Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration Nl/State of Western Australia
[2006] NNTTA 26
•24 March 2006
NATIONAL NATIVE TITLE TRIBUNAL
Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, [2006] NNTTA 26 (24 March 2006)
Application No: WF06/6
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Angus Abdullah and Others on behalf of Njamal (WC99/8) (Applicant/native title party)
- and -
Tyson Resources Pty Ltd (grantee party)
- and -
Wedgetail Exploration NL (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 24 March 2006
Catchwords: Native title – future act – application for determination for the grant of mining leases – named applicants not signed agreements – decision making process – native title party as a whole consent to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109, 203BC(2)(b)
Cases:BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 24 March 2006
Counsel for the Justin Cvitan, Yamatji Marlpa Barna Baba Maaja
native title party: Aboriginal Corporation
Representative of the Mr Peter del Fante
grantee party: Corporate Tenement Services
Representatives of the Mr Rod Wahl, State Solicitors Office
Government party: Ms Melanie Jorgensen, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 12 June 2002 and 9 February 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of mining leases M46/261 and M46/225 ('the proposed licences') under the Mining Act 1978 (WA) respectively to Tyson Resources Pty Ltd and Wedgetail Exploration NL (‘the grantee parties’). Wedgetail Exploration NL are now the beneficial owners of M46/261 and have acted for both grantees in these proceedings.
The size, location and registered native title claim overlaps for the proposed licences are as follows:
· M46/261 – 933 hectares, 12 kilometres easterly of Nullagine in the shire of East Pilbara, overlapping the Njamal registered native title claim (WC99/8, registered from 3 June 1999) at 100%
· M46/225 - 0.4 hectares, 33 kilometres westerly of Nullagine in the shire of East Pilbara, overlapping the Njamal (WC99/8) registered native title claim at 100%.
The native title party with respect to these proceedings is:
· Mr Angus Abdullah, Mr Barry Taylor, Mr Biddy Norman, Mr Colin Malana, Mr Dan Murphy, Mr Eddie McPhee, Name Withheld for Cultural Reasons, Mr Ernie Johnson, Mrs Jan Taylor, Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Peter Coppin, Mr Rodney Monaghan, Mr Teddy Allen, Ms Alice Mitchell, Ms Lorraine Williams on behalf of Njamal (WC99/8)
On 6 February 2006, being a date more than six months after the s 29 notices were given, the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) made an application (subsequently amended) pursuant to s 35 of the Act for a future act determination under s 38 on behalf of the native title party.
The native title party requested that the future act determination be made by consent. The following draft minute of a consent determination was later provided, executed by Mr Justin Cvitan (YMBBMAC) on behalf of the native title party, Mr Peter del Fante (Corporate Tenement Services) on behalf of the grantee party, and Mr Trevor Crewell (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Mining Licences M46/261 and M46/225 may be done.’
The Tribunal has the 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 party) are legally represented and those representatives have advised the Tribunal of the consent. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The native title party has provided evidence in the form of an affidavit dated 2 February 2006 of Christina Araujo solicitor employed by YMBBMAC who represents the native title party. Ms Araujo deposes:
‘6.The Njamal native title claim group has adopted a process of decision making in relation to the making of the Njamal claim and dealing with matters arising from it, including entering into agreements about the doing of future acts that attract the right to negotiate.
7.The Njamal native title claim group has authorised 12 members of the native title claim group to deal with day to day matters arising from the Njamal claim including dealing with matters relating to Aboriginal Heritage and exercising procedural rights pursuant to Part 2 Division 3 of the Native Title Act (Cth) 1993. Those persons are known as the Njamal working group.
8.The Njamal working group has met with representatives of Wedgetail on several occasions throughout 2005. I attended each meeting and provided legal advice.
9.On 2 November 2005 the Njamal working group reached an agreement with Wedgetail about the grant of the mining lease applications.
10.I am satisfied that on the basis of the resolutions of the Njamal working group that the Njamal native title claim group consents to the grant of the mining lease applications in accordance with their agreed decision making process and have given their consent to a determination that the mining lease applications be granted'
The inquiry
On 24 March 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr Cvitan, counsel for the native title party, confirmed that as stated in the affidavit of Christina Araujo, he and YMBBMAC had been properly instructed by the native title party to consent to the determination.
Findings
The Tribunal was informed that two of the 16 persons named as the applicant (Mr Angus Abdullah and Mr Eddie McPhee) had not executed an Ancillary Agreement or s 31(1)(b) State Deed, because of difficulties in locating them. Nevertheless, I am satisfied that the Njamal native title party have consented to the determination in accordance with a process of the kind referred to in s 203 BC(2)(b) of the Act.
My findings are the same as those made in BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner at [13] which also involved the Njamal claimants. I also adopt my findings in para [14] of that determination (a native title party is all the persons named as part of the applicant acting jointly and not each individual named person – Monkey Mia at [19]-[21]) and para [20] (a representative body has a formal responsibility under the Act to represent and protect the interests of native title parties and the Tribunal is to carry out its functions in an informal and prompt way and is not bound by technicalities, legal forms or rules of evidence (s 109)).
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of:
· mining lease M46/261 to Tyson Resources Pty Ltd; and
· mining lease M46/225 to Wedgetail Exploration NL, may be done.
Hon C J Sumner
Deputy President
24 March 2006
3
2
0