Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v New Age Iron Pty Ltd
[2023] NNTTA 22
•22 June 2023
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v New Age Iron Pty Ltd [2023] NNTTA 22 (22 June 2023)
Application No: | WF2023/0005-0006 |
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 -
New Age Iron Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE
Tribunal: | Member G Kelly |
Place: | Perth |
Date: | 22 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: | 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) Barunga v State of Western Australia [2011] FCA 518 (26 May 2011) (Barunga 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) Western Australia v Roberta Vera Thomas & Ors [1996] NNTTA 30 (Western Australia v Thomas) |
| Representatives(s) of the native title party: | Carolyn Ryland, Kimberley Land Council |
| Representative(s) of the grantee party: | Jennifer Johnson, Australian Mining and Exploration Title Services |
| 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 (Tribunal) by New Age Iron Pty Ltd (New Age Iron) seeking a future act determination that exploration licences E04/2701 and E04/2702 (proposed licences) may be granted.
The proposed licences are located in the north of Western Australia, approximately 110 km north-east of Derby. Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (Wanjina-Wunggurr) holds native title in trust for the Wanjina-Wunggurr people (see Barunga v Western Australia). It holds exclusive and non-exclusive native title over portions of both E04/2701 and E04/2702.
The State of Western Australia (State), acting through the Department of Mines, Industry Regulation and Safety (DMIRS), gave notice of the proposed grant of the proposed licences in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA). The s 29 notice provided a notification day of 16 April 2021 and included a statement that DMIRS considered the expedited procedure under the NTA applied to the grant of the proposed licences. On 2 March 2022, the State withdrew the expedited procedure statement in relation to the proposed licences.
Section 31(1)(b) of the NTA requires the parties to negotiate in good faith with a view to obtaining the agreement of the native title party to the grant of the exploration licences. The parties have so negotiated however have not executed an agreement under s 31(1)(b) of the NTA.
New Age Iron lodged the future act determination application (application) on 13 February 2023, being greater than 6 months after notification as required by s 35 of the NTA. The application was accepted by the Tribunal on 23 February 2023 and the President of the Tribunal directed me to constitute the Tribunal for the purpose of holding an inquiry into the application.
New Age Iron’s application 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, New Age Iron states that it and Wanjina-Wunggurr reached 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 Wanjina-Wunggurr 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 as 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, New Age Iron and Wanjina-Wunggurr 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 parties attended a preliminary conference on 28 March 2023. At the preliminary conference, the parties confirmed that the application would not be contested. Wanjina-Wunggurr also advised it would not allege a lack of good faith on the part of New Age Iron or the State. Following the preliminary conference, directions setting the timeline for the inquiry were issued.
On 31 March 2023, the State 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 the proposed licences. Also included were New Age Iron’s application for the proposed licences and the statement required by s 58 of the Mining Act 1978 (WA) (Mining Act) for each exploration licence.
On 28 April 2023 the State and New Age Iron lodged a joint statement (Joint Statement). That same day, Wanjina-Wunggurr lodged its submission (Wanjina-Wunggurr submission).
Details of the Proposed Licences
E04/2701
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, E04/2701 is approximately 164 km2 in size. The underlying land tenure of this proposed licence consists mostly of:
(a)the Yampi Defence Area, a freehold title which extinguishes native title (per schedule three of Barunga v Western Australia); and,
(b)a C class reserve for the use and benefit of Aboriginal people, vested in the Aboriginal Affairs Planning Authority and in which exclusive native title has been determined to exist (per schedule 4 of Barunga v Western Australia).
In its s 58 statement, New Age Iron states that it intends to explore for Iron Ore, Gold, Nickel and Manganese and other commodities. It also includes a proposed work program with a first year expected expenditure of $51,000, however no further information for the following years is provided.
The Aboriginal Heritage Inquiry System (AHIS) searches provided by the State do not show any registered Aboriginal sites nor any ‘Other Heritage Places’ in the area of this proposed licence.
E04/2702
This proposed licence is also an exploration licence granted under s 57 of the Mining Act and the same provisions mentioned at [15] apply.
According to the material provided by the State, E04/2702 covers approximately 173km2. The underlying tenure of this proposed licence consists almost entirely of the Yampi Defence Area with a small portion overlapping the Lalang-garram Marine Park, an area in which native title has been determined as non-exclusive.
In its s 58 statement, New Age Iron states it intends to explore for Iron Ore, Gold, Nickel and Manganese and other commodities. It also includes a proposed work program with a first year expected expenditure of $56,000, however does not include information on its work program beyond this.
The Aboriginal Heritage Inquiry System (AHIS) searches provided by the State do not show any registered Aboriginal sites nor any ‘Other Heritage Places’ in the area of this proposed licence.
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. 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).
New Age Iron submits it has reached agreement with Wanjina-Wunggurr regarding the s 39(1)(a) and (b) matters to their mutual satisfaction, to which Wanjina-Wunggurr concur (Joint Statement [8], Wanjina-Wunggurr submission [4]).
The submissions from each party on these matters are brief, however they show clear concurrence between the parties regarding s 39(1)(a) and (b). The State, for its part, relies on the statements made by New Age Iron and submits the Tribunal should have no further regard to matters outlined in s39(1) (Joint Statement [13]).
Further to this, Wanjina-Wunggurr submits that the Tribunal should take into account the fact that agreement has been reached addressing the s 39(1)(a)-(b) criterion (Wanjina-Wunggurr submission [7]), to which the State and New Age Iron agree (Joint Statement [12]-[13]).
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 NTA.
Economic or other significance of the proposed licences: s 39(1)(c)
While the State and New Age Iron make submissions on s 39(1)(c), Wanjina-Wunggurr do not. Given this, I am unable to assume there is agreement in regard to this component of s 39(1) and am therefore 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]).
New Age Iron 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 Statement [10]). The State, for its part, says that it relies on the statement made by New Age Iron and agrees with this being taken into account by the Tribunal (Joint Statement [13]).
No specific evidence regarding any of the potential benefits arising from the grant of the proposed licences has been submitted beyond these statements. The Tribunal however, 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 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 State shows that some limited rentals will be payable to the State. It is also possible that other benefits may accrue to Wanjina-Wunggurr through its ancillary agreement with New Age Iron, although I cannot make conclusive statements on this without understanding the content of this agreement. Nevertheless, Wanjina-Wunggurr state they do not oppose a determination by the Tribunal (Wanjina-Wunggurr submission [8]), which is taken in a positive light in this area of consideration.
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 the proposed licences are exploration licences and given the lack of evidence to the contrary from Wanjina-Wunggurr, 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.
New Age Iron submits that the public interest supports the grant of the proposed licences (Joint Statement [11]) with the State relying on this statement by New Age Iron and agreeing it can be taken into account (Joint Statement [13]). Wanjina-Wunggurr 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 two exploration licences, in the context of Western Australia v Thomas and given the absence of evidence to the contrary from the Wanjina-Wunggurr, 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 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 E04/2701 and E04/2702 to New Age Iron Pty Ltd may be done.
Mr G Kelly
Member
22 June 2023
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