St. Ives Gold Mining Company Pty Ltd v Ngadju
[2014] NNTTA 73
•25 July 2014
NATIONAL NATIVE TITLE TRIBUNAL
St. Ives Gold Mining Company Pty Ltd and Another v Ngadju [2014] NNTTA 73 (25 July 2014)
Application No: WF2014/0005
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
St. Ives Gold Mining Company Pty Ltd (grantee party)
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Jack Schultz, John Walter Graham, Katie Ray, Sonny Graham and names withheld for cultural reasons on behalf of Ngadju (WC1999/002) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Member Helen Shurven
Place: Perth
Date of decision: 25 July 2014
Grantee party
representative: Ms Christine Lovitt, Hewett & Lovitt Pty Ltd
Native title party
representative: Mr David Lanagan, Goldfields Land and Sea Council
Government party Ms Caitlyn Rice, State Solicitor’s Office
representatives: Mr Jason Diss, Department of Mines and Petroleum
Catchwords: Native title – future act – no agreement with native title party – application for determination for the grant of mining lease – s 39 criteria considered – no evidence from native title party – determination that the act may be done
Legislation: Native Title Act 1993 (Cth), ss 26, 28-31, 35, 36, 38, 39, 76, 77, 109(3)
Mining Act 1978 (WA), ss 82, 84, 85
Mining Regulations 1981 (WA)
Acts Interpretation Act 1901 (Cth), s 36
Aboriginal Heritage Act 1972 (WA)
Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People [2008] NNTTA 38 (‘Australian Manganese v Nyiyaparli’)
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/ Queensland [2006] NNTTA 3 (‘Cameron v Gugu Badhun’)
Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (‘Cheinmora v Striker Resources’)
Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19 (‘Griffin Coal v Nyungar People’)
Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 (‘Western Australia v Thalanyji and Gnulli’)
Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49; (2009) 2 ARLR 214 (‘Western Desert Lands v Western Australia’)
REASONS FOR DECISION
Background
On 14 December 2011, the Government party, through the Department of Mines and Petroleum (DMP), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant mining lease M15/1799 (‘the proposed lease’) to St. Ives Gold Mining Company Pty Ltd (‘the grantee party’). The notice for the proposed lease specified the notification day as 14 December 2011 (see s 29(5) of the Act).
The s 29 notice provides that any person who, four months after the notification day, is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, has a procedural right to negotiate in relation to the future act (see s 30(1)(a) and s 31 of the Act). The end of the notification period was 16 April 2012, being the next working day following 14 April 2012 (by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth)).
At the end of the notification period, the Ngadju claim (WC1999/002, registered from 3 March 1999) wholly overlapped the proposed lease. As there were no other registered claims or determinations overlapping the proposed lease on that date, the Ngadju are the only native title party for the purpose of this determination (see s 29(2)(b)(i) and s 30(1) of the Act). The native title party are represented by the Goldfields Land and Sea Council (‘GLSC’).
According to the s 29 notice, the grant of the proposed lease would authorise the grantee party to mine for minerals for a term of 21 years from the date of grant, with the right of renewal for 21 years. The notice specifies the size of the proposed lease to be approximately 464.45 hectares with a centroid of 31o 37’ S, 121o 40’ E, located 17 kilometres south-easterly of Widgiemooltha in the Shire of Coolgardie.
The proposed lease is a future act covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28 of the Act, the future act will be invalid to the extent that it affects native title. In this case, s 28(1)(g) of the Act is the relevant requirement, that is, invalidity of the future act can be avoided if ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with’.
The section 35 future act determination application
Following the notification period outlined above, the Government party commenced negotiations with parties by letter dated 23 February 2012.
On 4 February 2013, Mincor Resources NL, as agent for the grantee party, applied for the National Native Title Tribunal (‘the Tribunal/NNTT’) to make a determination under s 38 of the Act; the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) and at least six months had passed since the notification day specified in the s 29 notice (see s 35 of the Act). On 6 February 2014, President Raelene Webb QC appointed me for the purpose of making the determination in respect of the proposed lease. On 26 February 2014, I considered the conditions outlined in s 76 of the Act and accepted the determination application.
The inquiry
If alleged that the grantee or Government party’s conduct had not been in good faith, the Tribunal would have to consider the contentions and evidence on that issue. The Tribunal would only have power to determine the substantive issue under s 39 of the Act if it were satisfied that the relevant party had negotiated in good faith. At the preliminary conference held on 11 March 2014, the native title party indicated it did not intend to submit the grantee party or Government party had not negotiated in good faith (see ss 31(1)(b) and 36(2) of the Act). The native title party representative advised an agreement in principle had been reached with the grantee party and final authorisation was required from the native title party claim group at a meeting scheduled for 29-30 April 2014.
At the preliminary conference, and with agreement from the parties, I made directions in relation to the inquiry. Amongst other things, the directions required the parties to submit contentions and evidence in relation to the criteria under s 39 of the Act. The Government and grantee parties’ submission date was 11 April 2014 and the native title party’s was 9 May 2014.
In compliance with the directions the grantee party submitted:
(a)Statement of Contentions dated 11 April 2014; and
(b)Affidavit of Graham Fariss, Chief Financial Officer and Company Secretary of Mincor Resources NL, agent for the grantee party, sworn 11 April 2014. Attached to the affidavit was Annexure A, being a map of the proposed lease, and Annexure B being a Heritage Protection Agreement (HPA) between the native title party and Mincor Resources NL. The HPA relates to all exploration and prospecting tenure within the native title party’s claim area in which Mincor Resources NL holds an interest. It does not appear to relate to mining leases or mining lease applications. I note the HPA relates to the three underlying prospecting licences held by the grantee party, and does not appear to relate to the proposed lease which is a mining lease. The native title party have not provided any submissions on this point. Therefore, on the face of it, the HPA is of little relevance to my considerations in this particular inquiry, other than to indicate the grantee party’s awareness Aboriginal Heritage.
In compliance with directions, the Government party submitted:
(a)Statement of contentions dated 11 April 2014; and
(b)Mining tenement register search, s 29 notice, Tengraph Quick Appraisal, details of underlying Pastoral Lease PL3114/1251, mapping, draft Tenement Endorsement and Conditions Extract, and a search of the Department of Aboriginal Affairs (DAA) Aboriginal Heritage Inquiry System. All documents relate to the proposed lease.
Directions were subsequently amended on 8 May, 23 May and 5 June 2014 following requests from the native title party and with agreement from the grantee and Government parties. The native title party required additional time to seek authorisation from the native title party claim group for the agreement in principle between it and the grantee party.
On 3 July 2014, the native title party representative advised via email:
... the Native Title party does not intend to file any contentions, requests that the Hearing be vacated, and that the matter be dealt with on the papers currently before the NNTT
The grantee party confirmed its agreement with this proposed process via email on the same day.
Evidence in relation to the proposed lease
The Tengraph Quick Appraisal provided by the Government party indicates the following current and past interests granted over the proposed lease:
(a)Madoonia Downs Pastoral Lease 3114/1251 overlapping at 100 per cent;
(b)three live prospecting licences P15/4836, P15/4838 and P15/4839 held by the grantee party and overlapping at 25.9, 20.2 and 35 per cent respectively;
(c)three expired prospecting licences P15/2687, P15/2689 and P15/2690 held from 1990 to 2009 and overlapping at 25.9, 20.2 and 35 per cent respectively;
(d)surrendered exploration licence E15/40 held from 1984 to 1986 and overlapping at 2 per cent;
(e)ten surrendered or cancelled mineral claims held between 1968 and 1982, each held for no more than four years and overlapping between 8.7 and 25.9 per cent;
(f)two cancelled temporary reserves held from 1965 to 1966 and from 1965 to 1972 overlapping at 94.4 and 5.6 respectively.
Search results from the DAA Aboriginal Heritage Inquiry System show no registered sites within the proposed lease.
Via the affidavit of Mr Fariss, Chief Financial Officer and Company Secretary of Mincor Resources NL, the grantee party submits:
2.Mincor has acquired the application for mining lease 15/1799 (the Mining Lease) from, and is authorised to make this future act application on behalf of, St Ives Gold Mining Company Pty Ltd.....
5.Mincor owns and operates an underground nickel mine in the Goldfields Region of Western Australia. The Mining Lease is immediately adjacent to this mine and, if granted, will enable the extension of the existing underground operations….
6.Access to the existing underground mine is located on an existing mining lease and if these underground operations are extended on to the Mining Lease area there will no requirement for additional surface access as the existing access will be used.
7.The only possible surface disturbance which may occur on the Mining Lease would be for the purposes of ventilation shafts for the underground operations, and any such disturbance would be minimal. All other mining activities will be conducted underground.
8.To the extent that the Native Title Party currently exercises any native title rights or cultural activities on the area of the Mining Lease, the exercise of these rights will not be impaired or diminished in any significant way due to the fact that Mincor’s mining operations will be underground and as such, will not affect surface access or the freedom to carry out cultural activities on the land.
Conditions of grant
Under the Mining Act 1978, the holder of a mining lease can exercise the rights set out in s 85, subject to the lessee covenants and various conditions set out in s 82. It is also possible for the Minister to impose further conditions under s 84 relating to the ‘prevention or reduction of injury to land’. The Government party’s draft tenement endorsement and conditions extract is as follows:
ENDORSEMENTS
1. The lessee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The lessee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRМA) the following endorsements apply:
3. The lessee attention [sic] is drawn to the provisions of the:
•Waterways Conservation Act, 1976
•Rights in Water and Irrigation Act, 1914
•Metropolitan Water Supply, Sewerage and Drainage Act, 1909
•Country Areas Water Supply Act, 1947
•Water Agencies (Powers) Act 1984
•Water Resources Legislation Amendment Act 2007
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the Department of Water's relevant Water Quality Protection Notes and Guidelines for mining and mineral processing
In respect to Artesian (confined) Aquifers and Wells the following endorsements apply:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for the activities has been issued by the DoW.
In respect to Waterways the following endorsements apply:
7. Advice shall be sought from the DOW if proposing any mining/activity in respect to mining operations within a defined waterway and within a lateral distance of:
•50 metres from the outer-most water dependent vegetation of any perennial waterway, and
•30 metres from the outer-most water dependent vegetation of any seasonal waterway.
8. Measures such as effective drainage controls, sediment traps and stormwater retention facilities being implemented to minimise erosion and sedimentation of receiving catchments and adjacent areas.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
9. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
CONDITIONS
1. Survey.
2. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
3. All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
4. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
5. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
6. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
7. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
Legal Principles
The Tribunal must determine whether the act must not be done, or that the act may be done, or that the act may be done subject to conditions (see s 38 of the Act). Section 38(2) prohibits the Tribunal from imposing a profit-sharing condition with its decision. The Tribunal must assess the evidence provided by each party in terms of the criteria in s 39 of the Act, which reads as follows:
39 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.
The Tribunal must weigh the various s 39 criteria, and the Act does not require greater weight to be given to some criteria over others. It is a discretionary exercise in assessing the s 39 criteria, and the outcome of the assessment will depend on the evidence provided in relation to each criterion (see Western Desert Lands v Western Australia at [37]). In addition, for example, in Western Australia v Thomas, the Tribunal explained (at 165-166):
We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
Section 36(1) of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable. Section 109(3) of the Act outlines the Tribunal is not bound by technicalities, legal forms or rules of evidence. Although there is no burden of proof incumbent on any of the parties during a future act determination inquiry, the Tribunal relies on the evidence provided in relation to the criteria (see Western Australia v Thomas at 157-158). Ultimately, a common sense approach to evidence is required and the determination will be based on logically probative evidence and application of the law (see Western Australia v Thomas at 162-163).
No evidence from the native title party
The Tribunal has, on a number of occasions, made determinations without evidence from the native title party involved and, in doing so, has confirmed and adopted the authority in Western Australia v Thomas (at 162).
In Cameron v Gugu Badhun, Deputy President Sosso noted the mandatory nature of s 39, held the Tribunal has the power to make a determination in absence of evidence from the native title party and there is no obligation to go beyond the evidence submitted by the parties in an endeavour to perform the statutory obligation imposed by s 39 (at [17]).
In Griffin Coal v Nyungar People, the native title party instructed its representatives not to submit contentions or evidence in regard to the s 35 determination after the good faith negotiations challenge failed. The Tribunal confirmed at [8]:
The Tribunal’s present view, subject to receipt of submissions to the contrary in a future matter, is that despite the cost and inconvenience to the other parties and Tribunal, the Act imposes an obligation to consider and take into account the criteria in s 39 for the purposes of making one of the required determinations. The mandatory nature of ss 38 and 39 means that even where a native title party says before compliance by the Government party and grantee party that it will not be making contentions or providing evidence, the Tribunal is obliged to conduct an inquiry which requires the other parties to address the issues dealt with in s 39. In such circumstances there is no means whereby the Tribunal can in a summary manner proceed to make a determination.
In Western Australia v Thalanyji and Gnulli, the Thalanyji native title party representative advised they would not be making any submission due to lack of resources. With reference to Western Australia v Thomas Deputy President Sumner noted at [18]-[19]:
The Tribunal must act on the basis of evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence which means that parties will produce evidence to support their contentions particularly where facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence the Tribunal is normally entitled to proceed to make a determination without it.
In this matter the Thalanyji native title party have been represented throughout .... In these circumstances the Tribunal has fulfilled its statutory obligations under the Act by giving the native title party an opportunity to provide contentions and evidence and proceeding to make a determination on the papers if that opportunity is not taken up.
I adopt the principles as outlined in the decisions cited (at [22]-[25]) for the purposes of this matter, and make my decision based on the materials provided to the Tribunal by the grantee and Government parties.
Sections 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests
The Government party contends:
·The effect of the future act will depend upon the manner in which the grantee party proposes to exercise its rights, and the manner in which the native title party currently enjoys its rights (at 42).
·The area of the proposed lease has been subject to previous mining tenure (at 27)
·The Tribunal should have regard to the small size of the proposed lease relative to the native title party’s claim area (at 46)
·The proposed conditions and endorsements ‘are intended to minimise impacts on the environment and which would also minimise impacts on native title’ (at 44).
·In the absence of any evidence from the native title party, the Tribunal should conclude there will be no relevant effects on the above (at 45).
I accept these contentions. Even if evidence were provided by the native title party, it would be difficult to contemplate any effect given the grantee party’s plans. The grantee party states it intends to create an underground mine on the proposed lease, with access via an adjoining mining lease, and with disturbance to the surface being limited to ventilations shafts (Affidavit of Mr Fariss at 6-8).
Section 39(1)(a)(ii) – way of life, culture and traditions of the native title party
Section 39(1)(a)(iii) – development of social, cultural and economic structures of the native title party
In the absence of any evidence from the native title party, the Government party contends the Tribunal should conclude there will not be any relevant effects in relation to these criteria (at 48, 51). I accept that contention. There is no material before me to make a conclusion that the grant of the proposed licence will have any effect on the native title party’s way of life, culture or traditions, or development of their social, cultural or economic structures.
Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies or other activities of cultural significance
The Government party contends the effects of the act on this criterion will depend upon the grantee party’s proposed activities and evidence from the native title party of actual or planned rites, ceremonies or activities. In the absence of any evidence from the native title party, the Government party contends the Tribunal should conclude there will be no effects, or no significant effects on the above (at 54). I accept that contention. There is no material before me to make a conclusion that the grant of the proposed licence will have any effect on the native title party’s freedom to access the area. Again, I note that even if evidence were provided by the native title party, it would be difficult to contemplate any effect given the grantee party intends to create an underground mine on the proposed lease (Affidavit of Mr Fariss at 6-8).
Section 39(1)(a)(v) – effect on areas or sites of particular significance and s 39(3) – laws protecting sites of significance not affected
The Government party contends the native title party must identify and establish there are areas or sites of particular significance to them in accordance with their traditions (at 56, citing Cheinmora v Striker Resources at 34). It also contends the Tribunal must take into account the grantee party’s program and the Aboriginal Heritage Act (AHA). I accept the Government party’s contention that the Tribunal should not lightly find the AHA insufficient to provide protection for sites (at 59, citing Western Australia v Thomas at 209-211 and Australian Manganese v Nyiyaparli at [52]-[54]). In the absence of any evidence from the native title party regarding areas or sites of particular significance to them, I cannot find the grant of the proposed lease will have any effect on this criterion.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters
I am unable to consider the above given no evidence is provided by the native title party.
Section 39(1)(c) – economic or other significance
The Government party contends the Tribunal has often found the grant of mining leases will be of economic benefit to the State, as well as regional or local areas and that there is no reason why a similar finding should not be made in this matter (at 63). I accept that contention. The Tribunal has consistently accepted the economic benefits arsing from the grant of mining tenure in Western Australia, in the absence of any evidence to the contrary.
Section 39(1)(e) – the public interest
The Government party contends the public interest will be served by the grant of the proposed lease and that the Tribunal has repeatedly held that mining and exploration activities are in the public interest for the purpose of s 39(1)(e) of the Act (at 65). I accept the contentions. The Tribunal has consistently accepted that the economic benefits arising from exploration and mining will serve the public interest, in the absence of any evidence to the contrary.
Section 39(1)(f) – any other relevant matters
Given the evidence before me, I cannot find any other relevant matters which need to be considered.
Conclusion
Taking into account the matters referred to above, I consider the evidence favours a determination that the proposed act may be done. No party has suggested any conditions which should be imposed on the grant of the mining lease, apart from those outlined at [18], together with endorsements, which will be imposed on the grant by the Government party.
Determination
The determination of the Tribunal is that the act, being the grant of Mining Lease M15/1799 to St. Ives Mining Company Pty Ltd, may be done.
Helen Shurven
Member
25 July 2014
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