Tristin Charles Cole v Palyku-Jartayi Aboriginal Corporation RNTBC
[2023] NNTTA 19
•6 June 2023
NATIONAL NATIVE TITLE TRIBUNAL
Tristin Charles Cole v Palyku-Jartayi Aboriginal Corporation RNTBC and Others [2023] NNTTA 19 (6 June 2023)
Application No: | WF2022/0004; WF2022/0005 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Palyku-Jartayi Aboriginal Corporation RNTBC
(native title party)
- and -
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008)
(native title party)
- and -
Tristin Charles Cole
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: | Ms Nerida Cooley |
Place: | Perth |
Date: | 6 June 2023 |
Catchwords: | Native title – future act – s 35 applications for determination – exploration licence applications – uncontested applications – 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: | 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’) |
| Representatives of the native title parties: | Grace Manning-Davis, Arma Legal for Nyamal #1; Sue Maharaj, MacLean Legal for Palyku-Jartayi Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Rhonda Spano, Lawton Macmaster Legal |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Ruth Lavender, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Tristin Charles Cole has applied for the grant of exploration licences E45/5890 and E45/5891 located south-westerly of Marble Bar in Western Australia.
The State of Western Australia initially considered that the expedited procedure under the Native Title Act 1993 (Cth) applied to the grant of the licences. However, the Tribunal’s records show that, in March 2022, the State withdrew the expedited procedure statement for each licence.
Consequently, Mr Cole, the State and the relevant native title parties were required to negotiate in good faith about the grant of the licences in accordance with s 31(1)(b) of the Native Title Act.
The native title parties for E45/5890 are Palyku-Jartayi Aboriginal Corporation RNTBC (PJAC) and the registered native title claimant for the Nyamal #1 native title determination application. Nyamal #1 is also the native title party for E45/5891.
At the time Mr Cole lodged the applications in these matters, seeking a determination from the Tribunal, the parties had not reached any agreement. To their credit, the parties continued to negotiate during the course of these proceedings and Mr Cole has now entered into agreements with both PJAC and Nyamal #1.
Nevertheless, Mr Cole maintains his applications for a determination from the Tribunal because Nyamal #1 and the State have not been able to agree on the terms of an agreement of the kind contemplated in s 31(1)(b) of the Native Title Act, which would enable the grant of the licences to proceed.
The difference now is that, because the native title parties have reached agreement with Mr Cole, they do not oppose his applications. Mr Cole’s applications are also supported by the State.
Having considered the requirements of the Native Title Act, 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. Further, if all parties consent, I need not take into account the matters mentioned in s 39 to the extent they relate to agreed issues. In this case there are no matters in that category and I have considered each of the matters in s 39 as set out below.
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.
For the areas of the Nyamal #1 native title determination application, the registered native title rights and interests are those described in the relevant entry on the Register of Native Title Claims. For the area held by PJAC, the registered native title rights and interests are those described in the relevant entry on the National Native Title Register.
Neither native title party has provided any evidence in relation to the matters listed in ss 39(1)(a) and (b).
Nyamal #1 has submitted a short statement regarding matters in s 39. Nyamal #1 says that 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 Mr Cole, and addressed to its satisfaction in its agreement with Mr Cole.
PJAC has not submitted a statement or any evidence in the inquiry but its legal representative has confirmed in correspondence to the Tribunal that PJAC has entered into a heritage agreement with Mr Cole with respect to E45/5890. I understand PJAC also agrees to the terms of the State’s s 31 deed, but without Nyamal #1’s agreement, E45/5890 cannot be granted on that basis: ss 28(1)(f) and 31(1)(b) Native Title Act.
Mr Cole and the State provided joint statements in respect of each of the licences in which Mr Cole submits that he has entered into separate agreements with PJAC and Nyamal #1 which have addressed the effect of the grant of each licence on the matters in ss 39(1)(a) and (b) to the satisfaction of both native title parties.
In summary, there is no evidence provided by any party about the effect of the licences on the matters in these criteria. The fact that the native title parties have reached agreement with Mr Cole and do not oppose a determination that each licence may be granted, weighs in favour of such a conclusion.
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 previously found the grant of mining tenements will be of economic benefit to the State, as well as to local or regional areas.
Mr Cole 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 Mr Cole, and agrees to me taking it into account. Nyamal #1 has not made any contentions in relation to this criterion.
No evidence is provided to support Mr Cole’s claim and there is also no evidence of any benefit to the native title parties.
The statements accompanying Mr Cole’s licence applications indicate he considers the area of the licences has potential for gold and base metals mineralisation. Those statements also outline Mr Cole’s initial work program and expenditure for year 1 with the potential for future detailed work programs, depending on the initial results.
Overall, on the material before me, there is little I can draw regarding the economic or other significance arising from the licences but I can accept they may generate 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).
Mr Cole 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 Mr Cole, and agrees to me taking it into account. Again, Nyamal #1 has not addressed 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)
As noted, I have taken into account the statements provided by Nyamal #1, Mr Cole and the State, and the fact that both native title parties have reached agreement with Mr Cole.
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?
Mr Cole’s application is unopposed and he has entered into agreements with each native title party. Nyamal #1 has said that its interests are met though its agreement with Mr Cole.
In those circumstances and having regard to my consideration of the matters 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 E45/5890 and E45/5891 may be granted.
Ms Nerida Cooley
Member
6 June 2023
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