Aden Eades and Others on behalf of Southern Noongar/Comet Resources Ltd/State of Western Australia
[2010] NNTTA 26
•4 March 2010
NATIONAL NATIVE TITLE TRIBUNAL
Aden Eades and Others on behalf of Southern Noongar/Comet Resources Ltd/State of Western Australia, [2010] NNTTA 26 (4 March 2010)
Application Nos: WF10/1, WF10/2
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into future act determination applications
Aden Eades and Others on behalf of Southern Noongar (WC96/109) (Applicant/native title party)
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Comet Resources Ltd (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Mr Daniel O'Dea, Member
Place:Perth
Date:4 March 2010
Catchwords: Native title — future acts — applications for determination for the grant of prospecting and exploration licences — logistical difficulties preclude execution of State Deed — native title party as a whole consent to the determination — consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 151
Mining Act1978 (WA)
Cases: Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon Christopher J Sumner, Deputy President
Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President
Hearing date: Determined on the papers
Representative of the Mr Andrew Gay, Blake Dawson
grantee party:
Representative for the Ms Maryse Aranda, South West Aboriginal Land and Sea
native title party: Council
Representatives of the Ms Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of future acts, namely the grant of prospecting licences P74/221, P74/222, P74/223, and exploration licences E74/238 and E74/268 (‘the proposed licences’) under the Mining Act1978 (WA) to Comet Resources NL.
·P74/221, P74/222 and P74/223 – 8 October 1997
·E74/238 – 10 September 1997
·E74/268 – 10 June 1998
Included in these notices was a statement that the Government party considered the grants attracted the expedited procedure (that is, the acts are ones which can be done without the normal negotiations required by s 31 of the NTA).
The proposed licences are located in the Shire of Ravensthorpe and the area and locations of each are as follows:
·P74/221 – 165.88 hectares, 20 kilometres north east of Ravensthorpe
·P74/222 – 40.38 hectares, 20 kilometres north east of Ravensthorpe
·P74/223 – 111.26 hectares, 20 kilometres north east of Ravensthorpe
·E74/238 – 59.88 hectares, surrounds Hopetown
·E74/268 – 114.06 hectares, 46 kilometres south east of Ravensthorpe
The native title party with respect to these proceedings is Aden Eades, Dallas Coyne, Glen Colbung, Jerry Narkle, Justin Miniter and Rita Dempster on behalf of the Southern Noongar Families (WC96/109 registered from 18 November 1996). The Southern Noongar Families claim overlaps E74/238 at 70.13 per cent, E74/268 at 93.08 per cent and P74/221, P74/222 and P74/223 at 100 per cent.
On 22 September 2000 Comet Resources NL registered a change of name to Comet Resources Ltd with the Department of Mines and Petroleum. Accordingly, Comet Resources Ltd is now the grantee party.
Rita Dempster, on behalf of the Southern Noongar People, lodged objections to the expedited procedure statement on 8 December 1997 in relation to P74/221, P74/222, P74/223 and E74/238 (designated WO97/576) and on 3 August 1998 in relation to E74/268 (designated WO98/1003). In all instances the Tribunal determined by consent that the expedited procedure should not apply and the proposed licences became subject to the right to negotiate.
On 5 February 2010, being a date more than six months after the s 29 notices were given, the native title party made applications pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to P74/221, P74/222, P74/223, E74/238 (designated WF10/1) and E74/268 (designated WF10/2) ('the applications'). WF10/2 originally included Wagyl Kaip as a native title party, however subsequent to lodgement the application was amended to remove Wagyl Kaip as a party to the proceedings on the basis that the group is not entitled to procedural rights accorded under Part 2 Division 3 subdivision 3 of the Act.
Paragraph 10 of the applications contains a statement that the parties have not been able to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed licences. Relevantly, paragraph 10(1) of the applications state:
‘1.The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31 (1) (b) of the Native Title Act 1993 (Cth) in respect of the future act.’
Paragraph 10 of the applications states that pursuant to the terms of a Deed of Assignment and Assumption all rights and interests in the proposed licences will be transferred from the grantee party to QNI Western Australia Pty Ltd & Billiton Nickel (Ravensthorpe) Pty Ltd. Relevantly, paragraph 10(2) of the applications states:
‘2.Pursuant to the terms of a Deed of Assignment and Assumption dated May 2001, all rights and interests in the tenements will be transferred from the current tenement holders Comet Resources Ltd to QNI Western Australia Pty Ltd & Billiton Nickel (Ravensthorpe) Pty Ltd ’
On 23 February 2010 the Tribunal was advised by email from Mr Andrew Gay, representative of QNI Western Australia Pty Ltd & Billiton Nickel (Ravensthorpe) Pty Ltd and FQM Australia Nickel Pty Ltd, that as of 10 February 2010 all beneficial interest in the proposed licences was transferred to FQM Australia Nickel Pty Ltd (‘beneficial holder’). It is not possible for the application for the proposed licences to be transferred to the beneficial holder until grant. In the circumstances I am satisfied that the proposed licences will be transferred to the beneficial holder upon grant and that the beneficial holder has authority on behalf of the grantee party for the purposes of the determination.
Appended to s 35 application WF10/1 is a minute of a consent determination in the following terms. This minute was executed in counterpart by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party, Mr Geoff Gishuble, Blake Dawson, on behalf of the grantee party and by Ms Maryse Aranda, Principal Legal Officer of the South West Aboriginal Land and Sea Council (‘SWALSC’) on behalf of the native title party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
1.The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
2.The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3.The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Prospecting Licences 74/211, 74/222, 74/223, and Exploration Licence 74/238 may be done.’
A minute of consent determination appended to application WF10/2, made in similar terms and relating to the grant of Exploration Licence 74/268 has also been executed in counterpart by all parties and provided to the Tribunal.
The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title parties) are legally represented and those representatives have advised the Tribunal of the consent. SWALSC is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon C J Sumner, Deputy President).
The Inquiry Findings
All parties have agreed that the determination could be made on the papers, amongst which included an affidavit from the representative of the native title party attesting to its authority to bring a consent determination application on its behalf with respect to the proposed licences. I am satisfied that I can adequately determine the matter in this manner (s 151(2)).
The affidavit of Ms Aranda, Principal Legal Officer of SWALSC, filed with the Tribunal on 24 February 2010 attests that instructions were obtained from the native title party by the passage of a resolution at the Working Group Meeting held on 21 July 2009. The affidavit of Ms Aranda confirms that the native title party approved an ancillary agreement and instructed SWALSC to carry out all technical procedures necessary for the proposed licences to proceed. A copy of the native title party’s resolution is attached as ‘Exhibit A’ to Ms Aranda’s affidavit and was made in the following terms:
‘It is hereby resolved that:
1.The Working Party endorses the draft Agreement dated 30 June 2009 for the Ravensthorpe Nickel Operations Pty Ltd and directs the registered claimants to execute the final agreement;
2. The Working Party instructs SWALSC to withdraw any objections that have been lodged;
3.The Working Party instructs all named applicants to execute State Deeds in favour of Ravensthorpe Nickel Operations Pty Ltd for the grant of the tenements listed in the Agreement; and
4.The Working Party supports any section 35 application by Ravensthorpe Nickel Operations Pty Ltd to the National Native Title Tribunal for a determination that the tenements be granted.’
The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination (see Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President; Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member) and I adopt the findings in those matters for the purpose of these proceedings. The Tribunal is entitled to accept the evidence of SWALSC’s legal representative on the consent given by the native title party, and in particular for SWALSC to carry out all necessary technical procedures to allow for the proposed licences to proceed, and there is nothing before me to suggest the contrary.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licences P74/221, P74/222, P74/223, and exploration licences E74/238 and E74/268 to Comet Resources Ltd, may be done.
Daniel O'Dea
Member
4 March 2010
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