Angus Abdullah & Others on behalf on Njamal/BGC Contracting Pty Ltd/Western Australia

[2006] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, [2006] NNTTA 14 (16 February 2006)

Application No:        WF05/18

IN THE MATTER of the Native Title Act 1993 (Cth)

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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)

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BGC Contracting Pty Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:Hon C J Sumner, Deputy President

Place:Perth

Date:16 February 2006

Catchwords:        Native title – future act – application for determination for the grant of mining leases – named applicants not signed agreement – native title party as a whole consent to the determination – determination that the act may be done.

Legislation:Native Title Act 1993 (Cth) ss 35, 38

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:  16 February 2006

Counsel for the                  Mr Jason Cvitan, Yamatji Marlpa Barna Baba Maaya Aboriginal

native title party:              Corporation (Pilbara Native Title Service)

Representative of              

the grantee party:             Mr Alan Riley, BGC Contracting Pty Ltd

Representatives of            Mr Rod Wahl, State Solicitor’s Office

the Government party:     Ms Paola O’Neill, Department of Industry & Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 2 June 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of mining leases M45/1022 and M45/1023 (‘the proposed leases’) under the Mining Act 1978 (WA) to BGC Contracting Pty Ltd (‘the grantee party’).

2. All proposed leases are situated in the Shire of East Pilbara and the area, location and percentage to which each of the proposed leases overlap the relevant native title claim is as follows:

• M45/1022 – 151.99 hectares, 89 kilometres westerly of Marble Bar; 100% overlap with the Njamal native title claim boundary; and

• M45/1016 – 173.96 hectares, 89 kilometres westerly of Marble Bar; 100% overlap with the Njamal native title claim boundary.

1. The native title party in respect of these proceedings is:

• Mr Angus Abdullah, Mr Barry Taylor, Mrs Biddy Norman, Mr Colin Malana, Mr Dan Murphy, Mr Eddie McPhee, Mr Ernie Johnson, Mrs Jan Taylor, Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Peter Coppin, Mr Rodney Monaghan, Mr Teddy Allan, Ms Alice Mitchell and Ms Lorraine Williams on behalf of the Njamal  People (WC95/60 – registered from 3 June 1999).

1. On 22 December 2005, being a date more than six months after the s 29 notice was given, the Yamatji Marlpa Barna Baba Maaya Aboriginal Corporation (‘Yamatji’) on behalf of the 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 leases. Paragraph 10 of the application asserts that the native title party and grantee party have reached agreement about the doing of the act and consent to the future act determination pursuant to the terms of the agreement reached. An affidavit of a solicitor employed by Yamatji, Ms Christina Araujo, who represented and provided legal advice to the native title party, was submitted to support the request for the consent determination.

1. The Tribunal has before it a proposed consent determination executed by Mr Justin Cvitan, barrister and solicitor employed by Yamatji on behalf of the native title party, Ms Emma Ganderton, barrister and solicitor of the State Solicitor’s Office for the Government party and Mr Alan Riley for the grantee party in the following terms:

   ‘MINUTE OF PROPOSED 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 (Cth).

   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 (Cth).

   3. The Government Party, the Grantee Party and the Njamal Native Title Party consent to a determination under s.38 of the Native Title Act (Cth) that the “acts” being the grant of mining leases 45/1022 and 45/1023 can be done.’

2. 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 party) are legally represented and those representatives have advised the Tribunal of the consent. Yamatji is the designated representative body under the Act for the area covered by the Njamal claim and has represented the native title party in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service. 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 inquiry

1. On 16 February 2006 the Tribunal conducted a hearing at which all parties confirmed their consent to the determination in the terms of this Minute.  The native title party was represented in this hearing by Mr Justin Cvitan.  He advised that he was satisfied that he and Yamatji had been properly instructed by the native title party to consent to the determination.  Mr Cvitan also confirmed that the affidavit sworn by Ms Christina Araujo was consistent with the approach taken in other matters by the native title party of which he is aware.

Findings

1. In the affidavit lodged with the determination application, Ms Araujo sets out, from her personal knowledge, the Njamal native title party’s decision making process and steps taken in that process leading to the claim group’s decision regarding the agreement with BGC Contracting Pty Ltd. Namely, that at a claim group meeting convened on 30 November 2004, the Njamal native title party unanimously resolved to accept the agreement negotiated with BGC Contracting Pty Ltd on their behalf by the Njamal working group (a subset of the applicants authorized to deal with such matters on behalf of the wider claim group).  The claimants further resolved that the claim group as a whole consented to the grant of the proposed leases.

2. Ms Araujo further deposes that 14 of the 16 named applicants subsequently signed a document setting out the terms of the agreement reached between the Njamal native title party and BGC Contracting Pty Ltd. The two named applicants who have not yet signed are identified as Angus Abdullah and Eddie McPhee. It is not clear whether this is because they oppose the agreement or there have been logistical difficulties in obtaining their signatures. 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 203BC(2)(b) of the Act.

3. 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)).

4. Ms Araujo also deposes that the agreement entered into deals with matters often included in agreements of this kind including ongoing consultation, employment, training and business opportunities for Njamal claimants and compensation, which supports the making of a consent determination.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of Mining Leases 45/1022 and 45/1023 to BGC Contracting Pty Ltd, can be done.

Hon C J Sumner

Deputy President

16 February 2006