Raz Resources Pty Ltd v Malarngowem Aboriginal Corporation RNTBC
[2023] NNTTA 33
•4 October 2023
NATIONAL NATIVE TITLE TRIBUNAL
Raz Resources Pty Ltd & Anor v Malarngowem Aboriginal Corporation RNTBC & Anor [2023] NNTTA 33 (4 October 2023)
Application(s) No: | WF2023/0009; WF2023/0010 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Raz Resources Pty Ltd
(grantee party)
- and -
Malarngowem Aboriginal Corporation RNTBC (WCD2019/005)
(MAC)
- and –
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(YAC)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 4 October 2023 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of exploration licenses – negotiating parties unable to formalise s 31(1)(b) agreement – s 39(4) – ancillary agreement taken into account – proposed excision upon grant |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 37, 38, 39, 142, 151 Mining Act 1978 (WA) s 58 |
Cases: | Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 (Blue Ribbon Mines v Roy Hill Infrastructure) Derrick Smith & Ors on behalf of Gnaala Karla Booja v Ransberg Pty Ltd and Another [2017] NNTTA 69 (Gnaala Karla Booja v Ransberg) John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 (John v Western Australia) Muccan Minerals Pty Ltd and Another v Allen and Others on behalf of Njamal [2018] NNTTA 24 (Muccan Minerals v Njamal) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Purdie v Western Australia) Shirley Purdie & Others on behalf of Yurriyangem Taam v Raz Resources Pty Ltd [2020] NNTTA 50 (Yurriyangem Taam v Raz Resources) |
Representative of MAC: | Miranda Clark and Emma Cahill, Kimberley Land Council |
Representative of YAC: | Scott Howieson, Kimberley Land Council |
| Representative of the grantee party: | Brett Anderson, Anderson’s Tenement Management |
| Representatives of the Government party: | Dennis Jacobs, Department of Mines, Industry Regulation and Safety; Ellise O’Sullivan, Anthony Civiello, and Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
This decision concerns whether the State of Western Australia (State) may grant licences E80/5416 and E80/5490 (the licences) to Raz Resources Pty Ltd (Raz Resources).
E80/5416 is located approximately 118 km south-west of Kununurra, and comprises an area of approximately 49 sq km. E80/5490 is located approximately 123 km south-west of Kununurra, and comprises an area of approximately 29 sq km.
YAC holds native title on trust for the Yurriyangem Taam People, as determined in Purdie v Western Australia (YAC determination). The YAC determination of exclusive native title overlaps approximately 20.27% of E80/5416 and 100% of E80/5490.
MAC holds native title on trust for the Malarngowem People, as determined in John v Western Australia (MAC determination). The MAC determination of non-exclusive native title overlaps approximately 0.02% of E80/5416 and does not overlap E80/5490 at all. Accordingly, MAC’s standing in relation to this inquiry only relates to E80/5416.
In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act) the State gave notice of its intention to grant the licences, specifying a ‘notification day’ of 6 November 2019 for E80/5416 and 13 January 2021 for E80/5490. The notices included a statement that the State considered the proposed grant of the licenses were future acts attracting the expedited procedure.
On 16 June 2020, the National Native Title Tribunal (Tribunal) determined the grant of E80/5416 was not an act attracting the expedited procedure.[1] On 4 November 2021, the State withdrew the expedited procedure statement in relation to E80/5490.[2]
[1] See Yurriyangem Taam v Raz Resources.
[2] See WO2021/0974.
Following these events, the State, Raz Resources, YAC, and MAC (the negotiation parties) were required to negotiate with each of the relevant native title parties. For E80/5416 this meant negotiating in good faith with a view to obtaining the agreement of both YAC and MAC, whereas for E80/5490 YAC was the only relevant native title party.[3] As the overlap with MAC related to a very small portion (0.02%) of only one of the tenements (E80/5416), the negotiations between the negotiation parties have primarily involved YAC.
[3] Section 31(1)(b).
The Act provides that if, after six months, the negotiation parties have been unable to reach agreement, any of the parties may apply to the Tribunal for a determination of whether the act of granting the licences may be done.[4]
[4] Section 35.
On 27 March 2023, being at least six months after the notification days, Raz Resources lodged future act determination applications relating to the licences (applications) which provided:
The effect of the grants of Exploration Licences 80/5416 and 80/5490 on native title is that the grants of the exploration licences will not extinguish native title. Any impact on native title will be minimised by the Grantee Party abiding by the Agreement that has been executed between themselves and the Native Title Party.
…
The applicant does not intend to submit any evidence to show the effect of the act on the area of land as they have reached an agreement and will be relying on the terms and conditions of the agreement. The Native title determination representative has provided an email on the 11 Jan 2022 confirming that the Native Title Party would not oppose a Future Act Determination lodged by the grantee party.
I understand from the material that where Raz Resources refers to the native title party in its application to the Tribunal it is referring to YAC only.
On 5 April 2023, the President of the Tribunal appointed me to constitute the Tribunal for the purposes of considering the applications.
Procedural history
Section 36(2) of the Act prohibits the Tribunal from making a determination where there has been a failure to negotiate in good faith. All parties attended a preliminary conference before me on 1 May 2023, at which I issued directions for the conduct of the inquiry. During the conference, the parties stated that the terms of an agreement had been reached between YAC and Raz Resources, but an agreement between all negotiation parties had not been reached as required under s 31(1)(b) of the Act. All parties confirmed that the applications were unopposed and that there were no allegations of a failure to negotiate in good faith being raised by any party. The State confirmed at the conference, and via email following the conference on the same day, that it intended to ‘excise the Malarngowem WC1999/044 portion of Graticule Halls creek block 677G belonging to E80/5416’ upon grant.
On 23 May 2023, the State provided its initial compliance which included mapping, heritage and tenure information, and draft endorsements and conditions intended to be imposed on the grant of the proposed licences. This material also included statements by Raz Resources required by s 58(1) of the Mining Act 1978 (WA) for the proposed licenses.
On 12 June 2023, the State and Raz Resources provided joint contentions (Joint contentions), and YAC provided its contentions (YAC contentions). MAC provided its contentions on 13 June 2023 (MAC contentions), one day later than directed. I accepted this minor late compliance and no party objected to me doing so.
On 5 September 2023, I made further directions allowing for submissions from the parties in response to MAC’s request that the Tribunal make a determination, under s 38(c), that the grant of E80/5416 may be done subject to a condition. The State provided further contentions in relation to this issue on 19 September 2023 (Further State contentions). No other party made further submissions.
By 28 September 2023 all parties confirmed they agreed to a determination being made on the papers in accordance with s 151(2) of the Act.
Determination
I must not make a determination in these matters if any negotiation party satisfies me that any other negotiation party did not negotiate in good faith.[5] As set out above at [12], in this matter no party has challenged good faith.
[5] Section 36(2).
Section 38 of the Act provides that, unless s 37 applies, I am required to make one of the following determinations:
(a)the act must not be done;
(b)the act may be done; or
(c)the act may be done subject to conditions to be complied with by any of the parties.
The exceptions set out in s 37 of the Act do not apply in this matter, as no agreement of the kind mentioned in s 31(1)(b) has been made, and no determination under s 36A has been made.
Section 39 of the Act prescribes the criteria for making a determination pursuant to s 38, and sets out the matters I must take into account, providing:
Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non-native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a)must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
In this matter YAC and Raz Resources have reached a separate agreement regarding the grant of the licences (Ancillary Agreement). As this agreement does not include the State, it is not an agreement meeting the formal requirements of s 31(1)(b).
Before making a determination, the Tribunal ‘must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree’.[6] The State, Raz Resources and YAC submit that the Ancillary Agreement addresses the effect of the grant of the licences on each of the matters set out in s 39(1)(a) and (b) to YAC’s satisfaction. I have taken into account the Ancillary Agreement, 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 the issues the parties agree on.
[6] Section 39(4).
I note both YAC and MAC were legally represented by separate senior legal officers at the Kimberley Land Council (KLC). Both native title parties have been informed and have had the benefit of legal advice and representation throughout this inquiry.
In making this determination, I have relied on the submissions, evidence and information provided by the parties and their representatives for the purposes of the inquiry.
The State, Raz Resources, and YAC (E80/5416 and E80/5490)
As noted above, no agreement of the kind mentioned in s 31(1)(b) of the Act has been reached in relation to the grant of E80/5416 or E80/5490.
The State, Raz Resources, and YAC confirm in their respective contentions that Raz Resources and YAC have executed an Ancillary Agreement.
YAC submits the Ancillary Agreement ‘addresses each of the matters set out in sections 39(1)(a)-(b) of the Act with respect to the Tenements’.[7] In relation to s 39(1)(b), they further submit that:[8]
The interests, proposals, opinions and wishes of the YTAC 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 the agreements.
[7] YAC contentions at [6].
[8] Ibid at [7].
Finally, YAC submit they neither consent to, nor oppose, a determination by the Tribunal under s 38 of the Act.[9]
[9] Ibid at [8].
In the Joint contentions, Raz Resources submits the Ancillary Agreement was entered into ‘for the protection of the cultural heritage of the YAC traditional owners’ and ‘addresses such issues as each party’s rights, the protection of sites and areas of significance, community benefits, heritage surveys, duration of the agreements, dispute resolution and numerous other matters’.[10]
[10] Joint contentions at [7](d)-(e).
Raz Resources submits the effect of the grant of the proposed licenses on the matters identified under s 39(1)(a) has been taken into account by Raz Resources and is addressed in the Ancillary Agreement.[11]
[11] Ibid at [8].
Raz Resources further submits:[12]
(a)The interests, proposals, opinions and wishes of YAC in relation to the management, use or control of the relevant land and waters have been taken into account by Raz Resources, have been addressed in the ancillary agreements, and that this may be taken into account by the Tribunal pursuant to section 39(1)(b) of the Act in making its determination;
(b)The grant of the proposed licenses is of economic significance to Australia, the State of Western Australia, the area in which the proposed licenses are located, and the Aboriginal people who live in that area, and that this may be taken into account by the Tribunal pursuant to section 39(1)(c) of the Act in making its determination; and
(c)The public interest supports the grant of the proposed licenses and that this may be taken into account by the Tribunal pursuant to section 39(1)(e) of the Act in making its determination.
[12] Ibid at [9]-[11].
The State relies on the statements made by Raz Resources in the Joint contentions, and, on that basis, agrees to the Tribunal taking those statements into account and having no further regard to the matters set out in s 39(1) of the Act.[13]
[13] Ibid at [12].
The State, Raz Resources, and MAC (E80/5416)
As set out above, E80/5416 is also overlapped, by approximately 0.02% of the area of tenement, by the MAC determination.
No agreement of the kind mentioned in s 31(1)(b) of the Act has been reached in relation to the grant of E80/5416. Additionally, no separate agreement between Raz Resources and MAC has been reached.
MAC ‘does not consent to the grant of [E80/5416] in so far as it overlaps the NTP Lands’.[14] However, MAC also contends that it:[15]
… does not oppose a determination by the Tribunal under section 38 of the Act subject to the Tribunal imposing a condition under section 38(1)(c) of the Act that the Overlapping Graticular Block is excised by the Government Party from the grant of the Tenement.
[14] MAC contentions at [13].
[15] Ibid at [14].
The graticular block identified is Halls Creek 676G, belonging to E80/5416 (Overlapping Graticular Block).
On 1 May 2023, following the preliminary conference in these matters, Mr Dennis Jacobs of the Department of Mines, Industry Regulation and Safety advised the Tribunal and other parties by email:
Please inform Member Eaton that the State has since sent a confirmation email and mapping to both Native title party legal representatives confirming its intention to excise the Malarngowem WC1999/044 portion of Graticule Halls creek block 677G [sic] belonging to E80/5416.
In its contentions, MAC confirms that the State had ‘provided an undertaking in writing, to the legal representative of the NTP, that the Government Party (as agreed with the Grantee Party) intends to excise the Overlapping Graticular Block immediately upon the grant of the Tenement’.[16] MAC contends ‘when the Overlapping Graticular Block is excised by the Government Party from the grant of the Tenement, the Tenement will no longer overlap any NTP Lands’.[17]
[16] Ibid at [5].
[17] Ibid.
The MAC contentions also provide:[18]
[18] Ibid at [6]-[14].
(a)No agreement of the kind mentioned in section 31(1)(b), or any ancillary agreement, has been reached with MAC in relation to the grant of E80/5416;
(b)The ancillary agreement between Raz Resources and YAC does not refer to any agreement reached with MAC. There is no such ancillary agreement with MAC;
(c)The grant of E80/5416 without an ancillary agreement with MAC and without excision of the Overlapping Graticular Block, will affect MAC’s:
i)enjoyment of their registered native title rights and interests;
ii)way of life, culture, traditions;
iii)the development of the social, cultural and economic structures of MAC;
iv)the freedom of access by MAC to the land and waters concerned, and MAC’s freedom to carry out rites, ceremonies and other activities of cultural significance on the land and waters concerned, in accordance with MAC’s traditions; and
v)areas and sites of particular significance to MAC;
(d)Pursuant to section 31(1)(b), it is in the interests and wishes of MAC that the Overlapping Graticular Block is excised by the Government Party from the grant of the Tenement to the Grantee Party;
(e)Pursuant to section 39(1)(c), the grant of E80/5416 inclusive of the Overlapping Graticular Block would not afford economic or other significance to MAC or any Aboriginal peoples who live in or around E80/5416;
(f)Pursuant to s 39(1)(e), it is not in the public interest to grant E80/5416 inclusive of the Overlapping Graticular Block, without an ancillary agreement with MAC;
(g)Pursuant to section 39(1)(f), the Tribunal should consider the State’s undertaking (as agreed with Raz Resources) that it will excise the Overlapping Graticular Block from the grant of E80/5416 and that any determination by the Tribunal under section 38 of the Act should impose such a condition to be complied with by the State;
(h)MAC does not consent to the grant of the Tenement in so far as it overlaps Malarngowem Lands; and
(i)MAC does not oppose a determination by the Tribunal, subject to the Tribunal imposing a condition on the State under section 38(1)(c) that the Overlapping Graticular Block is excised by the State from the grant of E80/5416.
In response to the condition sought by MAC, the State contended that the Tribunal should not impose the condition proposed, particularly given the history of the interactions of the parties concerned. In its contentions the State noted it originally intended to excise only that portion of E80/5416 which overlapped the MAC determination area, however, following the decision in Blue Ribbon Mines v Roy Hill Infrastructure it became clear this was not a permitted course of action, so the State advised the parties it intended to excise the entire relevant block. The State contended the history of this matter indicated its ‘long lasting intent to avoid affecting the native title held by [MAC]’[19] and that ‘there is no need for the imposition of the requested condition, or any similar condition because the Government Party does not need the imposition of a condition to do what it said it proposes to do’.[20]
[19] Further State contentions at [4].
[20] Ibid at [6].
No other party made any submissions on MAC’s contentions, or the condition sought. I also note MAC did not provide any further contentions or evidence to support its request for the determination to be subject to a condition in accordance with my further directions made 5 September 2023.
The Act affords the Tribunal broad discretion to impose conditions to be complied with by any of the parties, subject to certain statutory limitations. That discretion must be exercised by reference to the s 39 criteria and is controlled by the subject matter, scope, and purpose of the Act.[21]
[21] Muccan Minerals v Njamal at [157].
In this matter I agree with the contentions of the State that there is no need for the imposition of the condition requested by MAC. There is no evidence before me to suggest the State would resile from the undertaking it has provided to MAC and the position it has stated on several occasions to the Tribunal, both orally and in writing.
The practical result of the excision of the Overlapping Graticular Block will be such that the grant of E80/5416 will not have an effect on MAC in relation to any of the criteria I must consider under s 39.
Based on the information before me, on the balance I do not consider a determination made in this inquiry should be subject to any conditions.
Having regard to the evidence before me, I take into account the Ancillary Agreement per s 39(4)(b), and the submissions made in this inquiry that such agreement addresses the effect of the grant of the licences on each of the matters set out in s 39(1)(a) and (b) to the satisfaction of YAC. I also have regard to the State’s confirmation, given in its contentions and evidence in this inquiry, that it intends on excising the entire Overlapping Graticular Block so as to ensure that the grant of the licences do not affect any portion of the native title held by MAC.
In taking these matters into account I also note the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal, and prompt way[22] and must ensure all parties have a reasonable opportunity to present their case and make submissions.[23]
[22] See s 109.
[23] See s 142.
The parties have all had an opportunity to present their case and have filed evidence and contentions. The State, Raz Resources, and YAC each do not oppose a determination being made under s 38 that the licenses be granted to Raz Resources. MAC does not oppose a determination being made that the licenses be granted to Raz Resources, but only if a condition is imposed to reflect the State’s commitment that it will excise the Overlapping Graticular Block. For the reasons set out above, I do not consider such a condition is necessary.
Having conducted the inquiry, considered the evidence, and obtained submissions from all parties, including orally at a preliminary conference, my decision is that the acts may be done.
Determination
The determination of the Tribunal is that the act, being the grant of exploration license E80/5416 to Raz Resources Pty Ltd, may be done.
The determination of the Tribunal is that the act, being the grant of exploration license E80/5490 to Raz Resources Pty Ltd, may be done.
Ms Lisa Eaton
Member
4 October 2023
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