Aubrey Tigan and Others on behalf of the Mayala Native Title Claimants/Western Australia/; Portman Iron Ore Ltd
[2007] NNTTA 90
•22 October 2007
NATIONAL NATIVE TITLE TRIBUNAL
Aubrey Tigan & Others on behalf of the Mayala Native Title Claimants/Western Australia/
Portman Iron Ore Ltd [2007] NNTTA 90 (22 October 2007)
Application No: WF07/30
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
Aubrey Tigan & Others on behalf of the Mayala Native Title Claimants (WC98/39) (Applicant/native title party)
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The State of Western Australia (Government party)
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Portman Iron Ore Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 22 October 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licence – ancillary agreement – State Deed not executed – logistical difficulties – native title party consents to the determination – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 109
Mining Act 1978 (WA)
Cases:Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006) Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Hearing date: 22 October 2007
Representative of the
grantee party: Ms Pamela Kaye, DLA Philips Fox
Counsel for the
native title party: Ms Annie Phillips, Kimberley Land Council
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
On 30 October 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 E04/1172 (‘the proposed licence’) under the Mining Act 1978 (WA) to Portman Iron Ore 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).
On 28 February 2003, an expedited procedure objection application was lodged with the Tribunal by Aubrey Tigan and Others on behalf of the Mayala native title claimants (native title claim no WC98/39 – registered from 1 July 1998). On 28 August 2003, the objection was determined by consent – expedited procedure does not apply – thereby according the Mayala People full procedural rights in accordance with Part 2 Division 3, Subdivision P of the Act (the right to negotiate about the doing of the proposed act).
The native title party in respect of these proceedings is:
Ms Lorna Hudson, Mr Henry Mowarljarlie, Ms Valarie Wiggan, Mr David Wiggan (Jabi) and Mr Aubrey Tigan (Galiwar) on behalf of the Mayala Claim (WC98/39), (‘the native title party’).
The proposed licence comprises an area of 29.57 square kilometres and is situated 136 kilometres northerly of Derby in the Shire of Derby-West Kimberley. The proposed licence is entirely overlapped by the registered claim of the native title party.
On 29 September 2007, being a date more than six months after the s 29 notice was given, the Kimberley Land Council on behalf of the Mayala People made an application pursuant to s 35 of the Act for a future act determination under s 38 in respect of the proposed licence. It is stated in the application that the grantee party and native title party have reached agreement that the act may be done but that for logistical reasons a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act) has not been executed by those persons collectively comprising the applicant for the Mayala People’s claim.
On 15 October 2007 the Tribunal was provided with a minute of consent determination in the following terms, executed by Mr Wayne Bergmann, Executive Director of the KLC for and on behalf of the native title party, Mr Duncan Price, Chief Operating Officer for Portman Iron Ore Ltd, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of 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 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 each consent to a determination being made under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of EXPLORATION LICENCE 04/1172 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 Inquiry
The Tribunal has received an affidavit of Annie Lizzette Phillips, solicitor employed by the Kimberley Land Council, affirmed 17 October 2007. Ms Phillips relevantly deposes:
‘…
3. On or about 7 May 2007, the KLC (acting on behalf of the Native Title Party) commenced negotiations with Pluton Resources Limited (Pluton) (acting on behalf of Portman) to enter into a Native Title and Heritage Protection Agreement in respect of the Tenement (HPA). Clause 2.1 of the HPA that was negotiated by the KLC with Portman Iron Ore on behalf of the Native Title Claim Group (Portman HPA) states that:
“2.1 Subject to the terms of this Agreement, KLC and the Traditional Owners, agree:
2.1.2 to the grant of the Tenement;
…
2.1.4 to the prompt doing of all things necessary or reasonably required by the Explorer to enable the grant of the Tenement or the conduct of Exploration, including executing any document (including section 31 deeds under the Native Title Act) or otherwise consenting to the grant of the Tenement or the conduct of Exploration within the Tenement Area and lodging that document with any Government Authority or otherwise indicating that consent as may be reasonably requested from time to time by the Explorer”.
4.On 29 June 2007, Portman executed the Portman HPA.
5.On 24 July 2007, the KLC executed the Portman HPA on its own behalf.
6.On or about 21 August 2007, I attended a meeting of the Native Title Claim Group in Derby. At that meeting I explained the contents of the Portman HPA the (sic) Native Title Claim Group. The Native Title Claim Group instructed the KLC as follows:
a. The KLC is authorised to enter into the Portman HPA on behalf of the Native Title Party.
b. The Native Title Party consents to the State Government granting the Tenement to Portman and to the conduct of exploration by Pluton, if Portman and Pluton abide by the terms of the Portman HPA.
c. To enable the State Government to grant the Tenement to Portman, the KLC must do all things necessary to enter into a “Consent Determination”.
7.On 21 September 2007, the KLC executed the Portman HPA on behalf of the Native Title Party.
8.In light of the difficulties in obtaining all the necessary signatures for a “State Deed” and the instructions that have been obtained from the Native Title Party by the KLC, the KLC proposes to enter in a Consent Determination in order to give effect to the Portman HPA.
9.I believe that entry into a Consent Determination is consistent with the instructions of the Native Title Party.’
On 22 October 2007 the Tribunal conducted a hearing at which each of the parties was represented. Ms Annie Phillips for the native title party outlined the steps taken by the KLC to facilitate negotiations between the native title party and Portman Iron Ore’s joint venture partner, Pluton Resources Limited, and confirmed that the native title party had agreed to the grant of the proposed licence and that the KLC had authorisation to consent to a determination that the act be done on the basis of the resolution passed at a meeting of 21 August 2007. No other party contested the making of a consent determination and I am satisfied that the native title party has entered into an ancillary agreement concerned with, inter alia, the protection of its heritage in the subject area.
Findings
The parties are all legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate. The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants in the Kimberley region to a State Deed as a legitimate basis for seeking a consent determination (see for example Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006) Daniel O’Dea). I adopt the findings from paragraph [13] of that determination in relation to the responsibilities of the KLC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. Taking those findings into account I accept the advice of the KLC that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E04/1172 to Portman Iron Ore Ltd, may be done.
John Catlin
Member
22 October 2007
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