The Griffin Coal Mining Company Pty Limited v Lorraine Belotti & Ors on behalf of Gnaala Karla Booja
[2019] NNTTA 121
•17 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
The Griffin Coal Mining Company Pty Limited v Lorraine Belotti & Ors on behalf of Gnaala Karla Booja & Anor [2019] NNTTA 121 (17 December 2019)
| Application No: | WF2019/0007 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
The Griffin Coal Mining Company Pty Limited
(grantee party)
- and -
Lorraine Belotti & Ors on behalf of Gnaala Karla Booja (WC1998/058)
(native title party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member JR McNamara |
Place: | Brisbane |
Date: | 17 December 2019 |
| Catchwords: | Native title – future act – proposed grant of mining lease – parties have not executed a s 31(1)(b) agreement – deceased native title applicants – native title decision – s 39 criteria considered – the act may be done |
| Legislation: | Aboriginal Heritage Act 1972 (WA) s 5 Native Title Act 1993 (Cth) ss 29, 31, 35, 38, 39, 62A Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) regs 8, 8A |
| Cases: | Terry David Keyse v Kyburra Munda Yalga Aboriginal Corporation RNTBC and State of Queensland [2019] NNTTA 49 (Kyburra v Keyse) McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172; (2017) 340 ALR 419 (McGlade) Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (Watson v Backreef Oil) |
| Representatives of the native title party: | Mr Peter Nettleton, South West Land & Sea Council Aboriginal Corporation |
| Representative of the grantee party: | Ms Yvette Collins, Hetherington Exploration & Mining Title Services (WA) Pty Ltd |
| Representatives of the Government party: | Ms Faye Mitchell; Department of Mines, Industry Regulation & Safety Mr Domhnall McCloskey; State Solicitor’s Office |
REASONS FOR DETERMINATION
The State of Western Australia (‘the Government Party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant mining lease M12/67 (‘the proposed tenement’) to The Griffin Coal Mining Company Pty Limited (‘the Grantee Party’). The notification date specified in the notice was 4 October 2017. The notice triggered the right to negotiate process.
The proposed tenement is 100.51 ha in size, is located approximately 22 km south east of Collie, and lies within the area of the registered native title claim of Gnaala Karla Booja (WC1998/058) (‘the Native Title Party’). The grant would authorise the Grantee Party to mine for minerals for 21 years from notification of grant and a right of renewal for 21 years.
I am informed that the parties have reached agreement in relation to the grant of the proposed tenement however it has not been possible for the parties to fully execute an agreement of the kind mentioned in s 31(1)(b) because three of the registered applicants comprising the Native Title Party are deceased and have not been removed as applicants.
Tribunal Proceedings
On 9 October 2019 the Grantee Party lodged a future act determination application with the National Native Title Tribunal (‘the Tribunal’) in relation to the grant of the proposed tenement. The application satisfied the requirements under s 35(1) of the Act as it was made more than six months after the grant of the proposed lease was notified, and no s 31(1)(b) agreement has been made.
I was appointed to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application. The decision which I can make in determining the outcome of this inquiry is either that the grant of the mining lease must not be done, the grant may be done, or the grant may be done subject to conditions to be complied with by any of the parties (as outlined in s38 of the Act).
The Tribunal wrote to the parties regarding the matter and convened a preliminary conference on 8 November 2019 where directions were made for the conduct of the inquiry (‘Directions’).
The Directions called for any of the parties who wished to do so to provide to the Tribunal and all other parties a statement relating to the nature of the proposed mining lease, the effect of the grant of the proposed mining lease upon the matters referred to in s 39(1)(a), together with information relevant to my consideration of s 39(1)(b), s 39(1)(c), s 39(1)(e), and s 39(1)(f) of the Act. Should any submitting party propose that the determination of the Tribunal be that the act may be done subject to conditions to be complied with by any of the parties, the Directions also asked that party to provide the proposed conditions along with any reasoning for their inclusion.
Standing of the Native Title Party
As noted, the s 35 application the subject of this inquiry was made by the Grantee Party. A previous s 35 application had been made by the Native Title Party on 8 November 2018. In light of the decision in McGlade, the Tribunal corresponded with the parties and raised a question regarding the ability of the Applicant to make a Native Title decision, including a decision to delegate decision making to a working party, in circumstances where a number of the named applicants were deceased and had not been removed or replaced. In the event the s 35 application was withdrawn by the Native Title Party on 4 December 2018. In the current inquiry the s35 application was made by the Grantee Party so the question concerning standing in relation to the making of the application does not arise.
Recently I considered issues concerning the making of a ‘Native Title decision’ in the context of a registered native title body corporate (‘RNTBC’) in Kyburra v Keyse. In the case of an RNTBC as noted in that decision, the rule book of the Corporation and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (‘PBC Regulations’) define ‘Native Title decision’.
In the circumstances of a native title claim, s 62A provides that the applicant may deal with all matters arising under the Act in relation to the application – such as filing the application, applying for leave to amend, filing a notice of change of solicitor, and applying for leave to discontinue. Section 62A makes no reference to future act agreements (s 31 agreements) and the Act does not contain any explicit requirement for the approval of the claim group – although an approach consistent with the post-determination requirement in Regulation 8 would presumably be acceptable.
By way of reference, in Kyburra v Keyse at [19] I noted that ‘Native Title decision’ is defined in the PBC Regulations to mean a decision to ‘… do, or agree to, any other act that would affect the native title rights and interests of the common law holders.’ I noted that Regulation 8 and 8A would require the RNTBC for a native title decision to consult with, and obtain the consent of, the common law holders in accordance with that regulation unless the RNTBC’s constitution provides for a different consultation process to which the common law holders have consented. Further, pursuant to Regulation 9 evidence in the form of a certified document confirming consultation and consent is necessary.
In this matter the material lodged in accordance with the Directions included the Joint Submission of the Grantee Party, Native Title Party and Government Party dated 4 December 2019. The document is signed on behalf of the Native Title Party by the South West Aboriginal Land and Sea Council Aboriginal Corporation.
The following passage in the Joint Submission is relevant at this point:
[3] …it has not been possible to fully execute an agreement under section 31 of the NTA … because three of the registered applicants comprising the Native Title Party are deceased and have not been removed as registered applicants. However, the surviving registered applicants have delegated their authority to the Gnaala Karla Booja Working Party which in turn has authorised the making of this joint submission. A copy of their delegation of authority and an extract from the Working Party minutes dated 13 March 2019 is lodged with this joint submission.
The statement suggests that in the ordinary course the registered applicants are authorised to make submissions in a future act inquiry. It is not asserted that the making of submissions is a Native Title decision of the kind referred to above. The submissions acknowledge that there is agreement regarding the grant of the proposed tenement – and expresses a view regarding the s 39 criteria which will be considered below.
In the circumstances, and in the absence of some credible suggestion that it is not appropriate to do so, I have decided to take into account the contribution to the Joint Submission made by the Native Title Party.
Conditions
As noted above, a copy of the delegation of authority and an extract from the Working Group Minutes dated 13 March 2019 was attached to the Joint Submission. The Minutes record a resolution as follows:
Resolution: The Gnaala Karla Booja (GKB) Working Party:
a)acknowledges that Clause 5 of Community Partnership Agreement with Griffin Coal Mining Company Pty Limited (Grantee Party) dated 16 August 2016 (Agreement) applies in relation to mining tenement application M12/67 as notified by DMIRS on 4 October 2017;
b)authorizes and supports a Section 35 NTA Application by the South West Aboriginal Land and Sea Council (SWALSC) for a determination that M12/67 be granted to the Grantee Party, subject to the provisions of the Agreement entered into by the GKB and the Grantee Party; and
c)instructs the SWALSC Legal Officer to take such other actions as maybe necessary to facilitate the grant of M12/67 in favour of the Grantee Party
The resolution was carried unanimously.
In relation to b), in the event the s 35 application was made by the Grantee Party, not by SWALSC. However, the second part of the instruction was to seek a determination ‘subject to the provisions of the Agreement entered into by the GKB and the Grantee Party’.
As noted earlier, the decision which I can make in determining the outcome of this inquiry is either that the grant of the mining lease must not be done, the grant may be done, or the grant may be done subject to conditions to be complied with by any of the parties (as outlined in s 38 of the Act).
The Directions at 2(g) allowed for a submitting party to propose that the determination of the Tribunal be that the act may be done subject to conditions to be complied with by any of the parties. The Direction also called for any proposed conditions to be provided along with any reasoning for their inclusion.
The Joint Submission at paragraph [10] says:
The Native Title Party, Grantee Party and Government party unequivocally support a determination under s 38 of the NTA that the Mining Lease may be granted to the Grantee Party without conditions.
Based on the clear and unambiguous terms of paragraph [10], and in the context of the Joint Submission as a whole, I am satisfied it is the view of the parties that they favour a determination that the act may be done without conditions.
Criteria for making arbitral body determination
Central to the scheme by which the Tribunal makes a determination about whether the future act may be done, with or without conditions, or must not be done, are the requirements of s 39 of the Act. Subsections (1) and (2) of that section provide a list of the criteria the Tribunal must take into account when making its decision. I consider each criteria in detail later in these reasons.
The Tribunal’s task involves weighing the various criteria in s 39 by giving proper consideration to them on the basis of evidence. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. The Act does not direct that greater weight be given to some criteria over others. The Tribunal undertakes the task set by s 39 by considering ‘each of the criteria … individually’ in light of the evidence and the submissions made by each party to the inquiry in relation to that criterion, and then engages in a ‘weighing process’ before making its determination: Watson v Backreef Oil at [27]-[28] per Siopis J.
Findings on the Section 39 criteria
As has been noted, I have taken into account the contribution to the Joint Submission made by the Native Title Party on the understanding it does not constitute a ‘Native Title’ decision.
Section 39(1)(a)(i)) – effect on the enjoyment by the native title party of their registered native title rights and interests
Section 39(1)(a)(ii) – effect on the way of life, culture and traditions of the native title party
Section 39(1)(a)(iii) – effect on the development of social, cultural and economic structures of the native title party
Section 39(1)(a)(iv) – effect on the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other ctivities of cultural significance on the land or waters in accordance with their traditions
Section 39(1)(a)(v) – effect on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions
Section 39(1)(b) – the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters what will be affected by the act
Section 39(2) – nature and extent of existing non-native title rights and interests in relation to the land or waters concerned; and existing use of the land or waters concerned by persons other than the native title parties
Section 39(2) directs that, in considering s 39(1)(a), the arbitral body must take into account the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters concerned by persons other than the native title parties.
The Government party has provided a range of searches which indicates that 62.04% the proposed tenement would encroach on an area of Reserve land referred to as State Forest Muja and 37.17% ‘Freehold Transfer Land act’ land the responsibility of Landgate. The entire area is subject to Gnaala Karla Booja Indigenous Land Use Agreement (WI2015/005).
The ‘Mineralisation Report in support of the Mining Lease Application, Muja South, part of E12/1. April 2017’ (‘Mineralisation Report’) informs me that the proposed tenement is currently within exploration lease E12/1. The report says that exploration and mining activities within the area of the Muja South Project have been ongoing since the late 1800’s and that drilling within the proposed tenement area was undertaken between September 1950 and 2015.
A copy of a 2016 Community Partnership Agreement between Griffin Coal Mining Company Pty Limited and Gnaala Karla Booja was provided with the Joint Submission.
The Joint Submission acknowledges the Community Partnership Agreement and says that ‘it has not been possible to fully execute an agreement under section 31 of the NTA … because three of the registered applicants comprising the Native Title Party are deceased and have not been removed as registered applicants. The Government Party provided search results from the Department of Births Deaths and Marriages which confirms the details of the three deceased persons.
The Joint Statement records at [6] that the Grantee Party and the Native Title Party rely on the Community Partnership Agreement in their agreement that:
a. the grant of the Mining Lease will have no significant adverse impacts on:
i.the Native Title Party’s exercise of their registered native title rights (and) interests;
ii.the Native Title Party’s way of life, culture and traditions;
iii.the development of the Native Title Party’s social, cultural and economic structures;
iv.the Native Title Party’s freedom of access 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 and waters concerned of particular significance to the Native Title Party;
b. the interests, proposals, opinions and wishes of the Native Title Party in relation to the management, use or control of the relevant land and waters have been considered and taken into account by the Grantee Party;
c. the grant of the Mining Lease is of economic significance to Australia, the State of Western Australia, the area in which the Mining Lease is located and the Aboriginal people who live in that area; and
d. the public interest supports the grant of the Mining Lease.
The agreement concerns the mining operations of the grantee Party in the agreement area. The agreement area encompasses the proposed tenement area. The agreement relates to existing projects, new projects and ancillary activities. The agreement provides that subject to the Grantee Party complying with the terms of the agreement, the Gnaala Karla Booja consents to, and supports and will not object to, the Project.
The material provided indicates to me that there is a common understanding regarding the factors in s 39(1). I find the grant of the proposed tenement is unlikely to affect the enjoyment by the native title parties of their registered native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures; and freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance.
In evaluating the criteria outlined in ss 39(1)(a)(v) and 39(1)(b), I have taken into account the arrangements outlined in the Community Partnership Agreement regarding the management of cultural heritage. AHIS search results record one registered site within the proposed tenement area. The report was created on 13 November 2019. The site is referred to as ‘Collie River Waugal’ its ‘type’ is said to be ‘Mythological, Natural Feature, Water Source’ and its coordinates are provided. As a registered site the place has been assessed as meeting Section 5 of the Aboriginal Heritage Act 1972 (WA). Under the heading ‘South West Settlement ILUA Disclaimer’ is the following note:
Your heritage enquiry is on land within or adjacent to the following Indigenous Land Use Agreement(s): Gnaala Karla Booja People ILUA.
…
The ILUAs bind the parties (including ‘the State’), which encompasses all State Government Departments and certain State Government agencies) to enter into a Noongar Standard Heritage Agreement (NSHA) when conducting Aboriginal Heritage Surveys in the ILUA areas. It is recommended a NSHA is entered into, and an ’Activity Notice’ issued under the NSHA, if there is a risk that an activity will ‘impact’ (i.e. by excavating, damaging, destroying or altering in any way) an Aboriginal heritage site. The Aboriginal Heritage Due Diligence Guidelines, which are referenced by the NSHA, provide guidance on how to assess the potential risk to Aboriginal heritage.
Likewise, from 8 June 2015 the Department of Mines, Industry Regulation and Safety (DMIRS) in granting Mineral, Petroleum and related Access Authority tenures within the South West Settlement ILUA areas, will place a condition on these tenures requiring a heritage agreement or a NSHA before any rights can be exercised.
…
The Government Party has not stated that a condition ‘requiring a heritage agreement or a NSHA before any rights can be exercised’ will be placed on the grant of the proposed tenement – although there is a clear commitment to do so and I proceed on the understanding that the condition will be imposed. The imposition of such a condition assists me in my consideration of impacts relevant to s 39(1)(a)(v). I find that the interests, proposals, opinions or wishes of the Native Title Party, to the extent they can be discerned, have been taken into account by the Grantee Party.
Section 39(1)(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
Section 39(1)(e) – any public interest in the doing of the act
Section 39(1)(c) requires me to take into account the economic or other significance of the grant of the mining claims to Australia, the State of Queensland, the area in which the land concerned is located and Aboriginal peoples who live in that area. I am also required to consider any public interest in the granting of the mining claims (s 39(1)(e)).
The Mineralisation Report notes that the Grantee Party considers there are significant coal deposits within the tenement application area which is adjacent to the Muja South Project. That conclusion is supported in the JORC compliant resource estimate. This suggests to me that there is economic significance and public interest in the grant of the proposed tenement.
Section 39(1)(f) – any other matter the Tribunal considers relevant
I have referred to the Community Partnership Agreement, and broadly some of the matters addressed in that agreement.
Conclusion
After taking into account the effect of the grant of the proposed tenement on the matters outlined in s 39(1), I conclude the act may be done.
Determination
The determination of the Tribunal is that the act, being the grant of Mining Lease 12/67 to The Griffin Coal Mining Company Pty Limited, may be done.
JR McNamara
Member
17 December 2019
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