Western Australia/Amangu People/Mullewa Wadjari Community/Dynasty Metals Australia Ltd
[2012] NNTTA 78
•9 July 2012
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Amangu People/Mullewa Wadjari Community/Dynasty Metals Australia Ltd, [2012] NNTTA 78 (9 July 2012)
Application Nos: WF12/1 and WF12/2
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
The State of Western Australia (Applicant/Government party)
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Amangu People (WC04/02) (Amangu native title party)
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Mullewa Wadjari Community (WC96/93) (Mullewa Wadjari native title party)
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Dynasty Metals Australia Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 9 July 2012
Catchwords: Native title – future acts – application for determination for the grant of petroleum exploration permit applications – Mullewa Wadjari named applicants signed state deeds – Mullewa Wadjari native title party consents to the determination – s 39 criteria considered – effect on registered Amangu native title party native title rights and interests – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of Amangu native title party – economic or other significance of acts – public interest in doing of acts – any other matters the Tribunal considered relevant – determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38
Petroleum and Geothermal Energy Resources Act 1967 (WA),
ss 38, 95
Environmental Protection Act 1986 (WA)
Aboriginal Heritage Act 1972 (WA)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
Cases:Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387
Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690
Doxford & Ors, Re [2003] QLRT 58
Evans v Western Australia (1991) 77 FCR 193
Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274
Neowarra v State of Western Australia [2003] FCA 1402
Ward and Others v State of Western Australia and Another (1996) 69 FCR 208
Western Australia v Thomas and Others (1996) 133 FLR 124
Western Australia v Ward [2002] HCA 28; 213 CLR 1; 191 ALR 1; 76 ALJR 1098 (8 August 2002)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169
WMC Resources and Another v Evans (1999) 163 FLR 333
Hearing date: Determined on the papers
Representatives of the Mr Ian Repper, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Mines and Petroleum
Representatives of the Mr Ryan Eaton and Mr Cameron Trees
Amangu native title party: Yamatji Marlpa Aboriginal Corporation
Representative of the
Mullewa Wadjari Mr Ronald Bower, Corsers Lawyers
native title party:
Representative of the
grantee party: Mr David Jenkins, Dynasty Metals Australia Ltd
REASONS FOR FUTURE ACT DETERMINATION
Background
On 27 January 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act, NTA) of future acts, namely the grant of Petroleum Exploration Permit applications 31/07-8 and 32/07-8 (the proposed permits) to Dynasty Metals Australia Ltd (the grantee party). Such grants are issued pursuant to the Petroleum & Geothermal Energy Resources Act 1967 (WA).
Petroleum Exploration Permit application 31/07-8 (proposed permit 31) comprises some 452.7 square kilometres being 6 graticular blocks located approximately 14 kilometres northwest of Mullewa in the Shires of Mullewa and Chapman Valley. Petroleum Exploration Permit application 32/07-8 (proposed permit 32) comprises some 673.3 square kilometres being 11 graticular blocks located approximately 15 kilometres northwest of Three Springs in the Shires of Mullewa, Morawa, Mingenew and Three Springs.
At the conclusion of the s 29 notice period (27 May 2010), the native title claims of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996) and the Amangu People (WC04/2 – registered from 3 March 2005) overlapped the proposed permits, were on the Register of Native Title Claims and remain on the Register. The native title claim of the Widi Mob (WC97/72, registered from 12 December 2011) also overlaps the proposed permits, however, at the conclusion of the s 29 notice period, the Widi Mob was not a registered native title claim and, therefore, the applicant for that claim cannot be a native title party to these proceedings (pursuant to s 30(1)(a) of the Act).
To the extent that each overlap the proposed permits, the Mullewa Wadjari and Amangu are native title parties to these proceedings. The Mullewa Wadjari native title party’s claim overlaps proposed permit 31 at 100 per cent and proposed permit 32 at 39 per cent. The Amangu native title party’s claim overlaps proposed permit 31 at 93.9 per cent and proposed permit 32 at 100 per cent.
On 31 January 2012 and 6 February 2012, being, respectively, dates more than six months after the s 29 notice was given, the Government party made applications pursuant to s 35 of the Act for a determination under s 38 of the Act (the s 35 applications) in relation to proposed permits 31 and 32, designated Tribunal number WF12/1 and WF12/2 respectively. Paragraph 10 of each s 35 application states ‘[i]n April 2012, the Government party referred the [proposed permit] application to the National Native Title Tribunal (NNTT) for mediation assistance’. In relation to the Amangu native title party, the Government party stated ‘there has been limited progress made towards agreement’. In relation to the Mullewa Wadjari native title party, the Government party stated it was ‘currently in the process of executing a .... State Deed [s 31(1)(b) agreement]’.
On 7 February 2012, I was appointed as Member to conduct an inquiry into the s 35 applications.
On 21 February 2012, the legal representative for the Mullewa Wadjari native title party advised via email that a s 31(1)(b) agreement (State Deed) for each of the proposed permits had been signed by each of the persons comprising the native title party and forwarded to the Tribunal. On this basis, the representative advised ‘our clients, the Mullewa Wadjari native title party, have instructed us that they consent to the Determination’ and requested confirmation that their attendance in the proceedings would not be required. On 22 February 2012, a State Deed for each of the proposed permits, signed by the grantee party, the Government party and the Mullewa Wadjari native title party were lodged with the Tribunal in accordance with s 41A of the Act. I am satisfied that the State Deeds are evidence of the Mullewa Wadjari native title party’s consent to the determination, and as such the Mullewa Wadjari native title party were advised that they were not required to participate in the proceedings.
On 28 February 2012, a preliminary conference was held at which the Government party, the grantee party and the Amangu native title party were represented. The Amangu native title party representative advised that a meeting would be held with their client on 22 March 2012 to attempt to negotiate an agreement with the grantee party, who would attend the meeting. Both representatives confirmed their clients’ intent to reach agreement rather than proceed to an inquiry before the Tribunal. In the event that no agreement could be reached, the Amangu native title party representative advised he would seek instructions on the s 35 applications at the meeting, namely whether any submissions would be made regarding a s 36(2) negotiation in good faith inquiry and/or a s 39 inquiry. With agreement from all parties, I ordered a directions hearing to be held on 27 March 2012 to confirm if the Amangu native title party would take issue with good faith and to make directions for a s 39 inquiry. In the event that the Amangu native title party did take issue with good faith, and again with the agreement of all parties, I made directions for a s 36(2) negotiation in good faith inquiry, requiring the Amangu native title party to lodge its submissions by 29 March 2012, the Government and grantee parties to lodge their submissions by 5 April 2012, the Amangu native title party to lodge any reply by 11 April 2012, and a hearing (if deemed necessary) to be held in the week commencing 16 April 2012.
On 29 February 2012, draft directions for a s 39 inquiry were emailed to the Government, grantee and Amangu native title parties, which were to be discussed and finalised at the directions hearing scheduled for 27 March 2012. Amongst other things, the draft directions proposed that the Government and grantee parties lodge their s 39 submissions by 30 April 2012 and the Amangu native title party lodge their s 39 submissions by 25 May 2012.
On 26 March 2012, the Amangu native title party representative advised via email:
I confirm that the Amangu Working Group considered this matter at length at the meeting on Thursday 22 March 2012 (with Dave Jenkins on behalf of Dynasty in attendance).
The Group instructed that they intend on contesting the grant of the tenements on some of the grounds set out in S.39 of the Native Title Act. The Group do not intend to contest the grant of the Tenements on the “good faith” grounds.
In the absence of a good faith challenge, I am of the opinion that the Tribunal has power to conduct the Inquiry and make a Determination.
The Amangu native title party representative advised that he would be unavailable for the directions hearing scheduled for 27 March 2012, but that another Amangu representative would attend in his absence. He also advised that he would be on annual leave between 2 April and 20 April 2012 and that owing to workload issues, ‘there will be nobody else to address this matter in my absence. I thus request that the dates set out in the Draft Directions relevant to the S.39 criteria ... be implemented as they currently read.’
On 27 March 2012, a directions hearing was held, attended by Government and grantee party representatives and another Amangu native title party representative. The above email from the Amangu native title party representative and the dates proposed in the draft directions for a s 39 inquiry were discussed and agreed to by all parties. Accordingly, I vacated the previous directions for a s 36(2) negotiation in good faith inquiry and made directions for a s 39 inquiry in line with the draft directions. The Government and grantee parties were required to lodge their s 39 submissions by 30 April 2012, the Amangu native title party to lodge their s 39 submissions by 25 May 2012, party inspection and conferral to occur by 1 June 2012, with a listing hearing on 5 June 2012 and a hearing in the week commencing 18 June 2012.
Grantee Party s 39 Submissions
On 2 May 2012 the grantee party lodged its submission. No objections were received in relation to the submission being two days past the due directions date, and taking into account section 109 of the Act, the submissions were accepted. The grantee party outlined that they received ‘limited information from the Native Title Party as to the effect of any of the Exploration Permits on the factors identified in section 39 (1)(a) of the Native Title Act’. The grantee party referred to a verbal statement made by the native title party representative during the course of these proceedings which referred to ‘a concern any fraccing in the area may affect aquifers in the area’. The grantee party addresses these concerns in its written submission by stating:
· that application of any fraccing techniques will only be undertaken ‘once all required approvals and consultations have taken place’
· their intention to preserve any heritage sites
· they will ‘comply with all requirements for approvals for exploration including all environmental protection’
· that the planned activity was ‘relatively low impact diamond drilling in the first phases of exploration’, and went on to state that they consider there is ‘likely to be no impact to the Native Title Party’s ability to access their Native Title Rights and interests and would not object to specific conditions being set in this regard’ (emphasis added).
Government Party s 39 Submissions
On 1 May 2012, the Government party lodged its contentions and supporting documents. No objections were received in relation to the submission being a day past the due directions date, and taking into account section 109 of the Act, the submissions were accepted. In paragraphs relating to tenure, the Government party notes:
11.The area of Permit 31 is 45,273.51 ha and is predominately, but not entirely, freehold land in private ownership. Significant other tenures include:
(a) General Lease J473185, which overlaps 1.1% (520.28 ha) of Permit 31;
(b) Class C Reserve 36388 for Conservation of Flora and Fauna, which overlaps 8.3% (3738.52 ha) of Permit 31;
(c) Class C Reserves 150 and 12723, for Water, which overlap 0.9% (385.14 ha) and 0.3% (121.37 ha) respectively of Permit 31; and
(d) Unallocated Crown land of some 600 ha (less than 1.5% of the area of Permit 31).
12.The area of Permit 32 is 67,328.70 ha and is predominately, but not entirely, freehold land in private ownership. Significant other tenures include:
(a) Purchase Leases I137454, I137459 and I180993, which overlap 1.2% (836.54 ha), 1.3% (886.81 ha) and 1.2% (780.48 ha) of Permit 32; and
(d) Unallocated Crown land of approximately 100 ha (approximately 0.1% of the area of Permit 32).
Given this, the Government party contends:
13.By virtue of the above land tenures, and the operations of sections 23A and 23B of the NTA, it is likely that native title rights and interests have been extinguished over the vast majority of the area of the exploration permits.
The standard conditions which the Government party states it proposes to impose on the petroleum exploration permits include that the grantee party ‘shall not commence any works or petroleum exploration operations in the permit area except with, and in accordance with the approval in writing of the minister’ (at 45 and Annexure 26).
The endorsements upon which the permits will be granted (at Annexure 26) are as follows:
1. In addition to any specific conditions that are endorsed on this instrument, the holder in exercising the rights granted herein must first ensure that all necessary consents and permissions have been obtained and applicable compensation has been agreed to or determined and that consultation has occurred where the lawful rights of other land users and occupiers are concerned so that the activities of those other land users and occupiers are not interfered with to greater extent than is necessary for the reasonable exercise of the rights and performance of the duties of the holder of this exploration permit.
2. The permittee’s attention is drawn to the provisions of division 3A of the Act which provides for petroleum and geothermal titles to subsist in respect to the same blocks.
3. The permittee’s attention is drawn to the provisions of the Aboriginal Heritage Act (1972).
The Government party states (at 51) that the Schedule of Onshore Petroleum Exploration and Production Requirements 1991 (amended 21 May 2010) is to be imposed on these permits, as it is on every exploration permit by directions made by the Minister pursuant to s 95 of the Petroleum and Geothermal Energy Resources Act 1967 (WA).
The Government party (at Annexure 36 and for example at paragraphs 70, 72 and 76) outline four extra conditions which they state should not be imposed unless justified by ‘substantial, credible evidence provided by the NTP (native title party)’. It is important to note that conditions must be justified on the evidence, rather than there being any requirement for ‘substantial’ evidence in relation to the consideration of imposing conditions.
These extra conditions are as follows:
· Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the petroleum title is not to be restricted except on relation to those parts of the land which are used for exploration or production operations or for safety or security reasons relating to those activities.
· If the grantee party gives a notice to the Aboriginal Cultural Material Committee under Section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
· Where the grantee party submits to the Executive Director, Petroleum Division, Department of Mines and Petroleum, a proposal to undertake an exploration or production activity, the grantee party must give to the native title party a copy of the proposal (excluding sensitive commercial date) and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
· Upon assignment of the petroleum title the assignee shall be bound by these conditions.
The Government party also addressed the fraccing issue (at 66), stating that ‘if the exploration permits are granted, no fraccing activities (or, indeed, any activity at all) will be permitted to take place unless they have been approved in accordance with the comprehensive regulatory regime...’. The Government party (at Annexure 37) have included an independent report regarding the ‘Regulation of shale, coal seams and tight gas activities in Western Australia’ and this report defines fraccing as ‘hydraulic fracturing’ which ‘involves isolating sections of a well in the shale formation, and the pumping of fluid and a proppant... down the well bore through perforations in the casing and out into the shale’ (at page 10). The Government party have also provided the Government response to the independent report (at Annexure 38) which outlines the regulatory regime in WA in relation to fraccing and coal seam and tight gas activities in WA.
Pre-Inquiry
In light of the above evidence and contentions that native title rights and interests were likely to have been extinguished over most of the proposed permits, I convened a pre-inquiry conference on 9 May 2012 for the purpose of discussing the likely outcomes of a Tribunal inquiry.
At the pre-inquiry conference, the Amangu native title party representative informed the Tribunal and the parties that despite the grantee party’s offer of an agreement, and against his advice, the Amangu native title party had declined to ‘put name to project’. He also noted that a smaller committee of the Amangu native title party had been nominated to instruct him regarding some of the s 39 criteria for an inquiry.
During the course of the hearing, the Amangu native title party representative indicated that the mapping and tenure information, as outlined above, was not previously made available to him, and advised he would ‘speak with the native title party committee’. However, it was noted that the Government party’s standard practice in all right to negotiate matters is to provide an initial letter to native title parties, attaching such mapping and tenure information for the proposed future act, and offering them the opportunity to make submissions (the ‘negotiation letter’). The Government party representative confirmed that, in accordance with its standard practice, it had issued its negotiation letter to all parties on 9 March 2010 for both proposed permits. Therefore, the above mapping and tenure information had been available to the Amangu native title party at the commencement of negotiations.
At the conclusion of the hearing, I confirmed with the Amangu native title party representative that his current instructions were to prepare s 39 submissions and that the nominated subcommittee was to instruct him accordingly. I also confirmed the current directions with all parties, noting that the Amangu native title party’s s 39 submissions were due on 25 May 2012.
On 25 May 2012, the Amangu native title party representative emailed the Tribunal and all parties:
YMAC feels it imperative that the Amangu Working Group be given another opportunity to consider their position regarding this matter, particularly in light of the State’s submissions detailing the extent of freehold land in private ownership within the 2 tenement applications.
Noting that the Native Title Party’s submissions are due today, I hereby request an adjournment of 8 weeks to enable a meeting to be called to discuss this matter further with our client.
In considering this request, I would ask that the Grantee and Government Party’s both be sympathetic to the fact that we are allocated very limited funding resources to deal with matters such as these, and the very serious consequences for our client in regard to this matter.
On 28 May 2012, the Government party emailed the Tribunal and all parties:
The Government Party is concerned at the Native Title Party's failure to comply with the required timelines in this matter, and does not consent to an 8-week adjournment.
The freehold land issue is not new, and has been apparent since the very beginning of the process - information on the extent of freehold land within the proposed permits was provided to the Native Title Party when negotiations commenced in March 2010. In addition, this information accompanied the Form 5 application to the Tribunal, which was provided on 31 January 2012. Further, the Government Party's contentions and supporting documents were provided on 1 May 2012, and at the directions hearing called to deal with this very issue on 9 May 2012 the Native Title Party did not indicate that it would need any extension of time. On the contrary, the Native Title Party specifically stated that it had instructions to file contentions, and that arrangements had been made so that it could take instructions as to the content of those contentions.
The Government Party is certainly willing to continue negotiations towards a negotiated agreement in these proceedings. Indeed, I understand that section 31(3) mediation proceedings are still on foot. The Government Party (by email of 4 May 2012, amongst other occasions) has expressed a willingness to continue with these proceedings in parallel with the section 35 processes.
While the Government Party is willing to engage towards a negotiated settlement, it submits that this should not be to the detriment of the timelines in these section 35 proceedings, which should continue in parallel. While a short adjournment of around a week would not be opposed, a longer adjournment would jeopardise timeframes and further delay the already drawn-out process of the granting of these permits.
The Government Party is sympathetic to the Native Title Party's position regarding funding, but in circumstances where the issues, and the opportunity for a negotiated outcome, have been on the table for a very long time, we feel that these section 35 proceedings should be progressed expeditiously.
On 30 May 2012, at the request of the Tribunal, the Government party provided exact copies of its original negotiation letters and attachments to the Tribunal and all parties. The letters, dated 9 March 2010, attach Department of Mines and Petroleum (DMP) coloured maps and other information which clearly indicate the underlying tenure of the proposed permits and, therefore, the extent to which native title rights and interests could be asserted. Additionally, the Government party also provided a follow up email sent to all parties on 19 May 2012 attaching DMP Tengraph quick appraisals which also clearly indicate the underlying tenure of the proposed permits and, therefore, the extent to which native title rights and interests could be asserted. The coloured maps and quick appraisals were also attached to the s 35 application which was served on all parties. This confirmed that the relevant information was not new to the native title party.
On 30 May 2012, after considering all parties’ submissions, the Tribunal wrote to all parties summarising the ‘considerable length and history’ of the proposed permits and noting:
The requested extension
The Tribunal notes that if it grants the native title party the requested 8 week extension then, the Tribunal is unlikely to make a determination within six months of the s 35 applications being made (ie by 31 July and 6 August 2012). If that occurred, the Tribunal must comply with s 36(3) of the Act which requires it to advise the Commonwealth Minister of the reason/s for not making timely decisions. Racing toward a decision is not the intention of the Tribunal, however, the Tribunal should be satisfied that the reasons for not making a determination within six months are fair, reasonable and acceptable to the Tribunal and to the Commonwealth Minister. Given the length and history of the proposed permits (as noted above) the Tribunal is satisfied that there are not currently any fair, reasonable or acceptable reasons for granting an 8 week extension, or for not making a determination within six months.
Other considerations
The Tribunal notes s 151(2)(b) of the Act, which provides for the Tribunal to decide that a determination can be adequately determined in the absence of the parties, without holding a hearing, based on documents or other things lodged with or provided to it. The Tribunal notes that this section does not require the consent of the parties.
The Tribunal also draws parties’ attention to s 37(a) of the Act, which states that a determination must not be made if a s 31(1)(b) agreement is reached. The Tribunal notes that this section provides for such negotiations to occur in parallel with s 35 applications. Member Shurven understands that such negotiations are currently being undertaken through s31(3) of the Act, with another Member of the Tribunal.
Taking into account the evidence before the Tribunal and the above reasons, the current directions were vacated and new directions were made allowing the native title party to lodge its submissions by 11 June 2012, the grantee and Government parties to lodge any reply by 22 June 2012, and a ‘determination will be made ‘on the papers’ as per s 151(2)(b) by the Tribunal on 9 July 2012, unless the Tribunal is advised prior to that date that a s 31(1)(b) agreement has been reached’.
Amangu Native Title Party s 39 Submissions
No submissions were received from the Amangu native title party by the due date of 11 June 2012. The only evidence regarding Native Title Party rights and interests is that contained in the National Native Title Register. No further evidence was given of how claimed rights and interests are exercised and enjoyed.
Grantee and Government Party Reply Submissions
Given no submissions were received from the Amangu native title party, no response was lodged by the grantee or Government party by the due date of 22 June 2012.
Legal Principles
I rely on the principles outlined in the following Tribunal future act determinations:
· Re Koara People (1996) 132 FLR73; [1996] NNTTA 31 (‘Koara 1’);
· Evans and Another v Western Australia and Others (1997) 77 FCR 193; [1997] FCA 741 (‘Evans’). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
· Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274; [1998] NNTTA 5 (‘Koara No. 2’) - Tribunal determination following the successful appeal in Evans;
· Western Australia v Thomas and Others (1996) 133 FLR 124 (‘Waljen’); and
· WMC Resources and Another v Evans (1999) 163 FLR 333; [1999] NNTTA 372 (‘WMC/Evans’).
Section 38 of the Act sets out the types of determination that can be made and relevantly are:
38 Kinds of arbitral body determinations
(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
...
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)the amount of profits made; or
(b)any income derived; or
(c)any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Section 39 lists the criteria for making such a determination:
39 Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non-native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a)must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
The making of a determination involves the exercising of discretionary power by reference to the criteria in s 39. The Tribunal’s task was explained in Waljen (at 165-166).
We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
The Tribunal’s inquiry function is summarised in Waljen (at 162-163) and involves, among other things, the Tribunal making a determination based on logically probative evidence and application of the law.
Regardless of whether the registered native title rights and interests are determined or claimed, there is still a need for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act, and of all the other matters in s 39(1)(a) of the Act (WMC/Evans at 339-341). While there is no onus of proof as such, it is ordinarily the responsibility of a native title party to produce evidence on these matters as for the most part these are peculiarly within their knowledge (Waljen at 155-163; Ward and Others v State of Western Australia and Another (1996) 69 FCR 208 at 215-218). This approach has been endorsed by the Land and Resources Tribunal, Queensland (Doxford & Ors, Re [2003] QLRT 58 at [7]-[12]). The rights which will be conferred by the exploration permit (if granted) are set out in section 38(1) of the Petroleum and Geothermal Energy Resources Act 1967 (WA) as follows: ‘a petroleum exploration permit, while it remains in force, authorises the committee, subject to this act and in accordance with the conditions to which the permit is subject, to explore petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area’. The Government party proposes that the AHA and the regulatory regime are likely to prevent interference with any site of particular significance to the native title party.
Findings on the Section 39 criteria
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
According to Government party documentation, approximately 88 per cent of proposed permit 31 and approximately 96 per cent of proposed permit 32 is free hold land in private ownership to which s 23B applies (valid previous exclusive possession acts). Proposed permit 31 comprises some 88 private land parcels and proposed permit 32 comprises some 223 such parcels, indicating extensive settlement in the area. With reference to Neowarra v State of Western Australia [2003] FCA 1402 at 416 (citing Western Australia v Ward [2002] HCA 28; 213 CLR 1; 191 ALR 1; 76 ALJR 1098 (8 August 2002) (Ward)):
Ward on extinguishment
The following propositions can be derived from the joint judgment in Ward.
General
(1)Whether native title rights have been extinguished by a grant of rights to third parties or an assertion of rights by the executive requires an objective comparison between the legal nature and incidents of the right granted or asserted and the native title right asserted.
(2)Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency. If they are not, there will be no extinguishment. In the absence of statutory provision to the contrary (such as s 23G(1)(b)(ii) of the Act and s 12M(1)(b)(ii) of the State Validation Act), questions of suspension of one set of rights in favour of another do not arise.
There is no evidence before me which suggests that the relevant state validation act provisions equivalent to s 23B and 23C of the Act (that is, relevant provisions of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) do not apply to the freehold land within the proposed permit areas. With reference to the above and in the absence of any contentions to the contrary by the Amangu native title party, I conclude for the purposes of this determination that it is likely that any registered native title rights and interests have been extinguished over a large portion of the proposed permit areas.
The Government party contentions (at 31), submit that ‘unless and until the Tribunal receives evidence from the NTP of the effects of the act on the factors identified in section 39(1)(a) it must conclude that there will be no effects’. I agree with this contention in so far as it means that it would be wrong in law to draw any other conclusion in the absence of any cogent evidence or submissions from the native title party to the contrary. In relation to the remaining portions of the proposed permits in which native title rights and interests may not have been be extinguished, no evidence was submitted by the Amangu native title party.
In the absence of any evidence to the contrary, I cannot conclude that there will be any significant adverse effects of the acts on the Amangu native title party’s enjoyment of any of its registered native title rights and interests.
Section 39(1)(a)(ii) – native title party’s way of life, culture and traditions
Section 39(1)(a)(iii) – native title party’s development of social, cultural and economic structures
Section 39(1)(a)(iv) – native title party’s freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance
The Government party contends that in the absence of any evidence provided by the native title party, the Tribunal should conclude that the grant of the proposed permits will have little or no effect on the above (at 71-77). With reference to my findings in relation to s 39(1)(a)(i), and in the absence of any evidence to the contrary, I cannot conclude that there will be a significant impact in relation to s 39(i)(a)(ii)-(iv).
Section 39(1)(a)(v) – areas or sites of particular significance to the native title party
Section 39(1)(b) – interests, proposals, opinions and wishes of the native title party
Department of Indigenous Affairs (DIA) documentation provided by the Government party shows four sites or heritage places within proposed permit 31, and 14 sites or heritage places within proposed permit 32, all recorded under the Aboriginal Heritage Act 1972 (WA) (AHA). The AHA Register does not purport to be a record of all Aboriginal sites in Western Australia and the AHA protects all Aboriginal sites, whether on the Register or not. The Government party contends that it is ‘entirely appropriate’ for the Tribunal to take into account the AHA regime ‘and other government measures’ (at 81) when considering the effect of the grant of the proposed permits on areas or sites of particular significance, citing Cheedy v Western Australia at [145] in support of its contention. I accept the Government party’s contention.
In relation to the Amangu native title party’s interests, proposals or wishes, the Government party contends that it ’does not presently enjoy, and has no native title right to, any management, use or control of the vast majority of the area of the Exploration Permits due to it being freehold land in private ownership’ (at 84). It also contends (at 85) that the Government party’s regulatory regime makes it likely that the native title party will continue to be able to access and use the area of the proposed permits to which they are currently entitled to access.
With reference to my findings in relation to s 39(1)(a)(i), and in the absence of any evidence to the contrary, I cannot conclude that there will be a significant impact in relation to s 39(1)(a)(v) and s 39 (1)(b).
Section 39(1)(c) – economic or other significance
The Government party contends that the grant of the proposed permits ‘will be of great economic benefit to the nation, the State and the local region. Benefits will include royalties (for the State) in the event that production occurs. There is also likely to be benefit to the local economy in and around the area in general’ (at 86, citing in support of its contention Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387 at 409 [58])(Australian Manganese)). I accept that contention and conclude, based on the evidence provided, that the grant of the proposed permits is likely to be of economic significance to the State and the area in which the permits are to be located.
Section 39(1)(e) – public interest
The Government party cites Evans v Western Australia (1991) 77 FCR 193 at 215 and Australian Manganese at 409 [59], to contend that the public interest is served ‘due to the economic benefits that will accrue at a local, State and national level if production eventually occurs’ (at 87). I adopt the findings of the Tribunal in Waljen at [215]-[216] on matters relating to public interest: the Tribunal accepts that the mining industry is of economic significance to Western Australia and Australia and I conclude that the public interest is served by the grant of the proposed permits.
Section 39(1)(f) – any other matter the Tribunal considers relevant
Citing WMC/Evans at 357, the Government party submits that the effect of the grant of the proposed permits on the environment may be a relevant factor (at 88). It submits that any impact on the environment will be regulated and minimised by the relevant legislative and regulatory schemes, the conditions and endorsements proposed, and the State and Federal regulatory regime with respect to environmental protection and the protection of Aboriginal heritage. In relation to this matter, I adopt the findings of Waljen at [212]-[214] relating to the effect of the proposed acts on the natural environment, and Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274 at 292-296 [53]-[62] regarding the provisions of the Environmental Protection Act 1986 (WA).
Section 39(2) criteria – existing non-native title rights and interests and use of the land
With reference to my findings regarding s 39(1)(a)(i), approximately 88 per cent of proposed permit 31 and approximately 96 per cent of proposed permit 32 comprise freehold land in private ownership. In the absence of any evidence to the contrary, I must conclude that any registered native title rights and interests are likely to have been extinguished over these areas, which comprise the vast majority of the proposed permits.
Conditions
The Government party has indicated it proposes to impose standard conditions, and endorsements, as outlined earlier in this determination, on the grant of these permits. The Government party also indicated four extra conditions, which it submitted required ‘substantial, credible evidence’ from the native title party for them to be imposed. The grantee party contentions indicated that they had no objection to specific conditions being imposed in relation to ‘the Native Title Party’s ability to access their native title rights and interest’. While the native title party has not provided evidence in relation to this issue, evidence does exist on the Native Title Claims Register, and Government party evidence indicates there are sites recorded with the DIA within the proposed permit areas. In addition, the grantee party has no objection to conditions being imposed in relation to access. On the basis that the following conditions are justified on the credible evidence on the Native Title Register, and from DIA records, I impose the following three of the four extra conditions on the grant of permit 31 and permit 32:
· Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the petroleum title is not to be restricted except on relation to those parts of the land which are used for exploration or production operations or for safety or security reasons relating to those activities.
· Where the grantee party submits to the Executive Director, Petroleum Division, Department of Mines and Petroleum, a proposal to undertake an exploration or production activity, the grantee party must give to the native title party a copy of the proposal (excluding sensitive commercial date) and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
· If the grantee party gives a notice to the Aboriginal Cultural Material Committee under Section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Determination
The determination of the Tribunal is that the acts, namely the grant of Petroleum Exploration Permit Applications 31/07-8 EP and 32/07-8 EP to Dynasty Metals Australia Ltd, may be done, subject to the standard conditions and endorsements proposed by the Government party, as outlined in paragraph 15 of this determination, including three of the four extra conditions as outlined in paragraph 45 of this determination, namely:
· Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the petroleum title is not to be restricted except on relation to those parts of the land which are used for exploration or production operations or for safety or security reasons relating to those activities.
· Where the grantee party submits to the Executive Director, Petroleum Division, Department of Mines and Petroleum, a proposal to undertake an exploration or production activity, the grantee party must give to the native title party a copy of the proposal (excluding sensitive commercial date) and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
· If the grantee party gives a notice to the Aboriginal Cultural Material Committee under Section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Helen Shurven
Member
9 July 2012
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