Albert Darby Winder and Others on behalf of The Malgana Shark Bay People/Violet Drury and Others on behalf of the Nanda People/State of Western Australia/Conarco Minerals Pty Ltd
[2012] NNTTA 23
•14 March 2012
NATIONAL NATIVE TITLE TRIBUNAL
Albert Darby Winder and Others on behalf of The Malgana Shark Bay People/Violet Drury and Others on behalf of the Nanda People/State of Western Australia/Conarco Minerals Pty Ltd, [2012] NNTTA 23 (14 March 2012)
Application No: WF11/16
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
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Albert Darby Winder and Others on behalf of The Malgana Shark Bay People (WC98/17) (Malgana native title party/applicant)
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Violet Drury and Others on behalf of the Nanda People (WC00/13) (Nanda native title party)
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The State of Western Australia (Government party)
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Conarco Minerals Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 14 March 2012
Catchwords: Native title - future act - application for determination for the grant of exploration licences - named applicant not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38, 109, 203
Mining Act1978 (WA)
Cases:Ike Simpson and Others on behalf of the Wajarri Yamatji People/Joan Burge and David John Burge/State of Western Australia, [2010] NNTTA 160
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50
Hearing date: Determined on the papers
Representatives of the Mr Rod Wahl, State Solicitor’s Office;
Government party: Mr Dave Thomson, Department of Mines and Petroleum
Representative of the
native title party: Mr Ryan Eaton, Yamatji Marlpa Aboriginal Corporation
Representative of the Ms Cheryl Edwardes & Ms Ailan Tran,
grantee party: Hancock Prospecting Pty Ltd
REASONS FOR FUTURE ACT DETERMINATION
On 26 March 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licences E09/1488, E09/1491, E09/1492, E09/1493 and E09/1494 (‘the proposed licences’) under the Mining Act1978 (WA) to Conarco Minerals Pty Ltd (‘the grantee party’).
The proposed licences are located in the Shire of Shark Bay and the area and locations of each are as follows:
· E09/1488 – 527.82 square kilometres, 108 kilometres south east of Denham;
· E09/1491 – 613.57 square kilometres, 128 kilometres south east of Denham;
· E09/1492 – 583.1 square kilometres, 145 kilometres south east of Denham;
· E09/1493 – 552.96 square kilometres, 119 kilometres south east of Denham; and
· E09/1494 – 405.63 square kilometres, 92 kilometres south east of Denham.
The registered native title claimants and native title parties in these proceedings are:
· Albert Darby Winder and Others on behalf of the Malgana Shark Bay People (WC98/17) (‘Malgana native title party’) registered from 30 March 1998 and Violet Drury and Others on behalf of the Nanda People (WC00/13) (‘Nanda native title party’) registered from 1 March 2001 in relation to E09/1488, E09/1491 and E09/1492; and
· Albert Darby Winder and Others on behalf of the Malgana Shark Bay People (WC98/17) registered from 30 March 1998 in relation to E09/1493 and E09/1494.
The proposed licences are affected by the registered native title claims to the following extent:
· E09/1488 – overlapped 69.06 per cent by the Malgana native title party; and overlapped 30.94 per cent by the Nanda native title party;
· E09/1491 – overlapped 70.85 per cent by the Malgana native title party; and overlapped 29.15 per cent by the Nanda native title party;
· E09/1492 – overlapped 82.80 per cent by the Malgana native title party; and overlapped 17.20 per cent by the Nanda native title party;
· E09/1493 – overlapped 100 per cent by the Malgana native title party; and
· E09/1494 – overlapped 100 per cent by the Malgana native title party.
On 24 November 2008, the Malgana native title party sought mediation assistance under s 31(3) of the Act in relation to the proposed licences and I was appointed as the member to provide the assistance for that matter. Mediation was finalised on 21 December 2011 on the basis that an agreement had been reached.
On 21 December 2011, being a date more than six months after the s 29 notice was given, Yamatji Marlpa Aboriginal Corporation (‘YMAC’) on behalf of the Malgana native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licences. The application requested that the future act determination be made by consent. The parties have consented to my dealing with the application.
Appended to the application was a minute of a consent determination in the following terms executed by Mr Ryan Eaton as representative of the native title party, and subsequently executed by Mr Rod Wahl of the State Solicitor’s Office for the Government party and Mr John Innes for the grantee 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 Exploration Licences 09/1488, 09/1491 to 09/1494 inclusive may be done.’
The basis on which YMAC believes it is authorised to bring a consent determination application on behalf of the Malgana native title party is set out in the affidavit of Ryan John Eaton sworn on 21 December 2011. This affidavit was appended to the s 35 determination application and the pertinent paragraphs are set out below:
‘...
11. The Malgana Working Group met on 9 November 2010 in Denham to discuss the Tenements, amongst other business. Hancock Prospecting on behalf of the Grantee attended this meeting and in my presence, an agreement was reached between the Malgana Working Group and the Grantee as to the Tenements.
Signatures of the Applicant
12. After the 9 November 2010 meeting, a State Deed in respect to the Tenements was provided via email to YMAC by Dave Thomson of the Department of Mines and Petroleum.
13. After receiving the State Deed, I arranged for YMAC’s Community Liaison Officers to start obtaining the signatures of the Applicant to the Malgana People.
14.As of the date of this Affidavit, there are approximately 38 persons who comprise the Applicant of the Malgana People. Of these, the following persons are deceased:-
I.Allen Mitchell
II.Charles Mitchell
III.John Winder
IV.Ralph Reginald Wear
V.Nora Fossa
VI.Sylvia Drage
15.Mona Oakley is one of the persons described in the list of persons comprising the Malgana Applicant. I am aware that in 2009, Mona Oakley was the subject of proceedings in the State Administrative Tribunal concerning certain matters arising in relation to the Guardianship and Administration Act 1990 (WA), which proceedings resulted in an Order that Lance Cameron be appointed as plenary administrator of Mona Oakley’s estate. As such, Mona Oakley is unable to sign documents in her own right.
Annexed hereto and marked “RJE-1” is a copy of the Order of the SAT in respect to Mona Oakley heard on 22 May 2009.
16.In or about November 2011, I contacted Dave Thomson of DMP to advise of Mona Oakley’s circumstances. DMP received advice from the State Solicitor’s Office that Lance Cameron could execute the State Deed on Mona Oakley’s behalf. Acting on this advice, YMAC have attempted to contact Lance Cameron on a number of occasions to arrange his signature. Such efforts include:-
I.Using the address provided in the Order, YMAC obtained the phone number of the last known contact address of Mr Cameron. Notably, this address was listed as being in Esperance in the State of Western Australia. Despite leaving numerous messages on the phone number obtained, we have not received a call back from this number.
II.Searching the internet and more specifically, White Pages, for contact details of any person with the last name Cameron residing in Esperance. This resulted in YMAC obtaining 2 different phone numbers, though neither person who answered these phones knew Lance Cameron.
III.Contacting the family of Mona Oakley. Unfortunately, not any of these seemed to know Lance Cameron, and of the few that did, neither claimed to know any contact information.
17.YMAC have obtained the signature on the State Deed of all persons comprising the Malgana Applicant whom are able to sign the State Deed, save for that of Lance Cameron.
Annexed hereto and marked “RJE-2” is a true and correct copy of the State Deed referred to.
18.I am satisfied that the Malgana People consents to this future act determination as a result of the matters set out in paragraphs 11 to 17 above on the basis that had YMAC been able to get in contact with Lance Cameron, then it is likely that the State Deed would have been signed by all the persons comprising the Malgana Applicant and the act, namely the granting of the Tenements, could be done.’
In relation to the Nanda native title party, information was provided to the Tribunal in the course of the Tribunal assisted mediation, and confirmed at the s 35 Preliminary Conference on 15 February 2012, that negotiations with the Nanda native title party in relation to E09/1488, E09/1491 and E09/1492 have reached an in principle agreement and will be finalised shortly by way of a State Deed. At the time of making this determination the Tribunal was yet to receive advice from the Department of Mines and Petroleum that the State Deed had been lodged. Therefore, I make this determination on the basis that the grant of the three tenements overlapped by the Nanda claim will not proceed until such time as a fully executed State Deed is lodged or the matter is finalised by other means (i.e. by way of a further s 35 application). As a result it has not been necessary for the Nanda native title party to be represented in these proceedings. YMAC is the recognised representative body under the Act for the Malgana native title party. I am satisfied that the Malgana native title party has agreed to the grant of the proposed licences. However, because the State Deed relating to the Malgana native title party has not been executed by all the living persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination (Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50 (‘Monkey Mia’)).
The Inquiry and findings
On the basis of the information contained in the application, attached affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
I accept, based on the evidence provided in the affidavit of Mr Eaton, that the Malgana Working Group has the authority of the persons comprising the applicant for the Malgana Shark Bay People Claim to consent to the doing of the act. As the representative body under the Act, YMAC have a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing the applicant in relation to their claim and future act matters (s 203BB(1)(b)) and ensuring that the persons they represent understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). As such, the Tribunal is entitled to accept as evidence the advice of YMAC’s representative that the appropriate consent has been given by the native title party.
The Tribunal has previously considered the issue of whether it is appropriate to make a determination by consent in the event that a named applicant is unable or unwilling to sign an Ancillary Agreement or State Deed (see for example Ike Simpson and Others on behalf of the Wajarri Yamatji People/Joan Burge and David John Burge/State of Western Australia, [2010] NNTTA 160). The facts in that matter are similar to those deposed to in this case. The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [19]-[21]). In this matter I am satisfied that, based on the evidence provided to the Tribunal, the persons comprising the applicant, acting collectively, have consented to the grant of the proposed tenements and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that:
a)The acts, namely the grant of Exploration Licences E09/1493 and E09/1494 to Conarco Minerals Pty Ltd, may be done; and
b)The acts, namely the grant of Exploration Licences E09/1488, E09/1491 and E09/1492 to Conarco Minerals Pty Ltd, may be done but only in so far as they are coextensive with the Malgana Shark Bay People Native Title Claim (WC98/17).
Daniel O’Dea
Member
14 March 2012
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