NATIONAL NATIVE TITLE TRIBUNAL POZ Minerals Ltd v Timothy Carter & Others on behalf of Warrwa and Another [2017] NNTTA 65 (23 October 2017) Application No: WF2017/0009; WF2017/0012 IN THE MATTER of the Native Title Act 1993 (Cth) - and - IN THE MATTER of an inquiry into a future act determination application POZ Minerals Ltd (grantee party) - and – Timothy Carter & Others on behalf of Warrwa (WC2014/004) (first native title party) - and – Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/0009) (second native title party) - and - State of Western Australia (Government party) FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE Tribunal: Ms H Shurven, Member Place: Perth Date: 23 October 2017 Catchwords: Native title – future act – application for determination for the grant of 2 mining leases – s 39 criteria considered – determination that the acts may be done Legislation: Native Title Act 1993 (Cth) ss 38, 39 Mining Act 1978 (WA) s 85 Aboriginal Heritage Act 1972 (WA) Cases: Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73; Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124; Representative of the Ms April French, Austwide Legal Pty Ltd grantee party: Representative of the Mr Jonathan Fulcher, HopgoodGanim Lawyers first native title party: Representative of the Mr Aidan Kelly, Wojtowicz Kelly Legal second native title party: Representatives of the Mr Domhnall McCloskey, State Solicitors Office Government party: Mr Dennis Jacobs, Department of Mines, Industry Regulation & Safety 3 REASONS FOR DETERMINATION Background [1] On 13 July 2016, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the proposed grant of mining lease applications M04/465 and M04/464 (the leases) to Phosphate Australia Limited. The company is commonly referred to throughout the papers submitted in this inquiry as ‘POZ’, which is its Australian Stock Exchange reference. The company changed its name to POZ Minerals Ltd after the s 29 notice was issued, and the abbreviation ‘POZ’ has been adopted in this determination. The leases are in the Shire of Derby West Kimberley. M04/465 is approximately 126 hectares and M04/464 is approximately 222 hectares in size. The rights which would be conferred by the proposed leases are set out in s 85 of the Mining Act 1978 (WA) (‘Mining Act’). Both leases are to be part of a project related to diamond mining. [2] The area affected by the proposed leases is subject to a registered native title claim made on behalf of the Warrwa people. Because of this, the registered native title claimant for the Warrwa claim (Warrwa) have certain procedural rights in relation to both of the proposed leases, including the right to negotiate about the doing of acts on the land. The Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate (BDAC) also hold native title rights and interests in the area of the mining lease application M04/465, and so have the procedural right to negotiate in relation to the granting of that lease (see s 30(1)(a) and s 31 of the Act). [3] Parties undertook negotiations but were unable to reach agreement of the kind specified in s 31(1)(b) of the Act about the grant of the leases. [4] On 19 June 2017 and 28 June 2017, POZ made applications under s 35 of the Act, for the National Native Title Tribunal to make a future act determination under s 38 of the Act in relation to each of the proposed leases. I was appointed by the President of the Tribunal to conduct the inquiry into the applications. 4 Preliminary issues [5] Neither BDAC nor Warrwa made allegations of lack of good faith against POZ or the State, and so I was able to proceed to issue directions requesting each of the parties to make submissions regarding the criteria outlined in s 39 of the Act, which is the basis upon which I must make my decision in future act determination applications. [6] Parties attended a preliminary conference and made submissions in accordance with the directions. At a listing hearing on 6 October 2017, BDAC’s representative indicated that while it had made submissions in accordance with the directions as required by the inquiry process, it had now reached a point with POZ where they were happy to withdraw their submissions in their entirety. BDAC understood that I would be proceeding to decide these future act determination applications, including M04/465, which overlaps BDAC determined land. I have not, therefore, considered the contentions previously submitted by BDAC in this matter. [7] At a hearing on 13 October 2017, Marshall McKenna, on behalf of POZ, advised that negotiations had reached a point where Warrwa now consented to a determination being made that the acts may be done without conditions. Warrwa’s initial contentions had submitted that their position was a determination may be made subject to conditions. At the same hearing, Warrwa’s representative confirmed Warrwa consented to a determination being made, for each lease, that the act may be done without conditions. [8] In relation to the grant of each mining lease, I must determine either that the act must not be done, that the act may be done, or that the act may be done subject to conditions (see s 38 of the Act). Even though Warrwa consent to a determination that the acts may be done, I must assess the evidence provided by parties in terms of the criteria in s 39 of the Act (see Western Australia v Thomas at 165–166). As BDAC have actually withdrawn its submissions, I do not include consideration of their materials in this analysis. [9] I outline my consideration of relevant material in respect of each criterion below, noting that I consider some criteria together. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to each criterion 5 will depend on the evidence. I must also take all reasonable steps to make a determination as soon as practicable (see ss 36 and 37 of the Act). Assessing the s 39 criteria Section 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests of BDAC and Warrwa Section 39(1)(a)(ii) – way of life, culture and traditions of BDAC and Warrwa Section 39(1)(a)(iii) – development of social, cultural and economic structures of BDAC and Warrwa Section 39(1)(a)(iv) – freedom of access and freedom to carry our rites and ceremonies of BDAC and Warrwa [10] POZ submitted the interests set out in these criteria were considered in the course of negotiations and consultations with BDAC and Warrwa, and BDAC have indicated they are sufficiently satisfied with their negotiations that they are withdrawing their materials from this inquiry. Warrwa state they do not intend to respond to these criteria and have subsequently advised that they consent to a determination the acts may be done. POZ argued that factors such as the interests, rights, ceremonies, social, cultural or economic structures of Warrwa and BDAC would not be significantly interfered with or affected by mining activities of POZ, as those activities will be conducted in accordance with best industry practice and as per the Aboriginal Heritage Act 1972 (WA). [11] POZ also submitted the areas of the leases had been subject to previous mining tenure and so any interference by POZ would likely be equivalent to previous interference. POZ have provided a great deal of information in relation to these arguments, which suggests extensive exploration or mining activity has occurred over the relevant areas. [12] In the absence of evidence concerning the Warrwa and BDAC’s enjoyment of its native title rights and interests, and in light of the previous disturbance to the area, I am satisfied the grant of the proposed leases will not have a significant adverse effect on the matters in paragraphs 39(1)(a)(i) - (iv). 6 Section 39(1)(a)(v) – effect on areas or sites of particular significance to BDAC and Warrwa [13] POZ contends there would be no interference with areas or sites of particular significance to Warrwa and BDAC. They provided information and evidence that there are no Aboriginal sites on the leases, as recorded on State registers, and also provided information about previous ethnographic and/or archaeological surveys which had been conducted over the areas. [14] POZ provides material which outlines its awareness of the Aboriginal Heritage Act 1972 (WA) and demonstrates its understanding that the scope of that Act is wider than sites recorded on State registers. POZ also outlined its experience in working co- operatively with Aboriginal groups and advised its intention to continue to work co- operatively with Warrwa and BDAC. [15] In the absence of evidence concerning the existence of or likelihood of interference with sites of particular significance to Warrwa or BDAC, and in light of POZ’s submissions, I am satisfied that POZ’s activities under the leases would not affect areas or sites of particular significance to Warrwa or BDAC. Section 39(1)(b) – interests, proposals, opinions or wishes of BDAC and Warrwa [16] POZ provided a great deal of email and other correspondence, which was generated over the course of their negotiations with Warrwa and BDAC. Parties had attended meetings in Fitzroy Crossing, Derby and Perth in order to meet and engage with each other and materials related to these meeting suggests Warrwa and BDAC’s interests, proposals, opinions and wishes have been considered in negotiations, and there is no other evidence before me to suggest Warrwa and BDAC oppose the grant of the leases.