NATIONAL NATIVE TITLE TRIBUNAL
White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales, [2011] NNTTA 72 (28 April 2011)
Application No: NF 11/1
IN THE MATTER of the Native Title Act 1993 (Cth)
and
IN THE MATTER of an inquiry into a future act determination application
White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party)
and
Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party)
and
State of New South Wales (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 28 April 2011
Hearing Dates: 25 February, 5 April 2011
Representatives:
Grantee party: Mr Brendan Tobin, McCullough Robertson Lawyers
Native title party: Mr Eddy Neumann, Eddy Neumann Lawyers
Government party: Ms Natasa Najdovski, NSW Crown Solicitor’s Office
Catchwords: Native title – future act – proposed grant of Mining Lease – future act determination application – whether grantee party has negotiated in good faith –negotiations with other Aboriginal persons – sending negotiators with authority to negotiate – adopting a non-negotiable position – cultural heritage – charitable trust – grantee party negotiated in good faith
Legislation: Native Title Act 1993 (Cth) – ss. 29, 30A, 31, 35, 36, 38, 39, 75, 109, 151
Cases:Brownley v Western Australia (No 1) (1999) 95 FCR 152
Cameron v Hoolihan (2005) 196 FLR 37
FMG Pilbara Pty Ltd/Cheedy & Ors on behalf of the Yindjibarndi People/Western Australia WF08/31 [2009] NNTTA 38 (24 April 2009) Member O’Dea
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141
Gregory Wayne Down/Cyril Barnes & Ors on behalf of Wongatha People/Western Australia WF04/9 [2004] NNTTA 91 (1 October 2004) Deputy President Franklyn
Little v Western Australia [2001] FCA 1706
Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited WF06/21 [2006] NNTTA 153 (24 November 2006) Member Sosso
Strategic Minerals Corporation NL/Allan Kynuna & Ors on behalf of the Woolgar Group/Queensland QF03/1 [2003] NNTTA 83 (9 July 2003) Deputy President Sumner
Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303
Townson Holdings Pty Ltd & Anor/Ron Harrington & Ors on behalf of the Wongatha People & Anor/Western Australia WF 03/2 [2003] NNTTA 82 (9 July 2003) Deputy President Sumner
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Dimer (2000) 163 FLR 426
REASONS FOR DECISION
On 11 June 2010 the State of New South Wales (‘the government party’) gave notice under s. 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant Mining Lease Application MLA 351 (‘the proposed tenement’) to White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (collectively referred to as ‘the grantee party’). For the purposes of s. 29(4), 2 July 2010 was specified as the notification day.
The notice described the proposed tenement as being located approximately 4 kilometres…
Continue reading White Mining (NSW) Pty Ltd v Franks
Sign in free to access the full text
- AGLC
- White Mining (NSW) Pty Ltd v Franks [2011] NNTTA 72
- Case
- [2011] NNTTA 72
- Decision Date
CaseChat Overview and Summary
The central legal issues for the court were whether the grantee party had negotiated in good faith as required by subsection 31(1)(b) of the relevant Act and if there were grounds to prevent the Tribunal from making a determination under section 38 due to the failure of good faith negotiation. The definition of "negotiation parties" included the government party, the native title party, and the grantee party. The court had to consider the actions and positions taken by the grantee party during negotiations, including their dealings with other Aboriginal persons and the establishment of a charitable trust, to determine if they had indeed negotiated in good faith.
The court examined the affidavit of Mr. Peter Stuart Barton and the letter authorising the operator of the Ashton Coal joint venture to negotiate and settle a native title agreement. It considered the grantee party's actions, including sending negotiators with authority to negotiate, adopting a non-negotiable position, and their interactions with other Aboriginal persons. The court concluded that the grantee party had negotiated in good faith by sending negotiators with authority, adopting a position that was not inherently non-negotiable, and engaging in discussions that were consistent with good faith negotiation. The court found no evidence to suggest that the grantee party had acted in bad faith.
As a result, the court ruled that the grantee party had negotiated in good faith, and there were no grounds to prevent the Tribunal from making a determination under section 38 of the Act. The court's decision affirmed that the grantee party had fulfilled its obligations under the statutory requirements for negotiating in good faith.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The notice described the proposed tenement as being located approximately 4 kilometres south south-east of Ravensworth and comprising an area of 215 hectares. The proposed tenement would authorise the mining of coal by open cut methods for a term of 21 years. The grantee party advised in its Statement of Contentions lodged on 22 March 2011 (at para 2.1), that the proposed tenement is one of a number of mining lease applications that comprise the South East Open Cut Project. In addition, the grantee party advised that the corporate entities comprising the grantee party authorised the operator of the Ashton Coal joint venture, Ashton Coal Operations Pty Ltd (‘ACOL’), to do all things necessary to obtain approvals for the grant of the proposed tenement, including addressing any native title issues. The grantee party lodged an affidavit of Mr Peter Stuart Barton, a Director of White Mining (NSW) Pty Ltd and ACOL. Annexed to his affidavit is a letter signed on 13 December 2010 pursuant to which the joint venture companies:“... authorise Ashton Coal Operations Pty Limited (ACOL), as the operator of the Ashton Coal Mine, to manage matters related to the grant of MLA 351 including:(a)negotiating a native title agreement with the native title party for MLA 351; and(b)settling a native title agreement with the native title party, which is subject to final approval and sign off by the JV Participants.” The proposed tenement is partly overlapped by the Plains Clans of the Wonnarua People native title determination application (NC10/3), which was accepted for registration pursuant to s.190A on 2 November 2010. On 11 February 2011 a future act determination application was lodged with the Tribunal pursuant to ss.35 and 75 of the Act by McCullough Robertson Lawyers on behalf of the grantee party. The application was made more than six months after the notification day – s. 35(1)(a). On 15 February 2011 Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purpose of conducting the future act determination application inquiry. On 25 February 2011 I convened a Preliminary Conference during the course of which the native title party contended that the grantee party had not negotiated in good faith. There was no submission that the government party had failed to negotiate in good faith. Subsection 31(1)(b) requires that the negotiation parties negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the future act or the doing of the future act subject to conditions to be complied with by any of the parties. The term “negotiation parties” is defined by s.30A to include the government party, the native title party and the grantee party. Any negotiation party may apply to the Tribunal for a determination pursuant to s. 38 if at least six months has passed since the notification day and no agreement of the kind mentioned in s. 31(1)(b) has been made. If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith, the Tribunal must not make a determination pursuant to s. 38 – s. 36(2). The implications of s. 36(2) were explained by the Full Federal Court in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 (at 143/[11]) as follows:“... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on the exercise of the power only arises when the good faith point is taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.”