True North Resources Pty Ltd & Anor v Jaru Aboriginal Corporation RNTBC
[2024] NNTTA 16
•11 March 2024
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)
- and -
IN THE MATTER of an inquiry into a future act determination application
Jaru Aboriginal Corporation RNTBC (WCD2018/013)
(native title party)
- and -
True North Resources Pty Ltd
(grantee party)
- and -
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 in good faith with a view to obtaining the agreement of the relevant native title party to the grant of the respective exploration licence. If, after six months, the parties are unable to agree, an application may be made to the Tribunal for a determination that the act of granting the licence may be done.
I must not make a determination on the application in this matter if a native title party satisfies me that the State or the relevant grantee party did not negotiate in good faith (s 36(2) Native Title Act). In this case, Jaru has made no allegation that the State or True North have failed to negotiate in good faith.
True North lodged the future act determination application in accordance with statutory time frames. As no s 31(1)(b) agreement has been made, the application satisfies the requirements of s 35(1) of the Native Title Act. Following acceptance of the application, I was directed by the President of the Tribunal to constitute the Tribunal for the purpose of holding an inquiry into the application.
The application of True North is unopposed. Having reviewed the materials before me and considered the matters set out in s 39 of the Native Title Act, I have determined the licence may be granted.
Issues for Determination
Section 38 of the Native Title Act provides that in determining this application, I am required to make one of the following decisions:
a) the act must not be done;
b) the act may be done; or
c) the act may be done subject to conditions to be complied with by any of the parties.
Pursuant to s 37 of the Native Title Act, I must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made, which in this case, has not. Although in its application True North states that while a deed in compliance with s 31(1)(b) of the Native Title Act could not be agreed to, an ancillary agreement has been reached with Jaru.
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, this will depend on the evidence placed before the Tribunal on each occasion (see Western Australia v Thomas [166]).
Under s 39(4) of the Native Title Act, 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 (see Foster v Copper Strike [27] - [33]).
In this case, True North and Jaru have reached an ancillary agreement which I have taken into account. This is examined further in the consideration of the s 39 criteria.
The Inquiry
At a preliminary conference, the parties confirmed that the application would be uncontested and that Jaru would not allege a lack of good faith on the part of True North and the State. Directions setting the timeline for the inquiry were subsequently issued.
The State provided information resources and lodged a joint submission with True North. True North and the State confirmed they agreed to a determination that the licence be granted and were content for the Tribunal to make the determination on the papers per s 151(2) of the Native Title Act.
Jaru also lodged contentions which neither gave their consent to nor opposed a determination by the Tribunal under s 38 of the Native Title Act.
Details of Licence
The licence is an exploration licence to be granted under s 57 of the Mining Act 1978 (WA). Pursuant to s 61 of the Mining Act, exploration licences are granted for an initial term of five years and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence.
Per True North’s work program provided in the State materials, True North states that the licence has potential for copper, gold, cobalt and nickel and provides an initial exploration budget of $56,000. The work program includes a summary of the first year activities and notes that proposed drilling in the second year is dependent on results from the sampling program in year one.
Materials from the State also show one registered Aboriginal site in the licence area named Tjilatji/Christmas Creek. In Sturt v True North, Member Shurven found this site to be a place of particular significance in accordance with the traditions of Jaru.
Consideration of Section 39 Criteria
a)Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
b)Effect on way of life, culture and traditions: s 39(1)(a)(ii)
c)Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
d)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)
e)Effect on any area or site of particular significance: s 39(1)(a)(v)
f)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 licence: s 39(1)(b)
The State and True North submit that True North has reached an ancillary agreement with Jaru regarding each of the matters set out in s 39(1)(a) and (b) to their mutual satisfaction. This is confirmed by Jaru in their submission.
No express submission is provided by either party in regard to s 39(1)(a)(i)-(v), other than that the components of s 39(1)(a) have been taken into account and addressed in the ancillary agreement.
In relation to s 39(1)(b), the State and True North submit that the interests, proposals, opinions and wishes of Jaru in relation to the management, use or control of the relevant land and waters have also been taken into account and addressed by True North in the ancillary agreement. This is also confirmed by Jaru in their submission.
The State confirms its reliance on the statements of True North in their joint submission and submits that the Tribunal should take those statements into account and have no further regard to the matters set out in s 39(1) of the Native Title Act.
I have taken these submissions into account, and the fact that an ancillary agreement has been reached between the parties in satisfaction of s 39(1)(a)-(b) as required by s 39(4) of the Native Title Act.
Economic or other significance of the licence: s 39(1)(c)
While the State and True North make a submission on s 39(1)(c), Jaru do not. I therefore cannot assume there is agreement in regard to this component of s 39(1) and as such, am required to take into account the economic or other significance of the licence to Australia, the State, the area in which the licence 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 licence, rather than consideration of the significance of exploration or mining generally (see Western Australia v Thomas [175] - [176]).
While Jaru is silent on these topics, True North submits that the grant of the licence is of economic significance to each area or group set out in s 39(1)(c). The State, as mentioned at [22], relies on True North’s statement and agrees with this being taken into account by the Tribunal.
While there is no specific evidence regarding any of the potential benefits arising from the grant of the licence before me, the Tribunal has often found the grant of mining tenure will be of economic benefit to the State, as well as local or regional areas. In doing so, it is acknowledged that in general, exploration activity will provide lesser benefit than productive mining, but may result in productive mining at a future date (Western Australia v Thomas [175]).
It is possible that benefits may accrue to Jaru through their ancillary agreement with True North, although I cannot make conclusive statements on this without understanding the content of the agreement. Nevertheless, Jaru does not consent to or oppose a determination by the Tribunal. Given my previous remarks on the ancillary agreement, the lack of opposing statements is taken in a positive light.
The material before me provides me with only a limited understanding of the economic or other benefits arising from the licence. Although this is the case, given it is an exploration licence that is the subject of this determination and given the lack evidence to the contrary from Jaru, I can accept it may be of at least some benefit to the local region, even if the wider State and national benefits are limited.
Public interest in the grant of the licence: s 39(1)(e)
Section 39(1)(e) requires me to take into account whether there is any public interest in the grant of the licence. Minister for Lands v Thalanyji at [266] provides useful commentary on this criteria.
True North submits that public interest supports the grant of the licence. The State relies on this statement and agrees it should be taken into account by the Tribunal while Jaru makes no submission on this topic.
The Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (see for example Western Australia v Thomas [176]). Although this determination relates only to one exploration licence, in the context of Western Australia v Thomas and given the absence of evidence to the contrary from Jaru, I am satisfied there is general public interest in the grant of the licence 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 licence be granted and, if so, should conditions be applied?
Having regard to my consideration of the matters in s 39, I am satisfied that the licence may be granted.
I have scrutinised the conditions and endorsements which the State proposes to impose on the grant of the licence and have taken these into account in making my decision. As no other condition is proposed by any party, 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 the grant of exploration licence E80/5406 to True North Resources Pty Ltd may be done.
Mr Glen Kelly
Member
11 March 2024
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