True North Resources Pty Ltd v Malarngowem Aboriginal Corporation RNTBC
[2023] NNTTA 21
•19 June 2023
NATIONAL NATIVE TITLE TRIBUNAL
True North Resources Pty Ltd & Anor v Malarngowem Aboriginal Corporation RNTBC & Anor [2023] NNTTA 21 (19 June 2023)
Application No: | WF2023/0007 - 0008 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
True North Resources Pty Ltd
(grantee party)
- and -
Malarngowem Aboriginal Corporation RNTBC (WCD2019/005)
(native title party)
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member Glen Kelly |
Place: | Perth |
Date: | 19 June 2023 |
Catchwords: | Native title – future act – s 35 application for determination – uncontested application – proposed grant of exploration licences – 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 acts may be done |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 37, 38, 39 |
Cases: | Bradley Foster & Ors (Waanyi Peoples) v Copper Strike Ltd & Anor [2006] NNTTA 61 (Foster v Copper Strike) John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 (John v Western Australia) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85(Minister for Lands v Thalanyji) Pearl Gordon & Others on behalf of Malarngowem v True North Resources Pty Ltd and Another [2021] NNTTA 15 (Gordon v True North) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Purdie v Western Australia) Shirley Purdie & Ors on behalf of Yurriyangem Taam v True North Resources Pty Ltd and Another [2021] NNTTA 12 (Purdie v True North) 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: | Scott Howieson and Emma Cahill, 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; Ellise O’Sullivan, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
This decision concerns an application made to the National Native Title Tribunal (Tribunal) by True North Resources Pty Ltd (True North) seeking a future act determination that exploration licences E80/5407 and E80/5414 (proposed licences) may be granted.
The proposed licences are located in the north of Western Australia, approximately 122 – 129 km south to south west of Kununurra.
Malarngowem Aboriginal Corporation holds native title in trust for the Malarngowem People in relation to E80/5407 (see John v Western Australia). Yurriyangem Taam Aboriginal Corporation holds native title in trust for the Yurriyangem Taam People in relation to E80/5414 (see Purdie v Western Australia). I will refer to Malarngowem Aboriginal Corporation and Yurriyangem Taam Aboriginal Corporation collectively as the native title parties.
The State of Western Australia (State), acting through the Department of Mines, Industry Regulation and Safety (DMIRS), gave notice of the grant of the proposed licences in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA). The s 29 notices provided a notification day of 9 October 2019 and 23 October 2019 respectively and included a statement that DMIRS considered the expedited procedure under the NTA applied to the grant of the proposed licences. Member Shurven determined that the expedited procedure statement did not apply to either tenement (see Gordon v True North and Purdie v True North).
Section 31(1)(b) of the NTA requires the parties to negotiate in good faith with a view to obtaining the agreement of (in this case) the native title parties to the grant of the proposed licences. The parties have so negotiated however, have not executed agreements under s 31(1)(b) of the NTA.
True North lodged the future act determination application (application) on 13 March 2023, being greater than 6 months after notification as required by s 35 of the NTA. The application was accepted by the Tribunal on 17 March 2023 and the President of the Tribunal directed me 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 NTA, I have determined the proposed licences may be granted.
Issues for determination
Section 38 of the NTA 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 NTA, I must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made. In its application, True North states that it and the native title parties have reached an agreement on the terms of an ancillary agreement however the terms of a deed in compliance with s 31(1)(b) of the NTA could not be agreed between the native title parties and the State.
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, 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 NTA, 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 the native title parties have reached an ancillary agreement which I have taken into account. This is examined further in the consideration of the s 39 criteria.
The Tribunal Proceedings
The applications were notified on 23 March 2023 and included draft directions for parties to consider prior to the preliminary conference.
On 27 March 2023, in response to the notification, the representative for the State Solicitor’s Office provided information with respect to the proposed licences. This included mapping, heritage and tenure information, draft endorsements and conditions intended to be imposed on the grant of each of the proposed licences, and other associated materials, including the statement required by s 58 of the Mining Act 1978 (WA) (Mining Act) for each of the proposed licences.
The parties attended a preliminary conference on 4 April 2023. At the preliminary conference, the parties confirmed that the future act determination application would be uncontested and the native title parties also advised they would not allege a lack of good faith on the part of True North or the State.
Following the preliminary conference, directions setting the timeline for the inquiry were issued. It was noted to all parties that Direction One had already been complied with by the State per paragraph [14].
On 24 April 2023, the State and True North lodged a joint submission (Joint Submission).
On 26 April 2023, the native title parties jointly lodged their contentions (Native Title Parties Submission).
Details of the Proposed Licences
E 80/5407
This proposed licence is an exploration licence granted under s 57 of the Mining Act. 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.
According to the material provided by the State, the proposed license is approximately 92 km2 in size. The proposed licence is entirely overlapped by the Lissadel pastoral lease.
In its s 58 statement, True North states that the proposed licence has potential for copper, gold, cobalt and nickel extracts and provides a first year exploration budget of $28,000. The s 58 statement also includes a summary of the first year work program and notes that proposed drilling in the second year is dependent on the results from year one.
The Aboriginal Heritage Inquiry System (AHIS) searches provided by the State show three registered Aboriginal sites within the tenement area. Additionally, in Gordon v True North, Member Shurven found there to be places of particular significance in accordance with the traditions of the native title party within the area of the proposed licence.
E 80/5414
This proposed licence is also an exploration licence granted under s 57 of the Mining Act and the same provisions mentioned at [19] apply.
According to the material provided by the State, the proposed license is approximately 56 km2 in size, with underlying land tenure being:
(a)C Class Reserve for the use and benefit of Aboriginal inhabitants;
(b)Doon Doon Pastoral Lease held by the Doon Doon Aboriginal Corporation; and,
(c)Unallocated Crown Land
The s 58 statement for this tenement is substantially similar to that described at [21] for E80/5407, however, the first year budget for this tenement is $20,000.
The AHIS search provided by the State shows one registered Aboriginal site, which overlaps the northern border of the tenement. In addition to this, in Purdie v True North, Member Shurven found there to be a place of particular significance in accordance with the traditions of the native title party.
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 proposed licences: s 39(1)(b)
Section 39(1)(a)(i) relates to the effect of the grant of the proposed licences on the native title parties enjoyment of their registered native title rights and interests. In this case, the registered native title rights and interests are those described in the respective entries for the native title parties on the National Native Title Register (see s 30(3) NTA). Yurriyangem Taam holds exclusive native title over the entirety of E80/5414 while Malarngowem hold non-exclusive native title over the entirety of E80/5407.
The State and True North submit that True North has reached separate agreements with both native title parties regarding the s 39(1)(a) and (b) matters to their mutual satisfaction (Joint Submission [6]).
Regarding s 39(1)(a), the State and True North submit that each of the matters subject to s 39(1)(a)(i)-(v) have been taken into account and addressed by True North in the ancillary agreements with the native title parties (Joint Submission [7]). The native title parties confirm this in their submission (Native Title Parties Submission [6]).
Similarly in relation to s 39(1)(b), the State and True North submit that the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the relevant land and waters have been taken into account and addressed by True North the ancillary agreements (Joint Submission [7]). In their submissions, the native title parties also state that this is the case (Native Title Parties Submission [7]).
Further to this, the native title parties submit that the Tribunal should take into account the fact that agreement has been reached addressing the s 39(1)(a)-(b) criterion (Native Title Parties Submission [8]), to which the State and True North agree (Joint Submission [10]-[11]). I have taken these submissions into account, and the fact that ancillary agreements have been reached between the parties in satisfaction of s 39(1)(a)-(b) as required by s 39(4) of the NTA.
Economic or other significance of the proposed licences: s 39(1)(c)
While the State and True North make submission on s 39(1)(c), the native title parties do not. I can therefore not 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 proposed licences to Australia, the State, the area in which the proposed licences are 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 proposed licences, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas [175] - [176]).
While the native title parties are silent on these topics, True North submits that the grant of the proposed tenement is of economic significance to each area or group set out in s 39(1)(c) (Joint Submission [9]). The State, for its part, says that it relies on the statement made by True North and agrees with this being taken into account by the Tribunal (Joint Submission [11])
While there is no specific evidence regarding any of the potential benefits arising from the grant of the proposed licences 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]).
The material provided by the parties show that some limited rentals will be payable to the State. It is also possible that other benefits may accrue to the native title parties through their ancillary agreements with True North, although I cannot make conclusive statements on this without understanding the content of these agreements. Nevertheless, the native title parties state they do not oppose a determination by the Tribunal (Native Title Parties Submission [9]). Given my previous remarks on the ancillary agreement, this is taken in a positive light.
The material before me provides me with only a limited understanding of the economic or other benefit arising from the proposed licences. Although this is the case, given they are exploration licences and given the lack evidence to the contrary from the native title parties, 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 proposed licences: 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 proposed licences. Minister for Lands v Thalanyji at [266] provides useful commentary on this criteria.
True North submits that the public interest supports the grant of the proposed licence with the State relying on this statement by True North and agreeing it can be taken into account (Joint Submission [10 - 11]). The native titles parties make 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 two exploration licences, in the context of Western Australia v Thomas and given the absence of evidence to the contrary from the native title parties, I am satisfied there is general public interest in the grant of the proposed licences 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 proposed licences 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 proposed licences may be granted.
I have scrutinised the conditions and endorsements which the State proposes to impose on the grant of the proposed licences 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 licences E80/5407 and E80/5414 to True North Resources Pty Ltd may be done.
Mr Glen Kelly
Member
19 June 2023
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