Yurriyangem Taam Aboriginal Corporation RNTBC v SoAstute Pty Ltd
[2023] NNTTA 2
•6 February 2023
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam Aboriginal Corporation RNTBC & Anor v SoAstute Pty Ltd & Anor [2023] NNTTA 2 (6 February 2023)
Application No: | WF2022/0006 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(native title party)
Ngarrawanji Aboriginal Corporation RNTBC (WCD2019/004)
(native title party)
- and -
SoAstute Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Member G Kelly |
Place: | Perth |
Date: | 6 February 2023 |
Catchwords: | Native title – future act – s 35 application for determination - exploration licence – negotiating parties unable to formalise s 31(1)(b) agreement - s 39 criteria considered – s 39(4) ancillary agreement taken into account – economic or other significance of act – public interest in doing of act – act may be done |
Legislation: | Native Title Act 1993 (Cth) ss 29, 30, 31, 37, 38, 39 Mining Act 1978 (WA) ss 57, 58, 61 |
Cases: | Bradley Foster & Ors (Waanyi Peoples) v Copper Strike Ltd & Anor [2006] NNTTA 61 (Foster v Copper Strike) Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 (Farrer 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) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Purdie v Western Australia) Western Australia v Roberta Vera Thomas & Ors [1996] NNTTA 30 (Western Australia v Thomas) |
| Representatives(s) of the native title party: | Scott Howieson and Priya Mittal, Kimberley Land Council |
| Representative(s) of the grantee party: | Ngaire Koch, Hetherington Exploration and Mining Title Services Pty Ltd |
| 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 SoAstute Pty Ltd (SoAstute) seeking a future act determination that exploration licence E80/5523 (licence) may be granted.
The licence is located in the north of Western Australia, approximately 64 km north-west of Halls Creek at its closest point. Ngarrawanji Aboriginal Corporation holds native title in trust for the Ngarrawanji People in relation to 2.44% of the licence area (see Farrer v Western Australia). Yurriyangem Taam Aboriginal Corporation holds native title in trust for the Yurriyangem Taam People in relation to 97.56% of the licence area (see Purdie v Western Australia). I will refer to Ngarrawanji Aboriginal Corporation and Yurriyangem Taam Aboriginal Corporation collectively as the native title parties.
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 licence in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA). The s 29 notice provided a notification day of 24 March 2021 and included a statement that DMIRS considered the expedited procedure under the NTA applied to the grant of the licence. From the submissions before me I understand it is no longer asserted that the expedited procedure statement applies to the proposed grant of the licence.
Section 31(1)(b) of the NTA requires the parties to negotiate in good faith with a view to obtaining the agreement of (in this case) the native title parties to the grant of the exploration licence. The parties have so negotiated however have not executed an agreement under s 31(1)(b) of the NTA.
SoAstute lodged the future act determination application (application) on 27 October 2022, being greater than 6 months after notification as required by s 35 of the NTA. The application was accepted by the Tribunal on 10 November 2022 and the President of the Tribunal directed me to constitute the Tribunal for the purpose of holding an inquiry into the application.
The application of SoAstute is unopposed. Having reviewed the materials before me and considered the matters set out in s 39 of the NTA, I have determined the licence 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, SoAstute states that it and the native title parties 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 native title parties and the State. The native title parties confirm this at paragraph [5] of their submissions. Consequently, the parties have not entered into an agreement of the kind mentioned in s 31(1)(b) and a determination may be made.
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, 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, SoAstute and the native title parties 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 22 November 2022. At the preliminary conference, the parties confirmed that the future act determination application would be uncontested and noted there were contractual arrangements in place for the protection of the native title parties’ interests. The native title parties also advised they would not allege a lack of good faith on the part of SoAstute or the State.
Following the preliminary conference, directions setting the timeline for the inquiry were issued.
On 29 November 2022, the State provided information with respect to the licence. This included mapping, heritage and tenure information, draft endorsements and conditions intended to be imposed on the grant of each exploration licence, and other associated materials, including the explorer’s application and the statement required by s 58 of the Mining Act 1978 (WA) (Mining Act), for each exploration licence.
Also on 29 November 2022, the State and SoAstute lodged joint submissions (joint submissions).
On 8 December 2022, the native title parties lodged their submissions (native title parties submissions). I note the native title parties initially lodged material which referenced the ‘native title party’ before later that day lodging updated contentions referencing the ‘native title parties’. In all other respects, the 2 sets of contentions were identical and I am satisfied it is appropriate to accept the updated submissions.
Details of the licence
The 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, the proposed license is approximately 189 km2 in size, with underlying land tenure being 97.56% Class C Pastoral Lease (Bedford Downs pastoral lease) and 2.44% Class C Pastoral Lease (Moola Bulla pastoral lease).
In its s 58 statement, SoAstute states that the licence is intended to target base metal occurrences and provides an initial exploration budget of $58,000. The s 58 statement provides SoAstute aims to identify ‘economic levels of mineralisation within the licence area’ and includes a proposed work program.
The Aboriginal Heritage Inquiry System (AHIS) searches provided by the State do not show any registered Aboriginal sites in the licence area. The AHIS searches show that the tenement falls within the external boundary of the Wunamal/Mueller Ranges, which is recorded as an ‘Other Heritage Place’.
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 licence: s 39(1)(b)
Section 39(1)(a)(i) relates to the effect of the grant of the licence on the native title parties enjoyment of their registered native title rights and interests. In this case, 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). Both native title parties hold non-exclusive native title in the entirety of their respective determination areas that overlap the proposed licence.
The State and SoAstute submit that SoAstute has reached separate agreements with both native title parties regarding the s 39(1)(a) matters to their mutual satisfaction (joint submissions [6]). The native title parties also submit they consider these agreements address each of the matters set out in s 39(1)(a) in a satisfactory way (native title parties submissions [6]).
Relating to s 39(1)(b), the State and SoAstute further submit that the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the relevant land and waters have been taken into account by SoAstute and addressed in the ancillary agreements (joint submissions [7]). In their submissions, the native title parties also state that this is the case (native title parties submissions [7]).
Further to this, the native title parties submit that the Tribunal should take into account the fact that agreement has been reached addressing the s 39(1)(a)-(b) criterion (native title parties submissions [8]), to which the State and SoAstute agree (joint submissions [10]-[11]). Given this shared view amongst the parties, I have taken this agreement into account as required, a factor which has a significant bearing on this determination.
Economic or other significance of the licence: s 39(1)(c)
While the parties agree on issues relating to s 39(1)(a)-(b), this is not the case for s 39(1)(c) as the native title parties make no submissions on this topic. As such, I am required to take into account the economic or other significance of the licence to Australia, the State, the area in which the licence is 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 licence, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas [175]-[176]).
While the native title parties are silent on these topics, SoAstute 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 submissions [8]). The State for its part, says that it relies on the statement made by SoAstute and agrees with this being taken into account by the Tribunal (joint submissions [11])
While there is no specific evidence regarding any of the potential benefits arising from the grant of the licence before me, the Tribunal 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 in general, exploration licences will provide lesser benefit than a mining lease, but may result in a mining lease being applied for at a future date.
The material provided by the parties show that some limited rentals will payable to the State. It is also possible that other benefits may accrue to the native title parties through their ancillary agreement with SoAstute, although this cannot be concluded without understanding the content of this agreement. Nevertheless, the native title parties state they do not oppose a determination by the Tribunal (native title parties submissions [9]). Given my previous remarks on the ancillary agreement, this is taken in a positive light.
The material before me provides me with only a limited understanding of the economic or other benefit arising from the licence. Although this is the case, given it is an exploration licence and given the lack evidence to the contrary from the native title parties, 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 licence: 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 licence. Minister for Lands v Thalanyji at [266] provides useful commentary on this criteria.
SoAstute submits that the public interest supports the grant of the proposed licence (joint submissions [9]) with the State relying on the statement by SoAstute and agreeing it can be taken into account (joint submissions [11]). The native titles parties make 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 to just one exploration licence, in the context of Western Australia v Thomas and given the absence of evidence to the contrary from the native title parties, I am satisfied there is general public interest in the grant of the licence 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 licence be granted and, if so, should conditions be applied?
Having regard to my consideration of the matters in s 39, I am satisfied that the licence may be granted.
I have scrutinised the conditions and endorsements which the State proposes to impose on the grant of the licence 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 licence E80/5523 may be done.
Mr G Kelly
Member
6 February 2023
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