Sarag Pty Ltd v Jaru Aboriginal Corporation RNTBC
[2023] NNTTA 16
•16 May 2023
NATIONAL NATIVE TITLE TRIBUNAL
Sarag Pty Ltd v Jaru Aboriginal Corporation RNTBC and Others [2023] NNTTA 16 (16 May 2023)
Application No: | WF2023/0001; WF2023/0002 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Jaru Aboriginal Corporation RNTBC (WCD2018/013)
(native title party)
- and -
Scotty Birrell & Ors on behalf of the Koongie-Elvire Native Title Claim Group (WC1999/040)
(native title party)
- and -
Malarngowem Aboriginal Corporation RNTBC (WCD2019/005)
(native title party)
- and -
Sarag Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 16 May 2023 |
Catchwords: | Native title – future act – s 35 application for determination – exploration licence applications – uncontested application – s 39 criteria considered – effect on native title rights and interests – effect of acts on way of life, culture and traditions – effect of acts on freedom of access – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of native title parties – economic or other significance of acts – public interest in doing of acts – determination that the acts may be done |
Legislation: | Native Title Act 1993 (Cth) ss 31, 38, 39 |
Cases: | Barbara Sturt & Others on behalf of Jaru and Maggie John & Others on behalf of Malarngowem v Sarag Pty Ltd and Another [2018] NNTTA 46 (‘Sarag August 2018’) Frank Sampi & Others on behalf of Koongie-Elvire and Barbara Sturt & Others on behalf of Jaru v Sarag Pty Ltd and Another [2018] NNTTA 54 (‘Sarag September 2018’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title parties: | Priya Mittal, Kimberley Land Council |
| Representative of the grantee party: | Mike Dunbar, Mamba Exploration Limited |
| Representatives of the Government party: | Sebastian Boccardo, State Solicitor’s Office; Dennis Jacobs, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Sarag Pty Ltd has reached agreement with Jaru Aboriginal Corporation RNTBC, the registered native title claimant for the Koongie-Elvire native title determination application and Malarngowem Aboriginal Corporation RNTBC (collectively the native title parties) in relation to the grant of two exploration licences (E80/5085 and E80/5086), located near Halls Creek in Western Australia.
However, the native title parties and the State of Western Australia do not agree on the terms of an agreement of the kind contemplated in s 31(1)(b) of the Native Title Act 1993 (Cth), which would enable the grant of the licences to proceed.
Consequently, Sarag has applied to the Tribunal for a determination that the licences may be granted. Because the native title parties have entered into an agreement with Sarag, they do not oppose Sarag’s application. They say that they are satisfied their interests have been addressed in the agreement. Sarag’s application is also supported by the State.
Having considered the requirements of the Native Title Act, and taking account of the parties’ respective positions, I have determined that each of the exploration licences may be granted.
Issues for determination
Under s 38 of the Native Title Act, I am required to make one of the following determinations in relation to each licence:
(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 Native Title Act. The Native Title Act 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.
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 the native title parties in relation to the management, use or control of land or waters affected by the licences: s 39(1)(b)
Section 39(1)(a)(i) relates to the effect of the grant of the licences on the native title parties’ enjoyment of their registered native title rights and interests.
Jaru holds native title in trust in relation to parts of both licences and Malarngowem holds native title in trust in relation to part of one of the licences (E80/5086). For the areas held by Jaru and Malarngowem, the registered native title rights and interests are those described in the relevant entries on the National Native Title Register.
In addition, almost a quarter of E80/5085 is located within the Koongie-Elvire claim area. The registered native title rights and interests for that area are described in the relevant entry on the Register of Native Title Claims.
In Sarag August 2018 (regarding E80/5086) and Sarag September 2018 (regarding E80/5085), the Tribunal found that the licences contain areas or sites of particular significance to the relevant native title parties. The Tribunal also received evidence regarding a range of community and social activities, such as hunting and fishing, undertaken by the native title parties in the area of each licence. The Tribunal was satisfied in each case that the grant of the relevant licence was likely to interfere with areas or sites of particular significance and with the native title parties’ community and social activities.
Following those decisions, the native title parties have negotiated with Sarag, resulting in agreement as mentioned above.
In this matter, the native title parties have not provided any evidence or contentions in relation to the matters listed in ss 39(1)(a) and (b) other than to jointly state that they agree the effect of the grant of the licences on each of the matters in ss 39(1)(a) and (b) has been taken into account by Sarag, and addressed to their mutual satisfaction in their agreement. Sarag similarly submits that it has taken account of each of those matters and that they are addressed in its agreement with the native title parties.
All parties say I can take this position into account in my consideration of these matters.
In summary, no evidence has been provided by any party about the effect of the licences on the matters in these criteria. However, the fact that the native title parties and Sarag say they have addressed the effect of the licences on these matters to their mutual satisfaction in their agreement and that consequently the native title parties do not oppose a determination that each licence may be granted, weighs in favour of such a determination.
Economic or other significance of the licences: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the licences to Australia, the State, the areas in which the licences are located and to the Aboriginal peoples and Torres Strait Islanders who live in those areas. This requires an evaluation of the economic or other significance of the licences, 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 to local or regional areas.
Sarag submits that the grant of the licences is of economic significance to Australia, the State of Western Australia, the area in which the licences are located and the Aboriginal people who live in that area, although no further explanation is given. The State says that it relies on the statement by Sarag, and agrees to me taking it into account. The native title parties do 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 licences. The licence applications disclose the rent payable by Sarag. The statements accompanying each of Sarag’s licence applications also outline Sarag’s initial work program and proposed expenditure for year 1.
Overall, on the material before me, there is little to be gleaned regarding the economic or other benefit arising from the licences, but I can accept they may be of at least some economic benefit to the local region, even if of limited State or national benefit.
Public interest in the grant of the licences: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the licences. 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).
Sarag submits that the public interest supports the grant of the licences. The State does not expressly agree with that proposition but again says that it relies on the statement by Sarag, and agrees to me taking it into account. The native title parties’ 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 v Thomas at 176). In that context, I am satisfied there is public interest in the grant of the licences in this case.
Any other matter the Tribunal considers relevant: s 39(1)(f)
I have taken into account the parties’ statements, particularly the native title parties’ satisfaction with their agreement with Sarag. There are no other matters that I consider relevant to my determination in this matter.
Should the licences be granted and, if so, should conditions be applied?
Sarag’s application is unopposed and the native title parties say that their interests are met through their agreement with Sarag. Taking that into account and having regard to my consideration of the matters prescribed in s 39, I am satisfied that the licences may be granted.
The State’s material includes the conditions and endorsements it proposes to impose on the grant of each licence, which I have considered 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 exploration licences E80/5085 and E80/5086 may be granted.
Ms Nerida Cooley
Member
16 May 2023
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