Robinvale Aboriginal Community/The State of Victoria/Basin Minerals Holdings Pty Ltd

[2009] NNTTA 56

NATIONAL NATIVE TITLE TRIBUNAL

Robinvale Aboriginal Community/The State of Victoria/Basin Minerals Holdings Pty Ltd, [2009] NNTTA 56 (12 June 2009)

Application No: VF09/1

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

Robinvale Aboriginal Community (VC96/1) (Applicant/native title party)

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The State of Victoria (Government party)

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Basin Minerals Holdings Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O’Dea, Member

Place:  Perth
Date:  12 June 2009

Catchwords:  Native title – future act – application for determination for the grant of mining licences – native title parties consent to the determination – consent determination that the act may be done.

Legislation:         Native Title Act1993 (Cth), ss 29, 31, 35, 38

Mineral Resources (Sustainable Development) Act1990 (Vic)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President

Hearing date:  3 June 2009

Representative of the          
native title party:                 Ms Helen Grutzner, Native Title Services Victoria

Representative of the          
Government party:             Mr James Stephens, Victorian Government Solicitor’s Office

Representative of the          
grantee party:  Ms Raina Savage, Iluka Resources Limited

REASONS FOR FUTURE ACT DETERMINATION

1. On 13 August 2008 the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of mining licence application MIN5497 (‘the proposed licence’) under the Mineral Resources (Sustainable Development) Act 1990 (Vic) to Basin Minerals Holdings Pty Ltd (‘the grantee party’).

2. The s 29 notice states that MIN5497 encompasses 15.10 hectares and is located approximately 2 kms west of Kulwin within the Shire of Mildura Rural City in the north-west of Victoria. The applicant of the proposed licence, Basin Minerals Holdings Pty Ltd, is a wholly owned subsidiary of Iluka Resources Limited (‘Iluka’).

3. The native title party with respect to these proceedings is the Robinvale Aboriginal Community (VC96/1 registered from 27 March 1996). The Robinvale Aboriginal Community is represented by Native Title Services Victoria (‘NTSV’).

4. On 18 February 2009, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’).

Background

1. Negotiations in relation to mining over the Kulwin Bush Reserve between the Robinvale Aboriginal Community and the grantee party first commenced around October 2006. Initial negotiations focussed on an agreement in relation to EL4294 (which wholly underlies MIN5497). The native title party informed the Tribunal that both parties understood that the substantive negotiations would also concern the subsequent mining project. Once agreement was reached in respect of EL4294 and the relevant deeds executed by both parties in March 2008, the Robinvale Aboriginal Community and Iluka focussed on negotiating an agreement specifically in relation to MIN5497.

2. The Tribunal is advised that the Robinvale Aboriginal Community Instructing Committee endorsed an in-principle agreement for MIN5497 in October 2008. However, at a meeting on 3 February 2009 the wider Robinvale Aboriginal Community failed to ratify this in-principle agreement.

3. As a consequence the grantee party lodged its application with the Tribunal to make a determination about whether or not the grant of MIN5297 should proceed and, if so, whether or not the grant is to be subject to any conditions. No proposal was made in that application that the determination by the Tribunal be made by the consent of all the parties.

Preliminary matter

1. The grantee party’s s 35 application (Form 5) required an amendment at the second paragraph of item 13 (on page 4). Minutes of Consent Direction replacing ‘EL4465’ with ‘EL4294’ were signed by all the parties and copies provided to the Tribunal on 6 March 2009.

Inquiry

1. A first preliminary conference between the parties was held on 3 March 2009. Whilst not anticipating that the question of good faith would be pursued by the Robinvale Aboriginal Community, the representative for the native title party required time in order to seek instruction to confirm that this would be the case. This instruction was to be sought at a Robinvale Aboriginal Community meeting scheduled for 4 and 5 April 2009. The Tribunal made Directions on 6 March 2009, including that the native title party advise on or before 6 April 2009 whether or not it would pursue the issue of good faith negotiations (Direction 1).

2. On 30 March 2009, Ms Helen Grutzner, the representative for the native title party, advised the Tribunal and parties that it had been unable to obtain instructions from its client regarding its intentions on the issue of good faith as required in order to comply with Direction 1. Ms Grutzner also stated that it was not anticipated that NTSV would hold a meeting with the Robinvale Aboriginal Community in the foreseeable future. Ms Grutzner advised that her inability to gain instruction was due to issues internal to the group—that is, the issues were not related to any lack of logistical capacity for the group to attend meetings.

3. As the native title party was not, therefore, able to comply with Direction 1 (on the issue of good faith), the adjourned preliminary conference was reconvened by the Tribunal on 1 April 2009. By the close of the conference, the representative for the native title party indicated that NTSV’s internal management of the claim group issues may result in a meeting with the Robinvale Aboriginal Community being called in June 2009, though this was by no means certain.

4. I concluded before the parties during the conference that Direction 1, on the good faith issue, had essentially been complied with - that is, the issue would not be pursued.  It was also clear to me that the native title party did not have the capacity to participate in mediation pursuant to s 150.  I therefore ordered that the dates of my original Directions were to remain the same with the submissions and contentions of the government and grantee parties to be provided by 28 April 2009 and those of the native title party by 26 May 2009.  A hearing was listed for the week commencing 15 June 2009.

5. The Government and grantee parties both provided their submissions and contentions to the Tribunal and other parties on 29 April 2009.

Proposed Determination by Consent

1. On 6 May 2009 the Tribunal received an email from Ms Raina Savage, for the grantee party, advising that it had been advised by the representative for the native title party that a meeting of the wider Robinvale Aboriginal Community claim group was held on the weekend of 1 and 2 May 2009 and

   ‘the group has instructed NTSV that, in relation to Iluka's s 35 application, it accepts that Iluka has negotiated in good faith and will consent to the grant of MIN5497’.

2. Confirmation of Ms Savage’s advice was sought from Ms Grutzner and a request made for an affidavit attesting to certain issues relating to the consent of the native title party to a determination that the future act can be done, namely:

3. That the consent of the native title claim group was properly given, based on the established decision-making processes of the native title claim group;

4. How many of the registered native title claimants declined to endorse the agreement with Iluka;

5. The reasons why not all of the signatures of the registered native title claimants could be obtained;

6. That NTSV has instruction from the registered native title claimants as a whole that it endorses the execution of an agreement with Iluka; and

7. That despite not obtaining the signatures of all of the registered native title claimants, NTSV is confident that the native title claim group, as a whole, endorses the agreement with Iluka.

8. On 26 May 2008 Ms Grutzner swore an affidavit confirming that the consent of the native title party had been secured on the basis that:

   ‘...following the meeting on 3 February 2009, NTSV staff were contacted by various members of the Robinvale Aboriginal Community who were dissatisfied with the outcome of the meeting on 3 February 2009.  These members included registered applicants and other members who had voted at the meeting on 3 February 2009 not to authorise the agreement with Iluka for MIN5497 and who now indicated that they supported finalising an agreement with Iluka - at [9]

   ...NTSV then contacted all members of the Robinvale Aboriginal Community to canvass their views about holding a further meeting with a view to obtaining instructions for finalising an agreement for MIN5497.  This proposal for a further meeting attracted the support of a majority of members of the Robinvale Aboriginal Community, including those who had been opposed to finalising the in-principle agreement at the meeting on 3 February 2009 - at [10]

   In accordance with the wishes of the Robinvale Aboriginal Community, NTSV organised a meeting of the Robinvale Aboriginal Community Instructing Committee to be held in Robinvale on 2 May 2009.  The Robinvale Aboriginal Instructing Committee has been delegated decision making authority by the Robinvale Aboriginal Community as a whole to finalise agreements such as the one proposed to be considered at this meeting with Iluka on behalf of the wider group - at [11]

   This meeting was attended by all members bar one of the Robinvale Aboriginal Community Instructing Committee which includes representatives from all family groups as identified in Application Information and Extract from the Register of Native Title Claims for VID6003/98’ - at [13].

9. In her affidavit, Ms Grutzner confirmed that NTSV was able to obtain instructions that the Robinvale Aboriginal Community Instructing Committee, acting on behalf of the Robinvale Aboriginal Community, endorsed the execution of the agreement with Iluka for MIN5497:

   ‘the resolutions of 2nd May 2009 were passed in accordance with the decision making processes of the Robinvale Aboriginal Community. NTSV has been duly instructed that the Robinvale Aboriginal Community Instructing Committee acting on behalf of the Robinvale Aboriginal Community authorises the execution of the Agreement in accordance with the resolutions of 2nd May 2009. Further NTSV has been duly instructed that the Robinvale Aboriginal Community Instructing Committee acting on behalf of the Robinvale Aboriginal Community consents to the arbitration matter VFO9/1 being determined by the National Native Title Tribunal’ - at [16].

10. A final adjourned preliminary conference was convened by the Tribunal on 3 June 2009 at which Ms Grutzner gave further assurances as to the consent of the Robinvale Aboriginal Community and that NTSV, as its representative, had instructions in accordance with the group’s decision-making processes.

11. On 4 June 2009 the Tribunal was provided with a minute of consent orders signed by Ms Helen Grutzner, NTSV, on behalf of the native title party, Ms Mary Scalzo, Managing Principal Solicitor of the Victorian Government Solicitor’s Office, representing the Government party and Ms Raina Savage, representing the grantee party, in the following terms:

    ‘1.The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993 (Cth).

    2.The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act1993 (Cth).

    3.The act, namely the grant of mining licence application 5497 under the Mineral Resources (Sustainable Development) Act 1990 (Vic) may be done.’

12. The Tribunal has the power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President).

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Mining Licence MIN5497, to Basin Minerals Holdings Pty Ltd, may be done.

Daniel O’Dea
Member

12 June 2009