Steven Mark Binder & Another v Marjorie May Strickland & Others on behalf of Maduwongga
[2020] NNTTA 28
•5 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Steven Mark Binder & Another v Marjorie May Strickland & Others on behalf of Maduwongga [2020] NNTTA 28 (5 March 2020)
Application No: | WF2019/0005 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Marjorie May Strickland and Others on behalf of Maduwongga (WC2017/001)
(native title party)
- and -
Steven Mark Binder
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 5 March 2020 |
Catchwords: | Native title – future act – future act determination application –application for determination for the grant of mining lease – whether grantee party has negotiated in good faith – grantee party has negotiated in good faith – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect on development of social, cultural and economic structures – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done |
Legislation: | Native Title Act 1993(Cth) ss 29, 30, 31, 35, 36, 38, 39, 151 Mining Act 1978 (WA) ss 74, 75, 78, 82, 85 Mining Regulations 1981 (WA) |
Cases: | Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21(‘Cheinmora v Striker Resources’) Drake Coal Pty Ltd and Another v Smallwood [2012] NNTTA 9; (2012) 257 FLR 276 (‘Drake Coal v Smallwood’) FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another [2020] NNTTA 8 (‘FMG v Yindjibarndi 2019’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (‘Rusa Resources v Gnulli’) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) |
| Representative of the native title party: | Mr Greg McIntyre, S.C. John Toohey Chambers |
| Representative of the grantee party: | Mr Nick Galton-Fenzi |
| Representatives of the Government party: | Mr Domhnall McCloskey, State Solicitor’s Office; Ms Ruth Lavender, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the State of Western Australia (State) may grant mining lease M27/500 (lease) to Steven Mark Binder (Mr Binder) and, if so, whether the grant is to be done subject to any conditions.
The lease is located in the Goldfields region of Western Australia, wholly within the area of the native title determination application filed by the Maduwongga People (WAD186/2017).
In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State gave notice of its intention to grant the lease, with a notification day of 15 November 2017. The negotiation parties, being the State, Mr Binder and the registered native title claimant for the Maduwongga People (Maduwongga), were then required to negotiate in good faith with a view to obtaining Maduwongga’s agreement to the grant of the lease
(s 31(1)(b) NTA).
The parties did not reach agreement and, on 2 September 2019 (being at least 6 months after the notification day), Mr Binder lodged a future act determination application with the Tribunal under s 35 of the NTA, for a determination under s 38 of the NTA. That application was accepted by the Tribunal on 6 September 2019.
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application.
All of the parties have provided evidence and contentions in accordance with the Tribunal’s directions, save that the State elected not to provide material on the issue of good faith, and Maduwongga did not provide contentions in reply on good faith. All parties agree to the matter being determined on the papers and, having reviewed the material, I am satisfied that the issues can be adequately determined without a hearing (s 151(2) NTA).
Maduwongga contends that Mr Binder did not negotiate in good faith but has not satisfied me that is the case. For the reasons set out below, I am satisfied that I have power to determine this matter and have determined that the grant of the lease may be done.
The lease and Mr Binder’s proposed activities
The lease is a mining lease proposed to be granted under s 75 of the Mining Act 1978 (WA) (Mining Act).
As outlined in the State’s contentions, the initial term of the lease is 21 years and under s 78 of the Mining Act it may be renewed. The rights of the holder of a mining lease are set out in s 85 of the Mining Act. In addition, s 82 of the Mining Act, and regulation 28 of the Mining Regulations 1981 (WA) set out certain statutory conditions to which any lease granted will be subject (State’s contentions at paragraphs [20] – [25]).
The State has provided documents in relation to the lease, including mapping, a Tengraph Quick Appraisal, a search of Registered Sites from the Aboriginal Heritage Inquiry System (AHIS) and a draft Tenement Endorsement and Condition Extract which is Annexure 1 to this determination.
The Tengraph Quick Appraisal shows that the lease area is 101.99 hectares and located wholly within the Hampton Hill pastoral lease. Mr Binder currently holds prosecting licences P27/1976 and P27/1985 over the lease area. The Tengraph Quick Appraisal shows these licences were marked out in 2008 and 2009 respectively. Section 39(2) of the NTA requires me to take into account the nature and extent of these non-native title rights and interests and use by persons other than Maduwongga, when determining the effect of the lease on the matters in s 39(1)(a).
In his contentions, Mr Binder says his nominated activities are limited to “prospecting and small scale gravity separation of alluvial gold” and that “it is anticipated that the Lease could be operated up to once a week during favourable seasonal conditions by one to three prospectors.”
Mr Binder has also provided a copy of his mining proposal under s 74 of the Mining Act, dated 23 September 2017. Section 4 of that document includes the following summary of the proposed activities:
• Scrape and detecting activities.
• Auger, Reverse Circulation (RC) and Air Core (AC) drilling.
• Small wet alluvial processing plant via a gravity circuit (water only, no reagent usage).
• Fines storage (wet dam).
• Small accommodation camp (transportable buildings with potable water tank).
• Small laydown area.
The equipment and machinery being used includes, bobcat, loader, backhoe and vehicle mounted auger drilling rigs.
There will be a small wet alluvial processing plant for processing of gold and a small wet dam for fines storage. The life of mine (LoM) is estimated to be ~12 years with potential closure foreseeable in 2030.
There will be no permanent fuel depot or storage on site. No dangerous goods or hazardous substances are being used as part of this operation. All refuelling activities will be via mobile fuel cart.
A 5 person accommodation camp in the form of transportable buildings will be required to house personnel. Transportable sewage facilities are proposed with sewage being pumped out and transported by a licenced waste control contractor to Kalgoorlie-Boulder for disposal at an appropriate waste facility. Similarly, putrescible waste and hydrocarbon contaminated waste for e.g. waste oil, will be collected and transported securely by a licenced waste control contactor to Kalgoorlie-Boulder for disposal at an appropriate waste facility. Recyclable waste will be collected in a small laydown area within the camp footprint and will be re-used where possible, alternatively, recyclable waste will be transported to a recycling facility in Kalgoorlie-Boulder.
No water or electricity from existing grids or mains is required. A small potable water storage tank will be required on site and potable drinking water will be transported from Kalgoorlie-Boulder. Power will be generated through transportable gensets.
The project will employ a workforce of approximately 5 persons during active prospecting operations. Additional drilling contractors will be utilised when necessary. The workforce and contractors live locally and local suppliers will be used where and when available. Inducted and trained mobile plant operators will travel daily to site from Kalgoorlie-Boulder. Operators will understand and comply with all onsite safety, legislative, environmental conditions and requirements. Employees, site operators, visitors and contractors will be familiarised with the requirements of the tenement conditions, this Mining Proposal and the Mine Closure Plan. It is expected that this project will make a long term, positive contribution to the local and regional economy.
The mining proposal further identifies the nominated disturbance parcel as 23.18 hectares out of the total lease area of 101.83 hectares (or 101.99 hectares according to the State’s evidence), although it indicates the actual disturbance area will be approximately 9 hectares.
A preliminary issue: did Mr Binder negotiate in good faith?
I must not make a determination on the application in this matter if Maduwongga satisfies me that the State or Mr Binder did not negotiate in good faith (s 36(2) NTA).
Maduwongga’s contentions and evidence
Maduwongga contends that Mr Binder did not negotiate in good faith. No similar contention is made regarding the State’s good faith and therefore my consideration of the preliminary issue is limited to the negotiations between Maduwongga and Mr Binder.
Maduwongga’s contentions are brief and include a summary of the negotiations between the parties as follows:
1.The Grantee Party (GP) generally acts through an agent, Mr Galton-Fenzi. on 5 November 2017 he met Ms Strickland, a member of the Maduwongga Native Title Applicant group (NTP), and proposed that the NTP sign a State Deed and an agreement. Following the meeting the NTP requested an amount of $50,000 as consideration for the signing of the agreement. Discussions ensued which resulted in the consideration request of the NTP reducing to $12,500.
2.Negotiations continued until 8 June 2018, when the GP decided he could not meet the financial terms the NTP had proposed to have the tenement granted, and the State referred the matter to the Tribunal for mediation assistance pursuant to s 31(3) of the Native Title Act 1993 (Cth).
3.Mediation was convened by the Tribunal in Perth on Thursday 28 February 2019 and Thursday 16 May 2019.
4.The GP prepared a draft agreement document between the parties. The maximum the which the GP offered the NTP was a payment of $1,000 for consent to the grant of the mining lease applied for.
5.The GP indicated that, while the GP was applying for a Mining Lease the GP had no expectation of engaging in any mining which would result in any significant income from mining operations and that was why the GP was not prepared to offer any more compensation for the consent to the grant of the mining tenement. The GP, instead, suggested that there may be some prospect of generating some compensation for the NTP upon the sale by the GP of the tenement or from future production.
6.The NTP indicated that it usually agreed on heritage protection terms and considered preparing an agreement including heritage protection terms, however, ultimately concluded that the preparation of a draft by the NTP of an agreement including heritage terms would incur costs which would far exceed the benefit of $1,000, which was the only benefit of reaching agreement which was being offered on behalf of the GP and so the NTP’s instructions were to not proceed with that drafting.
The evidence provided by Maduwongga in support of its contentions comprises:
(a)a letter from Mr Nick Galton-Fenzi on behalf of Mr Binder to Maduwongga, dated 16 January 2018 (January 2018 Letter);
(b)a draft State Deed; and
(c)a draft “Binder Maduwongga Heritage Agreement”.
The January 2018 Letter provides Maduwongga with information on matters relating to the lease including the proposed work programme, information regarding previous heritage surveys and a map. It states that Mr Binder is “seeking to further engage with the Native Title Claimant/Party to reach agreement in signing the State Deed and nominated Heritage Agreement as provided to the Claimant Party (Marjorie May Strickland) on 05/11/17”.
Maduwongga’s key complaint is that Mr Binder failed to make a reasonable counter proposal and, for that reason, failed to negotiate in good faith. It says that is so, even taking into account that Mr Binder is a “small miner with few resources and limited capacity to make offers or give concessions in relation to a small project” (see DrakeCoal v Smallwood at [85]).
Mr Binder’s contentions and evidence
In his future act determination application, Mr Binder states that Maduwongga was “not willing to negotiate nor sign an agreement with the applicant and there were only demands for a cash settlement”. A timeline of negotiations labelled Stakeholder Register and Dealings (including dates, times, contact details and a summary of each event and outcome) is attached to the application.
Mr Binder also provided contentions on the good faith issue and a copy of email correspondence dated 11 July 2019 from Mr McIntyre SC on behalf of Maduwongga to the Tribunal and parties, regarding the mediation. This letter is discussed further below.
Mr Binder’s contentions state that Mr Galton-Fenzi was appointed on 1 January 2017 as his sole representative and had full authority to act on his behalf in managing the application for the lease and as a negotiator with Maduwongga.
There is minimal documentary evidence provided by Mr Binder to support the timeline of negotiations. However, Maduwongga has not disputed the course of events set out in the timeline, and certain details are supported by the documents provided by both Mr Binder and Maduwongga, and by Maduwongga’s contentions. I have taken the timeline at face value as a summary of the course of negotiations from Mr Binder’s perspective.
The timeline shows, amongst other things, contact or attempted contact between Mr Galton-Fenzi on behalf of Mr Binder and Maduwongga between 5 October 2017 (being shortly prior to the notification day) and approximately 8 June 2018.
The timeline indicates that during October 2017, Mr Galton-Fenzi communicated or attempted to communicate with Maduwongga on nine occasions. This included initial contact to Corser & Corser on behalf of Maduwongga, and subsequently with Ms Marjorie Strickland. During this period the entries indicate that Mr Galton-Fenzi repeatedly requested copies of a ‘Standard Heritage and Mining Agreement for the Maduwongga’.
As set out in Maduwongga’s contentions, a meeting between Ms Strickland and Mr Galton-Fenzi then took place on 5 November 2017. The comments and outcome in the timeline for this meeting read as follows:
Comments
Outcomes
Meeting to present Grantee's Agreement to claimant as claimant had not been able to provide an agreement to date. A copy of the AHIS Search results for M27/500, the Mining, Heritage and Access Agreement and the State Deed were provided by NGF to the Claimant for their consideration. Meeting occurred at Monty's at 10 AM 05/11/17
Provided the State Deed, Agreement and a copy of the AHIS search results. Claimant Group stated that it would cost around $22,000 to do a survey. State Deed would be additional. Marjorie was going to review the documentation and then get back to me. I again requested a copy of their preferred agreement which they could not provide me.
Maduwongga contends that following this meeting it requested an amount of $50,000 as consideration for the signing of the agreement, and then, after further discussions, it reduced its request to $12,500.
However, Mr Binder’s timeline makes no record of an offer of $50,000. It records only that on 6 November 2017, Mr Galton-Fenzi returned a call to Ms Strickland who “advised that she had reconsidered her position and offered a cost of $12,500 for the signing of the State Deed without signing an Agreement”. The stated outcome is that Mr Galton-Fenzi would take this new figure to Mr Binder.
The next entry is 8 November 2017 when Mr Galton-Fenzi called Ms Strickland with a counter-offer:
Comments
Outcomes
Called and emailed to counter offer the $12,500 with $1,000 to pay for costs in signing the Agreement as provided in the meeting on Sunday 5/11/17 and signing the State Deed as provided to us by Faye Mitchell of the DMP. We can provide the funds to you in as a Bank Cheque from the Commonwealth Bank. A copy of the Deed and Agreement was again sent by email. Email bounced from recipient however Marj assures me she is receiving emails. Also offered to negotiate on terms of the Agreement with the inclusion of “The sale of the tenement will not be sold to an ASX listed company without prior consultation with the Maduwongga People (Claim Area WC2017/110 WAD186/2017)” as this was a major concern of hers at Sundays meeting 5/11/17
Claimant stated it was not enough money and was told to go out and secure further finances and get back to her by Monday. She did not provide a new figure as to what else would be considered to be acceptable. I advised that I would seek other financial vendors to try and secure a loan from. Will call Marj this coming Monday to advise her of how we have got on.
The next entries are for 13 November 2017, when Mr Galton-Fenzi responds to Ms Strickland:
Comments
Outcomes
Called to advise claimant that no additional funds were secured to pay for the signing of the State Deed. Still no Agreement provided by claimant either. Phone Call went unanswered and a message was left with Marj's voice mail.
Marj phoned in and I re offered the $2000, advising that no further funding was available for this project. She stated that the offer was too low and that her offer of $12,500 was now off the table. I could call her in another week if I was willing to meet her offer. I advised that we can build her wishes into the agreement however she was more concerned that the $ valuation was not to her expectations for a Mining Lease.
Marj has still yet to provide an agreement and any other documentation other than a verbal demand for $12,500 for signing the State Deed. Show would not consider signing our agreement. She said that she did not wish to conduct a heritage survey and the $12,500 would cover the cost of signing the State Deed only and no Agreement. I would consider this a stall of the private negotiations process and would consider progressing this to mediation.
I take the reference to $2,000 to be mistaken as the previous amount mentioned was $1,000 for costs.
It appears from the timeline that, following this exchange, Mr Galton-Fenzi then contacted the State regarding mediation, which, according to Maduwongga’s contentions, was conducted by the Tribunal in February and May 2019.
The only other communication between Mr Galton-Fenzi and Maduwongga, as recorded on the timeline, were the January 2018 Letter sent to Corser & Corser and the final entry being a call with Ms Strickland on 8 June 2018 as follows:
Comments
Outcomes
Spoke with Marj. She advised that she was not keen to go to mediation and advised that if we wanted to talk, then we should do so. I agreed. She could not recall that I had given her the State Deed or the Agreement in the meeting on 5/11/17 and asked me to resend the documents for her assessment. Marj advised that it would be a week to 10 days for her to get back to me with the thoughts.
NGF resent the following documents; The State Deed, The Agreement, the Heritage search results. Via Email.
Mr Binder contends that all aspects of the agreement were available for negotiation. He says that Maduwongga’s primary concern was a single financial transaction with no underlying agreement. Mr Binder further contends that his representative made counter proposals on numerous occasions inviting Maduwongga to supply an agreement that it considered appropriate, and that this could have included alternative financial terms rather than a lump sum with no agreement.
Mr Binder says that it was the 11 July 2019 email from Mr McIntyre SC to the Tribunal that resulted in the termination of the mediation. That email stated:
I refer to the mediation conference schedule for today at 3pm.
I confirm that no alternative to Mr Galton-Fenzi’s draft agreement has been prepared, including a heritage protocol, as was noted as an expected outcome of the Mediation Conference on 16 May 2019.
Consideration was given to preparing such a draft on behalf of the Maduwongga applicant. It became clear that the preparation of such a draft would incur costs which would far exceed the benefit of $1,000 which was the only benefit of reaching agreement which was being offered on behalf of Mr Binder and so the Maduwongga Applicant’s instructions are not to proceed with that drafting.
In the light of that position, I await advice as to how the Member will proceed in relation to the Mediation.
The email chain provided with the 11 July email shows that the Tribunal vacated the mediation scheduled for that day, and sought the parties’ views on termination of the mediation. I note that the application in this matter was then lodged on 2 September 2019.
Consideration of the preliminary issue
In Rusa Resources v Gnulli at [12]-[16], President Dowsett sets out a useful overview of the established approach to good faith negotiations under s 31, and I adopt that analysis for the purposes of this matter.
To succeed on its argument, Maduwongga must satisfy me that Mr Binder did not negotiate in good faith. That must be viewed objectively having regard to the negotiations as a whole, and may be informed by the conduct of the other parties.
One of the difficulties for Maduwongga in making its case, is that there is very little evidence provided by the parties as to the conduct of the negotiation. The Tribunal takes a common sense approach to the evidence, and it is for Maduwongga to present evidence in support of its case.
While I have taken Mr Binder’s negotiation timeline at face value as showing the course of events from his perspective, it is no doubt a somewhat lopsided account, containing commentary on the engagement with Maduwongga. There is very little in the way of copies of correspondence, and no affidavit from Ms Strickland in relation to her communications with Mr Galton-Fenzi.
Mr Binder’s timeline and his contentions suggest that he had difficulty with two aspects of Maduwongga’s proposal. Firstly, the payment of an amount without an agreement. However, I note that aspect of the proposal is not reflected in Maduwongga’s contentions, which refer to consideration for signing the agreement (as opposed to the State Deed). Secondly, the quantum of any amount to be paid at the time of signing.
Maduwongga says Mr Binder indicated that he had "no expectation of engaging in any mining which would result in any significant income”, which is why he was not prepared to offer any more compensation for consent to the grant of the lease.
In the material provided, there is no evident rationale for any of the amounts requested by Maduwongga and similarly, there is no basis provided for the calculation of Mr Binder’s counter offer.
Mr Binder says that he remained open to other forms of financial benefit to Maduwongga, which is supported by Maduwongga’s contention that “[t]he GP, instead, suggested that there may be some prospect of generating some compensation for the NTP upon the sale by the GP of the tenement or from future production.”
In its contentions, Maduwongga says its response was to indicate that it would usually agree on heritage protection terms and considered drafting such an agreement. However, ultimately, as stated in the 11 July 2019 email to the Tribunal and reflected in Maduwongga’s contentions, it determined that the costs to it to prepare an alternative heritage agreement would have exceeded the $1,000 costs on offer and was, in effect, not worth its while. It is not clear how Maduwongga’s contentions on this point reconcile with its provision of the heritage protocol in the context of s 39(1)(b), as discussed below.
Agreements involving monetary payments as consideration for consent to the grant of a tenement, often coupled with other longer-term benefits, are quite usual. In a case such as this, where Mr Binder apparently had limited capacity to pay any up front consideration, Maduwongga appears to have decided that the cost/benefit analysis of continued participation was not to its favour.
It was no doubt open to Maduwongga to form that view. As President Dowsett noted in Rusa Resources v Gnulli at [92], “all negotiating parties are likely to have significant outgoings in connection with any negotiation”.
However, that does not mean Mr Binder failed to negotiate in good faith. While there do not appear to have been any discussions between the parties as to the basis of calculation of any of the amounts proposed, Maduwongga concedes that Mr Binder was willing to consider alternative benefit arrangements. The parties were participating in mediation by the Tribunal, which may have resulted in the identification of other options. Further, it was Maduwongga, not Mr Binder, which elected not to prepare an alternative agreement as was expected to progress the mediation, and which appears to have led, ultimately, to termination of the mediation.
Based on the evidence provided, and taking account of the whole context of the negotiation, including Maduwongga’s actions, Maduwongga has not satisfied me that Mr Binder did not negotiate in good faith.
Consideration of section 39 criteria
Having found that I have power to determine this matter, I am required to make one of the following determinations:
(a)that the grant of the lease must not be done;
(b)that the grant of the lease may be done; or
(c)that the grant of the lease may be done, subject to conditions to be complied with by any of the parties. (s 38 NTA)
The matters that I must take into account in making a determination are those set out in s 39(1) of the NTA. The NTA 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.)
In this case, there were no issues relevant to s 39 on which the parties agreed (see s 39(4) NTA) and therefore I have considered each of the matters in s 39(1) below.
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Section 39(1)(a)(i) requires me to take into account the effect of the grant of the lease on Maduwongga’s enjoyment of its registered native title rights and interests. In a case such as this, where native title has not yet been determined, the registered native title rights and interests are those recorded on the Register of Native Title Claims kept under the NTA (s 30(3)).
Maduwongga’s registered native title rights and interests are listed on the Register of Native Title Claims and are detailed in Document GVP 6 provided by the State with its book of documents. The list is extensive and does not need to be repeated here.
In order to weigh the effect of the grant of the lease under this criterion, the issue I must first determine is the extent to which the registered native title rights and interests are enjoyed in the lease area (see discussion in FMG v Yindjibarndi 2019 at [47]-[48]).
Maduwongga has not provided any direct evidence of its enjoyment of rights in the lease area. Its evidence consists of an Anthropological and Ethnohistorical Report (Report) by Dr Christine Mathieu, dated August 2016 and revised 2019. According to its terms the Report was prepared to complement an expert anthropological report regarding the Maduwongga native title determination application. The Report states that it “presents factual evidence pertaining to the Claimants right to Native Title according to traditional law and customs as those apply to the Claim Area” (Report Contents page 2).
Maduwongga’s contentions are very brief, at four paragraphs. It submits that the Report “sets out the native title rights and interests, way of life culture and traditions, social, cultural and economic structures, rites, ceremonies, and activities of cultural significance and identified areas and sites of particular significance of the native title party.”
In its reply, the State points out that it is not necessary for Maduwongga to rely on the Report to set out its native title rights because it is the effect of the lease on the registered native title rights and interests that is relevant. That is correct, but even to the extent the Report is intended to evidence the enjoyment of those rights in the lease area, there is little I can usefully glean from it.
The Report is over 200 pages long and includes a range of general information relating to matters such as Maduwongga society, claim boundary, laws and customs and the history of the claim area. While no doubt useful for the purposes for which it was prepared, the Report does not assist me to weigh the impact of the grant of the lease on the registered native title rights and interests.
Maduwongga has not identified any specific parts of the Report relevant to the lease area. The only apparent reference to Hampton Hill appears as a dot on a map at Figure 2 showing the approximate boundaries of the claim area.
Overall, I am unable to draw any conclusions from the Report regarding Maduwongga’s enjoyment of the registered native title rights and interests in the lease area.
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)
From its contention at [58] above, I understand that Maduwongga also relies on the Report in relation to the effect of the grant of the lease on each of these matters, although no specific information relating to the lease area and the effect of the grant of the lease is identified.
Section 39(1)(a)(v) concerns the effect of the proposed lease on “any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions.” This requires the site to be of special or more than ordinary significance to the native title party (Cheinmora v Striker Resources at 34-35).
The AHIS Search provided by the State identifies one registered site in the north-western corner of the lease, which overlaps the lease to a small degree. That site is described as ID 16708 Carouse Dam Access 1 being of an Artefacts/Scatter, Quarry type, with no gender restrictions.
Mr Binder says this site will not be impacted by his activities and Maduwongga will have unimpeded access to it at all times (see Future Act Determination Application and Binder Contentions provided 16 November 2019)
In any event, Maduwongga do not contend that the registered site is of more than ordinary significance to it, and there is no evidence before me to support such a conclusion.
There is nothing before me to indicate that the grant of the lease will have an adverse effect on any of the matters in ss 39(1)(a)(ii)-(v).
Interests, proposals, opinions or wishes of Maduwongga in relation to the management, use or control of land or waters affected by the lease: s 39(1)(b)
Maduwongga says that its concerns relate to the protection of areas of cultural significance and that the areas can only be protected if preceded by heritage surveys conducted in accordance with an agreed protocol, a copy of which is provided.
Apart from expressing its concern regarding entry into the protocol, Maduwongga does not state its expectations for the protocol in the context of this determination. On the face of the protocol it appears to be read in conjunction with an agreement, which has not been provided.
There is no evidence that the protocol was ever provided to Mr Binder for consideration as part of the negotiations in this matter, but having regard to the evidence of the negotiations, it would appear not. Certainly it is open to the parties to agree such a protocol at any time.
Mr Binder says that the lease area has been the subject of previous surveys and the only site found is the registered site mentioned above. His evidence includes a copy of an AHIS search relating to Survey ID 21325, although the mapping provided does not appear to cover the whole of the lease area. There is also an apparent inconsistency with the January 2018 Letter which refers to Report ID 22034. Overall, the relevance of any previous surveys is unclear.
The State argues that Maduwongga’s requirement for a heritage survey is “unthinking” and does not take account of the prospecting activities already undertaken by Mr Binder under his existing tenements and the likely effect of the lease.
However, this criterion relates to Maduwongga’s interests, proposals, opinions or wishes, which are expressed as a concern relating to the protection of heritage by entry into the protocol. The existing tenements and use of the land are matters I am required to consider under s 39(2) when considering the effect of the grant on the matters in s 39(1)(a).
Economic or other significance of the lease: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the lease to Australia, the State, the area in which the lease is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the lease, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175-176).
The State submits that the Tribunal has often found the grant of mining leases will be of economic benefit to the State, as well as local or regional areas. It says that, although it appears the likely benefit will be small, there is no reason why a similar finding should not be made in this case. It argues that the grant of the lease may produce some benefit to the local region, even if it does not produce significant benefits to the nation or State in terms of royalties, employment opportunities and income.
Maduwongga does not contest the State’s contentions on this issue.
Mr Binder says the potential of the area is unknown but notes that the activities are limited to small scale alluvial prospecting activities. I note that the mining proposal outlined above at [13] suggests there will be at least some employment and contracting arising from the grant of the lease.
I accept the State’s contentions and, overall, I am satisfied there will be at least minor economic benefit in the local region and the State from the grant of the lease.
Public interest in the grant of the lease: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to determine whether the proposed future act is ‘in the public interest’. 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 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.
The State submits that the public interest will be served by the grant of the licence given the economic benefits that will accrue at a local level, even if there is no significant benefit at a State or national level. It notes that the Tribunal has repeatedly held that mining and exploration activities are in the public interest for the purpose of this criterion.
Again, Maduwongga does not contest the State’s contentions in relation to the public interest in the grant of the lease. Mr Binder’s contentions do not, relevantly, address this criterion.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry, including in the context of exploration (Western Australia vThomas at 176). In that context, I am satisfied there is public interest in the grant of the lease in this case.
Any other matter the Tribunal considers relevant: s 39(1)(f)
There are no other matters that I consider relevant to my determination in this matter.
Should the lease be granted and, if so, should conditions be applied?
I have weighed the likely effect of the grant of the lease on the matters in
s 39(1)(a) and the concerns of the native title parties at s 39(1)(b), against its economic significance, the public interest in the grant of the proposed tenement and other relevant matters at ss 39(1)(c)-(f).
I am satisfied that the grant of the lease may be done.
No party has requested any conditions be imposed and based on the evidence, I do not consider conditions are required. I have taken into account Maduwongga’s concern regarding the protection of heritage and entry into the agreed protocol but, as noted, the protocol is a document which requires agreement between the parties. It is open to the parties to agree its terms at any time.
Determination
I determine that the grant of mining lease M27/500 to Steven Mark Binder may be done.
Ms Nerida Cooley
Member
5 March 2020
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