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NATIONAL NATIVE TITLE TRIBUNAL Kallenia Mines Pty Ltd and Others V Walalakoo Aboriginal Corporation RNTBC and Another [2016]

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NATIONAL NATIVE TITLE TRIBUNAL Kallenia Mines Pty Ltd and Others V Walalakoo Aboriginal Corporation RNTBC and Another [2016] NATIONAL NATIVE TITLE TRIBUNAL Kallenia Mines Pty Ltd and Others v Walalakoo Aboriginal Corporation RNTBC and Another [2016] NNTTA 50 (9 November 2016) Application Nos: WF2015/0012, WF2015/0013, WF2015/0017, WF2015/0018, WF2015/0021 IN THE MATTER of the Native Title Act 1993 (Cth) - and - IN THE MATTER of an inquiry into future act determination applications Kallenia Mines Pty Ltd (first grantee party) - and - Pilbara Chemical Corporation NL (second grantee party) - and - Walalakoo Aboriginal Corporation RNTBC (WCD2014/003) (first native title party) - and - Yawuru Native Title Holders Aboriginal Corporation RNTBC (WCD2006/001) (second native title party) - and - The State of Western Australia (Government party) FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE Tribunal: Mr JR McNamara, Member Place: Brisbane Date: 9 November 2016 Hearing date: On the papers Catchwords: Native title – future act – application for determination for the grant of exploration licences – procedural issues – acceptance of forms lodged – weight to be given to prior agreements – s 39 criteria considered – effect of act on native title rights and interests – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title parties – economic or other significance of act – public interest in doing of act – effect of act on the environment – age of the applications – proposed conditions – determination that the acts may be done. 2 Legislation: Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth), ss 30(1), 31(1), 32(7), 35(1), 37, 38, 39(1), 39(4), 41, 52, 52A, . Mining Act 1978 (WA) Cases: Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal v Gomeroi’) Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, [2012] NNTTA 31 (‘Drake Coal v Smallwood’) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia (2015) 233 FCR 96; [2015] FCA 560 (‘Hale v Western Australia’) Mineralogy Pty Ltd v National Native Title Tribunal & Ors (1997) 150 ALR 467; [1997] FCA 1404 (‘Mineralogy Pty Ltd v National Native Title Tribunal’) Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’) Northern Territory/Ben Ward and Others on behalf of the Miriuwung & Gajerrong People; Moses Silver, Ishmael Andrews & Sammy Bulabul; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham & Gabriel Hazelbane; Michael Page; Button Jones/Ashton Exploration Australia Pty Ltd; Stephen Darryl Moffatt; Grant Archer, David Langley & Jim Kastrissios; Arafura Resources N/L; Michael Daniel Teelow [2001] NNTTA 163 (‘Northern Territory v Ward’) Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurruma and Pinikura People; Puutu Kunti Kurruma and Pinikura People #2/Western Australia [2011] NNTTA 80 (‘Magnesium Resources v Puuntu Kunti Kurruma and Pinikura’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Rubibi Community v Western Australia (No 7) [2006] FCA 459 (‘Rubibi v Western Australia’) Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna [2011] NNTTA 53 (‘Seven Star v Freddie’) Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’) Western Australia/Leo Winston Thomas & Ors on behalf of The Waljan People; Ted Coomanoo Evans & Richard Guy Evans on 3 behalf of the Koara People; Quinton Paul Tucker & Ors on behalf of the Ngurludharra Waljan Clan; Dimple Sullivan on behalf of the Tjinintjarra Family Group; Sadie Canning on behalf of the Thithee Birni Bunna Wiya People; Trevor Brownley & Ors on behalf of the Bibila Lungkutjarra (Waljen) People; Thomasisha Passmore on behalf of the Milangka-Purungu (Wongatha) People/Anaconda Nickel Ltd, (1999) 164 FLR 120; [1999] NNTTA 99 (‘Western Australia v Anaconda’) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’) William Robert Richmond and Another v Walalakoo Aboriginal Corporation RNTBC [2015] NNTTA 20 (‘Richmond v Walalakoo’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’) Representative of the first grantee party Mr William Richmond, Kallenia Mines Pty Ltd Representative of the second grantee party Mr Douglas Mitchell, Pilbara Chemical Corporation NL Representative of the first native title party Ms Justine Toohey, Kimberley Land Council Representatives of the Mr Glenn Archer, Nyamba Buru Yawuru Ltd second native title party Ms Caitlin Fegan, Nyamba Buru Yawuru Ltd Representatives of the Ms Sarah Power, State Solicitor’s Office Government party Ms Faye Mitchell, Department of Mines and Petroleum 4 REASONS FOR DETERMINATION Background [1] This decision concerns five applications made to the National Native Title Tribunal seeking a determination that exploration licences E04/1542, E04/1543, E04/1544, E04/1546 and E04/1440 (collectively ‘the licences’) may be granted. This determination was sought on the basis that parties had been unable to reach agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (‘the Act’). [2] In 2006, the State of Western Australia gave notice of its intention to grant the licences to Kallenia Mines Pty Ltd (and Pilbara Chemical Corporation NL in the case of E04/1440) under the Mining Act 1978 (WA). The notices included a statement to the effect that the State considers the expedited procedure applies to the grant of these licences. [3] The Yawuru Native Title Holders Aboriginal Corporation RNTBC (‘Yawuru’) holds native title over parts of the five licences, following the native title claim determination of the Yawuru People in April 2006. The Walalakoo Aboriginal Corporation RNTBC (‘Walalakoo’) holds native title over parts of two of the licences following the Nyikina Mangala People’s native title claim determination in May 2014. [4] On 16 December 2008, the State notified the Tribunal that the expedited procedure statement had been withdrawn for each of the licences, as per s 32(7) of the Act. Accordingly the normal negotiation procedure outlined at s 31(1) of the Act applies to these licences and Yawuru and Walalakoo have the right to negotiate with the grantee party and the Government party with a view to reaching an agreement about the grant of the licences. [5] Where parties are not able to reach agreement about a grant, and at least six months have passed since the licences were notified, any party may apply for the Tribunal to make a determination. The Tribunal has the power to determine whether or not the grant can be made, and if so, whether any conditions should be included, unless one of the parties satisfies the Tribunal that the grantee or the Government party have not negotiated in good faith. 5 [6] The s 35 future act determination applications were lodged by Mr William Richmond on behalf of Kallenia Mines Pty Ltd and, in the case of WF2015/0017, on behalf of Kallenia Mines and Pilbara Chemical Corporation NL. Following the lodgement of application WF2015/0017, Mr Douglas Mitchell, Director of Pilbara Chemical Corporation, advised the Tribunal that Pilbara Chemical Corporation intends to transfer its interest in the tenement to Kallenia Mines following grant, and that Kallenia Mines would be acting for the grantee parties in this matter. For ease of reference, this determination refers just to Kallenia Mines however, where relevant, this is also a reference to Kallenia Mines as agent for Pilbara Chemical Corporation. [7] The below table sets out relevant information regarding the five applications, including the tenement numbers, grantee party and native title parties in each matter: Tenement Size & Location Grantee Party Native Title Parties (and determined overlaps) E04/1542 227.75km2, 43km Kallenia Mines Pty Yawuru east of Broome Ltd 81.21% exclusive native title; 17.90% non exclusive native title E04/1543 227.77km2, 93km Kallenia Mines Pty Walalakoo south west of Ltd 57.43% non exclusive native title Derby Yawuru 42.57% exclusive native title E04/1544 227.91km2, 72km Kallenia Mines Pty Walalakoo south west of Ltd 9.95% exclusive native title; Derby 68.92% non exclusive native title Yawuru 21.3% exclusive native title E04/1546 227.43km2, 49km Kallenia Mines Pty Yawuru south east of Ltd 62.84% non exclusive native Broome title; 0.37% native title does not exist E04/1440 117.89km2, 30km Kallenia Mines Pty Yawuru south of Broome Ltd & Pilbara 1.85% exclusive native title; Chemical Corporation NL 98.15% non exclusive native title 6 [8] Neither Yawuru nor Walalakoo has alleged the absence of good faith negotiations. As such, this determination is made based on the criteria set out in s 39 of the Act. Material received [9] On 15 December 2015, Kallenia Mines lodged a short email statement titled ‘Contentions s35’ (‘KM Contentions’) together with a schedule of annexures numbered 1-21 and a further unnumbered document. On the same date the Government party lodged its statement of contentions (‘GVP Contentions’). Due to the size and number of annexures, these were subsequently provided to parties by DVD, labelled 1A-7H. [10] On 1 March 2016, Walalakoo lodged its statement of contentions (‘WAC Contentions’) together with annexures 1 and 3. Due to the size of the document that formed annexure 2, Walalakoo provided a web link to this document. On the same date Yawuru lodged its statement of contentions (‘YAC Contentions’) together with the following: Affidavit of Francis Djiagween (‘FD Affidavit’) and annexure FD-1, affirmed on 1 March 2016; Affidavit of Dianne Appleby (‘DA Affidavit’) and annexures DA-1 to DA-2, affirmed on 1 March 2016; Affidavit of Debra Pigram (‘DP Affidavit’), affirmed on 29 February 2016.
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