Reg Yaran (Jnr) and Others on behalf of the Ballardong People v Lake Hillman Mining Pty Ltd and Another
[2016] NNTTA 47
•19 October 2016
NATIONAL NATIVE TITLE TRIBUNAL
Reg Yaran (Jnr) and Others on behalf of the Ballardong People v Lake Hillman Mining Pty Ltd and Another [2016] NNTTA 47 (19 October 2016)
| Application No: | WF2016/0007 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Reg Yarran (Jnr) and Others on behalf of the Ballardong People (WC2000/007)
(native title party)
- and -
Lake Hillman Mining Pty Ltd
(grantee 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: | 19 October 2016 |
| Catchwords: | Native title – future act – proposed grant of mining lease – parties agree to grant – parties unable to formalise s 31(1)(b) agreement – Tribunal to take into account any agreement on issues relevant to determination – the act may be done |
| Legislation: | Native Title Act 1993 (Cth) ss 31(1)(a), 31(1)(b), 35(1), 38, 39(1), 39(4) Mining Act 1978 (WA) |
Cases: | Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’) |
| Representatives of the native title party: | Mr Peter Nettleton, South West Aboriginal Land and Sea Council |
| Representative of the grantee party: | Mr Marcus Holmes, Land Equity Legal |
| Representatives of the Government party: | Ms Faye Mitchell Department of Mines and Petroleum Mr Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision concerns an application made to the National Native Title Tribunal seeking a determination that a mining lease may be granted, where the parties agree to the grant of the lease but have been unable to meet the formal requirements of the Native Title Act 1993 (Cth) (‘the Act’).
On 11 August 2010, the State of Western Australia gave notice, as per s 29 of the Act, of its intention to grant mining lease 70/1291 (‘the lease’) to Lake Hillman Mining Pty Ltd (Lake Hillman) under the Mining Act 1978 (WA). The lease is located 47 kilometres west of Bencubbin and lies entirely within the area covered by the registered native title determination application of the Ballardong People. No other registered native title determination application overlaps the lease. Accordingly, the Ballardong People are the only native title party for the purposes of the negotiation procedure set out in s 31 of the Act.
Can the Tribunal make a determination?
The future act determination application
Section 31(1)(b) of the Act requires the grantee party, native title party and the State to negotiate in good faith with a view to obtaining the agreement of the native title party to the grant of the lease. If, after six months, the parties are unable to agree, any of the parties may apply to the Tribunal for a determination.
On 1 June 2016, the Ballardong People made a future act determination application in relation to the grant of the lease.
On 16 June 2016, I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the application. The application satisfied the requirements under s 35(1) of the Act as it was made more than six months after the lease was notified and no s 31(1)(b) agreement has been made. I accepted the application on 21 June 2016.
The application states the Ballardong People consent to the grant of the lease in the form of a proposed ‘Lake Hillman Mining Agreement’. The application also states the ‘negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph s 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act’. A s 31(1)(b) agreement concerns the grant of such a lease and is regarded as being between the ‘negotiation parties’ (that is, between each grantee party, each native title party and the State: see Aston Coal 2 v Gomeroi People).
The inquiry and further information
On 18 July 2016, a preliminary conference was held to discuss the future act determination application. The representative for the Ballardong People clarified that there were outstanding signatures from members of the Ballardong applicant to the Lake Hillman Mining Agreement. The reason for this was that one person is deceased, one person is incapacitated and two others refuse to sign any agreements as part of an overall objection to the negotiation of Indigenous Land Use Agreements to resolve native title in the South West of Western Australia.
The Tribunal then sought further information from the Ballardong People’s representative. On 15 September 2016, the Tribunal was provided with minutes from Ballardong Working Party meetings held on 16 February 2016 and 5 April 2016, recording the unanimous resolution of the Ballardong Working Party to accept the proposed Lake Hillman Mining Agreement. A medical certificate of incapacitation was provided in relation to the incapacitated applicant, and confirmation from the State Solicitor’s Office of a death certificate was provided in relation to the deceased applicant.
The Lake Hillman Mining Agreement does not meet the requirements of a s 31(1)(b) agreement, and I am therefore able to make a determination.
Issues to take into account in making a determination
In making a determination, I must have regard to the criteria in s 39(1)(a) of the Act. These criteria include the effect of the mining lease on the native title party’s: enjoyment of their registered native title rights and interests; development of their social, cultural and economic structures; freedom of access; and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to the native title party in accordance with their traditions.
I am also required to take into account the other matters specified in s 39(1), namely: the interests, proposals, opinions and wishes of the native title party in relation to the management, use or control of the land or waters affected by the mining lease; the economic or other significance of the mining lease to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islander peoples who live there; the public interest in the mining lease; and the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the native title party. I must also take into account any other matter I consider to be relevant.
If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then I must take that agreement into account in making my determination, and need not take into account the matters in s 39(1) to the extent those matters relate to the issues agreed (see s 39(4) of the Act). To this end, I directed parties to confer for the purpose of reaching agreement on issues relevant to the determination and to file a statement of agreed facts.
The statement of agreed facts, submitted by the Ballardong People’s representative on behalf of all parties, was provided to the Tribunal on 5 September 2016 and states:
1.The Government party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth) (NTA).
2.The Native Title Party, Grantee Party and Government Party have negotiated in good faith in accordance with section 31(1)(b) of the NTA in relation to the grant of Mining Lease 70/1291 under the Mining Act 1978 (WA) and a final draft Mining Agreement (Agreement) has been settled, however of the Native Title Party, once claimant is deceased, one is incapable and two have refused to sign the Agreement.
3.The Native Title Party and the Grantee Party agree to be bound by the Agreement notwithstanding that it has not been signed by all of the Native Title Party.
4.The Native Title Party consents to the grant of Mining Lease 70/1291.
5.The Native Title Party and Grantee Party have addressed the effect of the Mining Lease 70/1291 regarding each of the matters outlined in section 39(1)(a) – (f) of the NTA to their mutual satisfaction in the Agreement.
6.The Native Title Party and Grantee Party both consent to the Tribunal taking into account the fact that they:
a.have addressed the matters outlined in s39(1)(a) – (f) of the NTA to their mutual satisfaction in the Agreement; and
b.consequently agree to the grant of Mining Lease 70/1291 will have no significant adverse effect on those matters, in making its determination.
7.On that basis, the Native Title Party and Grantee Party also consent to the Tribunal having no further regard to the matters outlined in section 39(1)(a) – (f) of the NTA, in reliance on section 39(4) of the NTA.
8.The Government Party relies on the statements made by the Native Title Party and Grantee Party at para 6 above, and, on that basis, consents to the Tribunal taking those statements into account and having no further regard to the matters in section 39(1) of the NTA.
9.The Native Title Party, Grantee Party and Government Party agree to make no further submissions on these matters; and
10.The Native Title Party, Grantee Party and Government Party consent to a determination under section 38 of the NTA that the grant of Mining Lease 70/1291 may be done.
It is clear from the material provided that all parties agree to the grant of the lease and there is a common understanding regarding the factors in s 39(1). Taking into account the matters outlined above, and the relevant provisions of the Act, I make the following determination.
Determination
The determination of the Tribunal is that the act, namely the grant of mining lease 70/1291 to Lake Hillman Mining Pty Ltd, may be done.
Helen Shurven
Member
19 October 2016
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