True North Resources Pty Ltd & Anor v Jaru Aboriginal Corporation RNTBC - [2024] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

True North Resources Pty Ltd & Anor v Jaru Aboriginal Corporation RNTBC [2024] NNTTA 16 (11 March 2024)

Application No:

WF2023/0015

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Jaru Aboriginal Corporation RNTBC (WCD2018/013)

(native title party)

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True North Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Member Glen Kelly
Place:	Perth
Date:	11 March 2024

Catchwords:	Native title – future act – s 35 application for determination – uncontested application – proposed grant of exploration licence – ancillary agreement executed by native title party and grantee party – terms of s 31 deed unable to be agreed – consideration of s 39 criteria – taking into account matters agreed by the parties – economic significance of exploration licences – public interest in maintaining a viable mining industry – proposed future act may be done
Legislation:	Mining Act 1978 (WA) ss 57, 61, 66 Native Title Act 1993 (Cth) ss 31, 35, 36, 38, 39, 151
Cases:	Barbara Sturt & Ors on behalf of Jaru v True North Resources Pty Ltd and Another [2021] NNTTA 18 (Sturt v True North) Bradley Foster & Ors (Waanyi Peoples) v Copper Strike Ltd & Anor [2006] NNTTA 61 (Foster v Copper Strike) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85(Minister for Lands v Thalanyji) Sharpe v State of Western Australia [2013] FCA 599 (Sharpe v Western Australia) Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 (Sturt v Western Australia) Western Australia v Roberta Vera Thomas & Ors (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas)
Representatives(s) of the native title party:	Maddy Wonders, Kimberley Land Council

Representative(s) of the grantee party:

Yvette Collins, TG Mining Title Services Pty Ltd

Representatives(s) of the Government party:

Dennis Jacobs, Department of Mines, Industry Regulation and Safety
Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

Background

This decision concerns an application made to the National Native Title Tribunal by True North Resources Pty Ltd seeking a future act determination that exploration licence E80/5406 may be granted.
The licence is located in Western Australia’s Kimberley region, approximately 120 km south-west of Halls Creek. Jaru Aboriginal Corporation RNTBC holds native title in trust for the Jaru People over approximately a third of the licence area (see Sturt v Western Australia).
In Sturt v True North, Member Shurven determined that the expedited procedure did not apply to the grant of the licence and the parties were instead required to negotiate pursuant to s 31 of the Native Title Act 1993 (Cth).
Section 31(1)(b) of the Native Title Act requires the parties to negotiate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: True North Resources Pty Ltd & Anor v Jaru Aboriginal Corporation RNTBC [2024] NNTTA 16
Case: [2024] NNTTA 16
Decision Date: 11 March 2024

CaseChat Overview and Summary

In the Federal Court of Australia, True North Resources Pty Ltd and another party brought an application against the Jaru Aboriginal Corporation RNTBC under section 35 of the Native Title Act 1993. The application sought a determination regarding a future act, specifically the grant of an exploration licence, in relation to native title land. The Jaru Aboriginal Corporation RNTBC did not oppose the application, and an ancillary agreement was executed between the parties. However, the parties could not agree on the terms of a section 31 deed, leading to the court's involvement.

The central legal issue before the court was whether the proposed grant of the exploration licence constituted a future act that could be done, given the inability of the parties to reach an agreement on the section 31 deed. The court had to consider the criteria set out in section 39 of the Native Title Act 1993, which requires the court to take into account any matters agreed upon by the parties, the economic significance of the exploration licences, and the public interest in maintaining a viable mining industry.

In its reasoning, the court found that despite the parties' inability to agree on the section 31 deed, the proposed future act—the grant of the exploration licence—could still be done. The court considered the economic significance of the exploration licences, which was substantial, and the public interest in maintaining a viable mining industry. The court concluded that the proposed future act could be done under the circumstances, taking into account the agreed matters and the importance of the exploration licences.

The court ordered that the proposed future act—the grant of the exploration licence—could proceed, despite the unresolved section 31 deed. The terms of the section 31 deed were to be determined by the court in a subsequent proceeding.

Orders