Anthony Watson and Others on behalf of the Nyikina and Mangala/Western Australia/Blackfin Pty Ltd
[2008] NNTTA 27
•27 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Anthony Watson and Others on behalf of the Nyikina and Mangala/Western Australia/Blackfin Pty Ltd, [2008] NNTTA 27 (27 February 2008)
Application No: WF08/3
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
Anthony Watson and Others on behalf of the Nyikina and Mangala (WC99/25) (Applicant/native title party)
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The State of Western Australia (Government party)
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Blackfin Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 27 February 2008
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants unable to execute State Deed – Heritage Protection Agreement entered into – native title party as a whole consents to the determination – logistical difficulties – determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, NNTT WF07/18 and WF07/19, [2007] NNTTA 78 (11 September 2007), John Catlin
Hearing date: 22 February 2008
Representative of the Mr Robert Houston
native title party: Kimberley Land Council
Representative of the Shannon McMahon
grantee party: McMahon Mining Title Services Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 15 May 2002, 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 exploration licence E04/1219 (‘the proposed licence’) under the Mining Act 1978 (WA) to Blackfin Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of some 230.8 square kilometres located 99 kilometres south easterly of Derby in the Shire of Derby/West Kimberley. It is 100 per cent overlapped by the Nyikina and Mangala registered claim (WC99/25, registered from 28 September 1999).
The native title party with respect to these proceedings is Anthony Watson, Daisy Lungunan, David Watson, Del Roe, Elizabeth Riley, George Riley, James Watson, John Watson, Lionel Jumburra, Lucy Marshall, Mary Watson, Maude Ningella, Neil Buckle, Neville Poelina, Patsy Yamboo, Peter Francis, Sammy Ah Choo and Willie Lennard on behalf of Nyikina and Mangala (WC99/25)
On 30 August 2002 the native title party lodged an objection to the expedited procedure application with the Tribunal in respect of the proposed licence (designated WO02/452). Following negotiations, parties sought a consent determination from the Tribunal the expedited procedure did not apply. On 26 September 2003 the Tribunal made the consent determination and the normal negotiation procedure as contemplated by s 31 of the Act commenced from that date.
On 7 February 2008, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. At paragraph 10 of the application, the native title party stated that an ancillary agreement had been reached with the grantee party.
Attached to the application is the affidavit of Ms Cara Margaret Peek, Legal Officer of the Kimberley Land Council Aboriginal Corporation (‘the KLC’) affirmed in September 2007 in the following terms:
‘I Cara Margaret Peek of 85 Anne Street Broome, in the State of Western Australia. Solicitor, solemnly and sincerely declare and affirm:
1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’) and work in the Broome Office.
2.On or about July 2005 the KLC received a notice pursuant to section 29 of the Native Title Act 1993 (Cth), for Tenements EP10/04-05 & EP11/04-5 which are located within the Nyikina Mangala Native Title Claim area.
3.On or about 16 August 2006, the Nyikina and Mangala Native Title Claim Group instructed the KLC to do the following
a) Negotiate and enter into Native Title and Heritage Protection Agreement (HPA) with Grantees (Exploration and Mining Companies) seeking access to traditional lands, on the terms and conditions as contained in the KLC Standard HPA, as approved by the Executive from time to time.
b) To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA.
c) To negotiate with existing Exploration/Mining Tenement holders to require the Grantee to do a heritage clearance before staring any on-ground activities
4.The KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee Party to enter into a Native Title and Heritage Protection Agreement (‘HPA’)
5.On or about April 2007, the parties reached agreement that that the future act may be done, subject to the terms and conditions of the HPA.
6.On or about 9 May 2007 I attended a meeting at Myroodah Crossing with the Nyikina and Mangala Native Title Claim group and Brendan Renkin, then the Future Acts Legal Officer at the Kimberley Land Council.
7.Brendan Renkin is no longer employed at the Kimberley Land Council and the information deposed in this affidavit is based on my own direct observation of events.
8.At that meeting I was present when Brendan Renkin explained the contents HPA that had been negotiated with Rey Resources on behalf of the Nyikina and Mangala Native Title Claim Group.
9.After some group discussion and further clarification by Brendan Renkin of the main points in the agreement, the group agreed to the terms negotiated by the KLC on their behalf.
10.The Applicant for the Nyikina and Mangala Native Title Claim agreed to the terms of the HPA as negotiated by the KLC on their behalf.
11.Brendan Renkin said to the group words to the effect that “as this matter is going the right to negotiate scheme the State requires that an additional document called the State Deed to be executed by the named applicants. This deed confirms that the claim group has authorised the agreement, negotiated in good faith and won’t seek compensation from the state.”
12.In light of the difficulties in obtaining all the necessary signatures for the State Deed, and the standing instructions on which the KLC act, the KLC proposes instead to enter into a Consent Determination in order to give effect to the HPA.
13.I believe that entry into a Consent Determination is consistent with the instructions of the claimants.
14.The preceding paragraphs are true and correct to the best of my knowledge and belief.’
Also attached to the application is the affidavit of Mr Robert Grant Houston, legal officer of the KLC affirmed 8 February 2008 in the following terms:
‘I, Robert Grant Houston of 56 Robinson Street, Broome, in the State of Western Australia, Solicitor, solemnly and sincerely declare and affirm:
1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’) and work in the Broome Office.
2.The KLC, on behalf of the Native Title party, entered into negotiation with the Grantee Party to enter into a Native Title and Heritage Protection Agreement (‘HPA’) in relation to exploration tenements on Nyikina Mangala land.
3.On or about 2 July 2007, the parties reached agreement that the exploration tenement should be granted, subject to the terms and conditions of the HPA.
4.On or about 13 January 2008 the parties agreed that Tenements E04/1219 and E04/1518 would be added as tenements covered by the HPA. This is consistent with the instructions of the claimants.
5.I believe that entry into a Consent Determination is consistent with the instructions of the claimants.
6.The preceding paragraphs are true and correct to the best of my knowledge and belief.’
Also attached to the application is a minute of consent determination in the following terms executed by Mr Nolan Hunter, Deputy Director of the KLC; Julian Ludowici, a director on behalf of the grantee party; and subsequently by Mr Jeff O’Halloran, State Solicitors Office for the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)
1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993.
2.The Government Party, the Native Title Parties and the Grantee Party has complied with the requirements of section 31(1)(b) of the Native Title Act1993.
3.The Government Party, the Native Title Parties and the Grantee Party consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 04/1219 may be done.’
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 their consent. The KLC is the recognised representative body under the Act for the native title party. 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
On 22 February 2008 a hearing was conducted at which all parties were represented and confirmed their consent in the terms sought. In particular, Mr Houston for the native title party confirmed he had instructions to consent to the grant of the tenement.
Findings
On the basis of the affidavits of Ms Peek and Mr Houston, and the information provided by native title party’s counsel at the above hearing, I am satisfied that the native title party has agreed to the grant of the proposed licence and consents to a determination in the terms sought. The Tribunal has previously accepted the difficulties experienced by the KLC in obtaining the signatures of the native title party to a State Deed as a basis for a consent determination (Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, NNTT WF07/18 and WF07/19, [2007] NNTTA 78 (11 September 2007), John Catlin) and I adopt the relevant findings in that matter, notably paragraph 9.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E04/1219 to Blackfin Pty Ltd, may be done.
Daniel O’Dea
Member
27 February 2008
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