Wisecat Pty Ltd v Clive Davis & Others on behalf of Whadjuk People and Another
[2020] NNTTA 41
•23 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Wisecat Pty Ltd v Clive Davis & Others on behalf of Whadjuk People and Another [2020] NNTTA 41 (23 April 2020)
Application No: | WF2020/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Clive Davis & Others on behalf of Whadjuk People (WC2011/009)
(native title party)
- and -
Wisecat Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 23 April 2020 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of mining lease – parties unable to formalise s 31(1)(b) agreement – s 39(4) agreement to be given effect – grantee requests condition – act may be done |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 38, 39, 109, 142 |
Cases: | Muccan Minerals Pty Ltd v Allen on behalf of Njamal [2018] NNTTA 24 (Muccan v Allen) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 Evans v Western Australia (1997) 77 FCR 193; [1997] FCA 741 Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 |
| Representative of the native title party: | Carolyn Fennelle, South West Aboriginal Land and Sea Council |
| Representative of the grantee party: | Ken Green, Green Legal Pty Ltd |
| Representatives of the Government party: | Faye Mitchell, Department of Mines, Industry Regulation and Safety Wanjie Song and Zachary Clifford, State Solicitor’s Office |
REASONS FOR DETERMINATION
On 10 April, 2019, the State gave notice, under s 29 of the Act, of its intention to grant M70/1390 to Wisecat Pty Ltd (Wisecat). The lease is just over 29 square kilometres in size, and is located 18 kilometres southerly of the town of Gingin, in Western Australia.
This decision concerns an application made to the National Native Title Tribunal (the Tribunal) by Wisecat on 28 January 2020, seeking a determination that mining lease M70/1390 (the lease) may be granted to Wisecat. The lease lies within the registered native title claim of the Whadjuk People (WC2011/009). For the purposes of the negotiation procedure set out in s 31 of the Native Title Act 1993 (Cth) (the Act), the Whadjuk People, Wisecat and the State of Western Australia (the State) are the negotiating parties.
Section 31(1)(b) of the Act requires the negotiating parties to negotiate in good faith with a view to obtaining the agreement of the Whadjuk People to the grant of the lease. If, after six months, the parties are unable to agree, any of the parties may apply to the Tribunal for a determination that the act of granting the lease may be done.
I must not make a determination on the application in this matter if the Whadjuk People satisfy me that the State or Wisecat did not negotiate in good faith (s 36(2)). In this case, the Whadjuk People did not challenge the other parties’ good faith, so it is not necessary for me to further consider that issue.
In this matter, the parties agree to the grant of the lease but have been unable to meet the formal requirements of s 31(1)(b) of the Act.
The future act determination application
The application was made by Wisecat and satisfied the requirements under s 35(1) of the Act, as it was made more than six months after the lease was notified, and no s 31(1)(b) agreement has been made (as outlined at [13]-[14] below). The application noted (at 14.2) that Wisecat was in the process of executing an ancillary agreement with the Whadjuk People (which was subsequently executed), and that (at 14.3):
The application is unlikely to be opposed by the surviving registered native title claimants (or any other member of the native title claim group) on the premise that the effect of the future act upon native title rights and interests will be minimised by the applicant abiding by the ancillary agreement.
The inquiry
I was appointed to constitute the Tribunal for the purposes of conducting an inquiry into the application. The decision which I can make in determining the outcome of this inquiry, as outlined in s 38 of the Act, is one of the following:
· the act must not be done;
· the act may be done;
· the act may be done subject to conditions to be complied with by any of the parties.
The criteria that I must take into account in making a determination are those set out in s 39(1) of the Act. The Act does not specify the weight to be afforded to each criteria listed in s 39; that will depend on the evidence (see Western Australia v Thomas at 166-167).
There was no reference in the application to any conditions being sought to be applied in this inquiry. During the inquiry, Wisecat subsequently referred to a condition which they sought to have applied (the primary condition), and later, Wisecat referred to a condition in the alternative (the augmented condition) (as outlined at Attachment A). I outline more on this throughout this decision, and particularly at [15]-[16], [21]-[27] and at [48]-[50] below.
Having conducted the inquiry and heard from all parties, my decision is that the act, being the grant of mining lease M70/1390, may be done. I considered a condition was not appropriate, based on information provided in written materials from parties and oral discussion at the hearing, where parties had the opportunity to hear from each other and make argument in regards to the s 39 criteria and each of the grantee’s proposed conditions.
I outline the course of the inquiry below.
The preliminary conference
At the request of the Tribunal, Wisecat provided to the Tribunal and all parties, on 7 February 2020: the application originally made to the State for the lease; the Mineralisation Report for the lease; and the Supporting Statement for the Mining Lease Application (including a plan of operations).
I convened a preliminary conference on 13 February 2020 with all parties. At the preliminary conference, it was outlined and confirmed that the Whadjuk People and Wisecat had executed an ancillary agreement between themselves (the Mining Project Agreement For The Muchea Silica Sand Project, dated 23 January 2020 ‘the Agreement’), but were unable to execute the State Deed between all negotiating parties.
The State requires parties to sign a State Deed (which in this matter is a deed for the grant of a mining lease). The Department of Mines, Industry Regulation and Safety (DMIRS) provides the State Deed, which is then executed by all parties (with the relevant Minister (or their representative) executing the State Deed on behalf of the State). All individuals listed as a Whadjuk People applicant on the Tribunal’s Register of Native Title Claims were unable to sign the State Deed, as two of those persons are deceased.
At the preliminary conference, Wisecat sought the primary condition be imposed as part of this determination. It was outlined that a previous draft of the primary condition had been the subject of recent discussion between the native title party and grantee representative, following execution of the ancillary agreement.
The Wisecat representative provided a hardcopy of the ancillary agreement to the Tribunal at the preliminary conference, as well as a copy of the primary condition (which was read out to parties attending by telephone). Wisecat agreed to provide the final form of the primary condition to all parties, as well as a copy of the ancillary agreement (to which the condition referred), for their consideration on or by 21 February 2020, as well as any written commentary in support of a condition being imposed as part of this determination. I issued non-disclosure directions protecting the contents of the ancillary agreement from being disclosed outside of this inquiry process.
At the preliminary conference, I issued directions which had been circulated to parties prior to the preliminary conference. The directions envisaged a single oral hearing where issues relating to the s 39 criteria would be heard, including parties views about each of Wisecat’s proposed conditions. The directions were so cast to align with the Tribunal’s way of operating, as set out in sections 109 and 142 of the Act, including to be economical, informal and prompt in the conduct of inquiries, and to ensure all parties had reasonable opportunity to present their case and make submissions. The hearing was held on 28 February 2020.
Information from Wisecat
The Mineralisation Report outlined that the mining lease was within the area of an existing exploration licence, and would form part of the Muchea Silica Sand Project. The target commodity was quartz rich sand (also known as silica sand). Hand auger and air core drilling has been conducted as part of the exploration activities, and in Wisecat’s view the area is now ready for mining. Information is provided regarding the approximate megatonnes of sand expected from mining.
The report goes on to outline (at page 14) that ‘Mining of the unconsolidated sand will be done by a wheeled front end loader feeding a conveyor system into a trommel [a mechanical screening machine], which will then pump a sand slurry to a location proximal to the railway line for processing and loading for bulk export via the Kwinana Bulk Terminal’.
The Supporting Statement for the Mining Lease Application (including a plan of operations) provided detail on likely mining operations, including proposed commencement of activities and the type of machinery required. Transport of the commodity is outlined, as is proposed plant construction and access to the area. Photographs illustrative of the type of operations to be conducted are included in the Statement. Some detail is provided regarding the proposed rehabilitation of the area following mining operations.
Wisecat provided their submissions for the hearing, including a primary condition which they sought to have applied, and an augmented condition in the alternative (as at Attachment A). In summary, the argument put forward by Wisecat in support of the primary or augmented condition being applied to this inquiry outcome is that ‘the Agreement does not bind either the Whadjuk Claim Group or (if wider) the Whadjuk People (Agt), but rather only binds the Signatories (namely the GP, the Surviving Claimants and SWALSC)’ (emphasis in original, at 5.1).
Wisecat went on to say (at 5.2) that ‘Part of that concern arises as to the manner in which those persons who currently comprise the Whadjuk Claim Group, or the Whadjuk People (Agt), may have authorised the Surviving Claimants to contractually bind those persons (via agency) to the Agreement. That manner of authorisation is not a matter within the GP’s knowledge’.
Wisecat also noted (at 5.3) that ‘Part of that concern also arises because Australian law does not readily recognise the ability of a small group of people (ie the Surviving Claimants) to contractually bind a large, possibly undeterminable, and in any event fluctuating, group of persons (ie the Whadjuk People (Agt))’. A number of authorities were provided in support of Wisecat’s request for the imposition of a condition, which I have considered.
At the hearing, Wisecat took all parties through their arguments, which in summary were: to emphasise their concern that if a condition was not imposed, there was a risk that some of the obligations under the agreement are not binding on the Whadjuk People; and to reiterate its position in relation to requesting either the condition or the augmented condition be imposed on the grant of the lease through the Tribunal’s decision.
Information from the Whadjuk People
At the preliminary conference, the Whadjuk People representative confirmed an ancillary agreement had been executed between her client and Wisecat. She also confirmed her client did not support the imposition of Wisecat’s primary condition. The Whadjuk People maintained their strong opposition to the imposition of either the primary condition, or the augmented condition, in their subsequent written materials and at the hearing.
In submissions to the Tribunal at the hearing, the Whadjuk People representative argued that: the primary condition and augmented condition raised uncertainties regarding their operation on the Agreement; the Tribunal may not have the power to impose the condition (by virtue of s 38(2), for example); and that broadly speaking, Wisecat was taking a commercial relationship between the parties and subjecting it to outside interference (in the form of a Tribunal decision imposing a condition which may affect the commercial agreement). The Whadjuk People also raised argument against the interpretation of the authorities provided by Wisecat.
Information from the State
The State participated in the inquiry and argued throughout that, with respect to either of Wisecat’s proposed conditions, it was a matter between Wisecat and the Whadjuk People.
Issues to take into account in making a determination
In making a decision, I must have regard to the criteria in s 39(1)(a) of the Act. These criteria include the effect of the mining lease on the Whadjuk People’s enjoyment of their registered native title rights and interests. These rights include to: exclusively possess, occupy, use and enjoy the area; access the area; maintain and protect places of importance under traditional laws, customs and practices; and manage, conserve and look after the land, water and resources.
I must consider the effect of the mining lease on the Whadjuk People’s way of life, culture and traditions; development of their social, cultural and economic structures; freedom of access; and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to the native title party in accordance with their traditions.
I am also required to take into account the other matters specified in s 39(1), namely: the interests, proposals, opinions and wishes of the Whadjuk People in relation to the management, use or control of the land or waters affected by the mining lease; the economic or other significance of the mining lease to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islander peoples who live there; the public interest in the mining lease; as well as the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the native title party. Finally, I must take into account any other matter I consider to be relevant.
If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then I must take that into account in making my determination, and need not take into account the matters in s 39(1) to the extent those matters relate to the issues agreed (see s 39(4) of the Act). Bearing in mind the reliance of parties on the terms of the Agreement, and that a direction was made not to disclosure contents of the Agreement outside this inquiry process, my comments in relation to the s 39 criteria are relatively brief. I refer to the Agreement only to the extent that is needed to explain my reasons.
Sections 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests
Wisecat outlined in their application (at 11.1) that any effect of the future act upon the Whadjuk People’s native title rights and interests will not be material, taking into consideration the Agreement (at 14.2). The Whadjuk People also rely on the Agreement, and outlined at the hearing that conscious effort was made by these two parties to negotiate with s 39 criteria in mind.
I conclude that the grant of the lease will not adversely affect the enjoyment of the Whadjuk People’s registered native title rights and interests.
Section 39(1)(a)(ii) – the effect of the act on the Whadjuk People’s way of life, culture and traditions
At the hearing, the Whadjuk People representative outlined how the lease area is culturally sensitive and important, including it being a significant border area, a woodland area and the underlying tenure being unallocated crown land. The representative also outlined mechanisms within the Agreement which allow for communications between the Whadjuk People and Wisecat, to ensure an ongoing relationship over the life of the lease. This includes a multipurpose area, how mining activity will advance on the lease area, and how the Whadjuk People relate to that ongoing relationship in terms of access, visiting and practicing culture in that area.
I am satisfied that mechanisms in the Agreement such as a Cultural Awareness Schedule and Project Committee Schedule means it is unlikely there will be any effect on the way of life, culture and traditions of the native title party.
Section 39(1)(a)(iii) – the effect of the act on the development of the Whadjuk People’s social, cultural and economic structures
At the hearing, the Whadjuk People representative outlined that employment and contracting provisions are built into the Agreement. I accept that the Employment and Contracting Schedule is such a provision.
I conclude it is unlikely the grant of the lease will have a negative impact on the development of the social, cultural and economic structures of the native title party.
Section 39(1)(a)(iv) – the effect of the act on the Whadjuk People’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance
At the hearing, the Whadjuk People representative outlined that meaningful access has been built into the Agreement, including a multipurpose gathering ground where people can practice culture. I note the Agreement has clauses which cover the right of access and access procedures.
It is unlikely there will be an adverse impact on the ability of members of the Whadjuk People to access the area of the lease, or to carry out rites, ceremonies or other activities of cultural significance.
Section 39(1)(a)(v) – the effect of the act on any site or area of particular significance to the Whadjuk People in accordance with their traditions
My role under s 39(1)(a)(v) is to assess whether there is likely to be an effect of the act on any site or area of particular significance to the Whadjuk People Ngadju in accordance with their traditions. I note the Agreement has clauses which cover consultation in relation to impacts on sites, as well as a Heritage Protocol.
I conclude that any mining activities carried out by Wisecat under the lease are unlikely to affect any areas or sites of particular significance to the Whadjuk People in accordance with their traditions.
Section 39(1)(b) – The Whadjuk People’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act
At the hearing, the Whadjuk People representative outlined that those interests are taken into account and embedded in the Agreement. I am satisfied the Agreement contains such clauses and considerations.
I conclude it is unlikely there will be adverse effects on the Whadjuk People’s interests, proposals or wishes in relation to the scope covered by s 39(1)(b).
Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area
Representatives for both Wisecat and the Whadjuk People outlined, at the hearing, the economic significance of the proposed mining operation, and the value of the resource. Reports and written material supported those oral submissions.
I conclude that if the lease is granted, there will be economic benefits for the local economy, the State of Western Australia, and possibly for the national economy.
Section 39(1)(e) – Any public interest in the doing of the act
Parties do not explicitly address public interest matters in terms of s 39(1)(e), although at the oral hearing the general economic impact of the project was discussed. I accept there is public interest in the grant of the lease.
Section 39(1)(f) – Any other matter the Tribunal considers relevant
Water and environmental concerns were also raised as being important to the Whadjuk People. Given the oral submissions at the hearing, and the environmental protocol in the Agreement, I am satisfied due consideration has been given to such environmental concerns.
Conditions
There is no express limit in s 38 on the conditions which can be imposed with a determination that the act may be done. However, in imposing conditions, there must be evidence which supports that course of action. For example, if I decide the act can be done, then one or more conditions could be imposed to minimise any adverse effect on the native title holders in the context of the s 39 criteria (see for example, Re Koara People at 93). The Tribunal has also considered the purpose of conditions in previous inquiries, as summarised for example in Muccan v Allen (at [157]), which states conditions can be imposed ‘with the purpose of minimising the potential for deleterious effects on the native title party’s rights and interests’.
I have not considered the Whadjuk People’s argument that Wisecat’s primary condition or augmented condition would offend against s 38(2), because, having read through all the materials and authorities provided by parties, I am not satisfied the imposition of such a condition would minimise any adverse effect on the native title holders in the context of the s 39 criteria. I have considered Wisecat’s concerns in relation to the binding of persons to the agreement (as outlined at [24] above), however, both parties were legally represented during the agreement making process, and the Agreement has now been executed.
In essence, the approach of the Tribunal in future act determination matters, where conditions are raised by a party, was summarised in Evans v Western Australia:
The process is directed to the relevant end, namely the effect of the mining leases on native title, and the topics to be required by the conditions to be addressed in the process mirror those in s39 of the Act (at 210)
…
The subject matter of the conditions is to be shaped by the broad purpose that there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the certain criteria there listed (at 213).
Conclusion
My task in making a future act determination is a discretionary one, which involves weighing the various factors set out in s 39 of the Act. I have considered all of the written material, and heard from parties at the preliminary conference and the hearing, and have concluded the future act can be done, without imposing conditions.
I am not minded to impose either the primary or the augmented condition as part of this inquiry, as, in summary:
·a commercial agreement has been executed between the Whadjuk People and Wisecat;
·the Whadjuk People strongly oppose the imposition of the primary or the augmented condition;
·there are no clear reasons to impose the primary or augmented condition relevant to the s 39 criteria; and
·I am not satisfied either the primary or the augmented condition will have the effect of minimising the potential for deleterious effects on the Whadjuk People’s rights and interests.
Determination
The determination of the Tribunal is that the act, being the grant of mining lease M70/1390 to Wisecat Pty Ltd, may be done.
Helen Shurven
Member
23 April 2020
ATTACHMENT A: CONDITION REQUESTED BY WISECAT
Primary condition
The native title party must comply with any obligation owed by the native title party to the grantee party under the Mining Project Agreement For The Muchea Silica Sand Project dated 23 January 2020 between Wisecat Pty Ltd (ACN 624 432 480), Nigel Wilkes, Trevor Nettle, Dianne Wynne and South West Aboriginal Land & Sea Council Aboriginal Corporation (ICN 3832).
Augmented condition
The native title party and the grantee party must comply with any obligation owed by the native title party to the other grantee party under the Mining Project Agreement For The Muchea Silica Sand Project dated 23 January 2020 between Wisecat Pty Ltd (ACN 624 432 480), Nigel Wilkes, Trevor Nettle, Dianne Wynne and South West Aboriginal Land & Sea Council Aboriginal Corporation (ICN 3832) other than for clause 3 of Schedule 1 to that agreement. This condition does not affect any effect that the agreement might have apart from this condition.
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