Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Macallum Group Limited
[2018] NNTTA 44
•30 July 2018
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Macallum Group Limited [2018] NNTTA 44 (30 July 2018)
Application No: | WF2018/0003 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2011/002)
(native title party)
- and -
Macallum Group Limited
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Mr J R McNamara |
Place: | Brisbane |
Date: | 30 July 2018 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of exploration licence – uncontested application – parties have not executed a s 31(1)(b) agreement – s 39(4) agreement to be given effect – act may be done |
Legislation: | Native Title Act 1993 (Cth) ss 31, 31(1)(a), 31(1)(b), 36(2), 37(a), 38, 39(1), 39(4) |
| Representatives(s) of the native title party: | Mr Alex Romano, Kimberley Land Council |
| Representative(s) of the grantee party: | Ms Janet Procak, All Mining Legal Pty Ltd |
| Representatives(s) of the Government party: | Mr Domhnall McCloskey, State Solicitors Office Mr Dennis Jacobs, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This determination that the State of Western Australia may grant exploration licence E04/2438 (‘the licence’) to Macallum Group Limited is made in the absence of an agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). The agreement referred to in s 31(1)(b) is the agreement of the native title party to the doing of the proposed act, with or without conditions. Had there been an agreement of that kind, the Tribunal would be barred from making a determination by s 37(a) of the Act.
The licence is 120.969 square kilometres in size and is located in the Shire of Derby-West Kimberley. The licence is located wholly within the native title determination area of the Wanjina-Wunggurr Wilinggin Native Title Determination No 1 (WCD2011/002) and there are no other native title parties for the relevant area. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC is the prescribed body corporate appointed to hold the native title rights and interests on behalf of the Wanjina-Wunggurr Wilinggin people.
The State gave notice of its intention to grant the licence on 27 May 2016 and included a statement that the expedited procedure applied to the grant. The native title party objected to the application of the expedited procedure to the grant of the licence on 22 September 2016 and the matter proceeded to Inquiry before me. On 19 September 2017 I found that the expedited procedure did not apply to the grant of the licence, triggering the right to negotiate process.
A future act determination application in relation to the licence was made by the native title party on 25 May 2018. On 8 June 2018 President John Dowsett AM appointed me to constitute the Tribunal for the purposes of conducting the inquiry and making the determination.
Section 36(2) of the Act prohibits the Tribunal from making a determination where there has been a failure to negotiate in good faith by the grantee party or the Government party. The parties agree that there has been negotiation in good faith.
The native title party and the grantee party submit that they have reached agreement in relation to the grant of the licence. The native title party and the grantee party have executed an agreement regarding the licence. However, the native title party and the State have been unable to agree on the terms of an agreement under s 31 of the Act.
Section 39 criteria
In making a determination, I must have regard to the criteria set out in s 39(1) of the Act. These include the effect of the licence on: the enjoyment by the Wanjina-Wunggurr Wilinggin people of their determined native title rights and interests; their way of life, culture and traditions, the development of their social, cultural and economic structures; their freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Wanjina-Wunggurr Wilinggin people in accordance with their traditions.
I am also required to take into account: the interests, proposals, opinions and wishes of the Wanjina-Wunggurr Wilinggin people in relation to the management, use or control of the land and waters affected by the licence; the economic or other significance to Australia, the State of Western Australia, the area where the licence is located and the Aboriginal peoples who live in that area; and the public interest in the grant of the licence. Lastly, I must take into account any other matter that I consider relevant.
If there are any issues relevant to the determination on which the parties agree, then, in making my determination, with the consent of all parties, I must take that agreement into account. Having regard to such agreement, I need not take into account the matters mentioned in paragraphs [7] and [8] above, to the extent those matters relate to those issues (s 39(4)).
In the circumstances of this uncontested application, I invited parties to confer and confirm the issues they had reached agreement on relevant to the determination, including any conditions to be imposed, and to file a joint statement, if appropriate.
Joint submissions
The parties filed a joint statement setting out the following areas of agreement relevant to the grant of the licence:
(a)the Government party has complied with s 31(1)(a) of the Act which requires it to give the native title party the opportunity to make oral or written submissions to it regarding the act;
(b)the parties have negotiated in good faith in accordance with s 31(1)(b) – see paragraph [5] above;
(c)the native title party and the grantee party have reached agreement regarding the grant and have executed an agreement, however the native title party and the State have been unable to reach agreement under s 31 of the Act – see paragraph [6] above;
(d)the native title party and the grantee party have addressed the effect of the licence regarding each of the matters set out in s 39(1)(a) – (f) of the Act and agree that:
i)the grant will have no significant adverse impacts on the matters set out in s 39(1)(a);
ii)the interests, proposals, opinions and wishes of the native title party in relation to management, use and control of the relevant area have been considered and taken into account by the grantee party (s 39(1)(b));
iii)the grant is of economic significance to Australia, Western Australia, the area in which the licence are located, and the Aboriginal people who live in that area (s 39(1)(c)); and
iv)the public interest supports the grant (s 39(1)(e)).
The native title party and the grantee party consent to me taking into account that they have addressed the matters set out in paragraph [11](d) above to their mutual satisfaction and have reached agreement on those issues. They also consent to me having no further regard to those matters in making my determination.
The Government party relies upon the mutual satisfaction and agreement of the native title party and the grantee party to the matters set out in paragraph [11](d) and also consents to me taking that agreement into account, and having no further regard to those matters.
Implicit in the parties’ joint submission is that there are no other matters parties wish to draw to my attention as being relevant to the determination.
I am also required to take into account the nature and extent of existing non-native title rights and interests and existing uses by persons other than the native title parties. E04/2438 appears to overlap the following areas:
(a)overlap Vacant Crown Land (Parcel ID VCL 303) (by 1.7 per cent);
(b)overlap Vacant Crown Land (Parcel ID VCL 303) (by 6.8 per cent);
(c)overlap pastoral lease N049855 (Napier Downs) (by 91.3 per cent); and
(d)slightly overlap Road Reserve (Napier Downs Road) (by less than 0.1 per cent).
However, in light of the agreement of all parties recorded above, I do not consider the overlap of the listed areas has any relevance to the determination the parties seek.
In joint submissions each party has agreed to, and supports, a determination under s 38 of the Act that E04/2438 may be granted to the grantee party without conditions.
In accordance with that submission, I make the following determination.
Determination
The determination of the Tribunal is that the act, being the grant of exploration licence E04/2438 to Macallum Group Limited, may be done.
J R McNamara
Member
30 July 2018
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