not take into account the matters mentioned in s 39 to the extent they relate to agreed issues. In this case there are no matters in that category and I have considered each of the matters in s 39 as set out below.
Details about the licence and licence area
The licence is an exploration licence and would be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence.
According to the Quick Appraisal provided by the State, the size of the licence is 2575.67 hectares and the underlying land tenure is Unallocated Crown Land.
In its s 58 statement, PVW states that the licence is located approximately 220 kilometres south-east of the town of Halls Creek and will form part of its Tanami West Project. The target mineral is gold. The proposed work program for year one is estimated at $22,000 and for year two, $25,000.
The AHIS searches provided by the State do not disclose any registered Aboriginal site or Other Heritage Places in the licence area.
Consideration of section 39 criteria
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
Effect on any area or site of particular significance: s 39(1)(a)(v)
Interests, proposals, opinions or wishes of Tjurabalan in relation to the management, use or control of land or waters affected by the licence: s 39(1)(b)
Section 39(1)(a)(i) relates to the effect of the grant of the licence on Tjurabalan’s enjoyment of its registered native title rights and interests. In this case, the registered native title rights and interests are those described in the entry for the Tjurabalan Determination on the Native Title Register under the NTA (s 30(3) NTA).
Tjurabalan holds exclusive native title rights and interests in relation to the licence area and there are no relevant non-native title rights and interests in the area nor any evidence of use by other persons (s 39(2) NTA).
There is also no evidence provided in this matter regarding the extent to which Tjurabalan People enjoy the registered native title rights and interests in relation to the licence area nor any specific evidence in relation to the matters listed in ss 39(1)(a)(ii) and (iii).
However, in Tjurabalan v PVW at [39]–[40], the Tribunal accepted that Tjurabalan undertook community and social activities in the licence area and, in particular, found that the grant of the licence was likely to cause direct and substantial interference with intergenerational teaching activities at Killi Killi Hills in the licence area. Similarly in relation to s 39(1)(a)(v), the Tribunal found at [80] that there were a number of areas or sites of particular significance to Tjurabalan in the licence area.
Tjurabalan and PVW both state that they have reached agreement regarding the grant of the licence and addressed the effect of the grant on each of the matters in ss 39(1)(a) and (b) to their mutual satisfaction. The State agrees that I can take that statement into account, which I have done.
Both PVW and Tjurabalan also state that Tjurabalan’s interests, proposals, opinions and wishes as relevant to s 39(1)(b) have been taken into account by PVW and addressed in their agreement.
The fact that Tjurabalan and PVW have addressed the effect of the licence on these matters to their mutual satisfaction and that consequently Tjurabalan does not oppose the grant, weighs in its favour.
Economic or other significance of the licence: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the licence to Australia, the State, the area in which the licence is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the licence, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175-176).
The Tribunal has often found the grant of mining tenements will be of economic benefit to the State, as well as local or regional areas.
PVW submits that the grant of the licence is of economic significance to Australia, the State of Western Australia, the area in which the licence is located and the Aboriginal people who live in that area. The State says that it relies on the statement by PVW, and agrees to me taking it into account. Tjurabalan does not make any contention in relation to this criterion.
There is no specific evidence regarding any of the potential benefits arising from the grant of the licence. The material does show that rent is payable to the State and the activities outlined in the work program may generate contracting and employment locally. It is also possible that benefits may also flow to Tjurabalan through its ancillary agreement with PVW, although there is no evidence or contention from any party on that point.
While the licence is an exploration tenement, not a mining lease, it forms part of the broader Tanami West Project. Overall, on the material before me, there is little to be gleaned regarding the economic or other benefit arising from the licence but I can accept it may be of at least some benefit to the local region, even if the wider State and national benefits are limited.
Public interest in the grant of the licence: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the licence. This expression has been described as importing a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation (see discussion in Minister for Lands v Thalanyji at [266]). There can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations (Western Australia v Thomas at 176).
PVW submits that the public interest supports the grant of the licence. The State does not expressly agree with that proposition but again says that it relies on the statement by PVW, and agrees to me taking it into account. Tjurabalan’s contentions do not address the public interest.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (Western Australia vThomas at 176). In that context, I am satisfied there is public interest in the grant of the licence in this case.
Any other matter the Tribunal considers relevant: s 39(1)(f)
There are no other matters that I consider relevant to my determination in this matter.
Should the licence be granted and, if so, should conditions be applied?
Having regard to my consideration of the matters in s 39, I am satisfied that the licence may be granted.
Annexure 1 shows the conditions and endorsements which the State proposes to impose on the grant of the licence and I have taken those conditions and endorsements into account in making my decision.
No other condition is proposed by any party and I do not consider it is necessary to make my determination subject to any conditions to be complied with by any party.
Determination
I determine that the grant of exploration licence E80/5190 may be done.
Ms Nerida Cooley
Member
29 September 2021
annexure 1
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