BC Iron Limited/Elsa Derschow and Others on behalf of Palyku/State of Western Australia

[2014] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

BC Iron Limited/Elsa Derschow and Others on behalf of Palyku/State of Western Australia, [2014] NNTTA 11 (23 January 2014)

Application Nos:             WF2013/0025 & WF2013/0026

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

BC Iron Limited (Applicant and grantee party)

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Elsa Derschow and Others on behalf of Palyku (WC99/16) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Helen Shurven, Member

Place:  Perth
Date:  23 January 2014

Catchwords:        Native title - future acts - applications for determination for the grant of mining leases - named applicant not signed state deeds – ill health - native title party as a whole consents to the determination - consent determination that the acts may be done.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 37, 38, 39, 151, 155

Mining Act 1978 (WA)

Cases:

Frederick Taylor Senior and Others on behalf of the Amangu People/Western Australia/Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd, [2012] NNTTA 86 (‘Taylor v Tronox’)

Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182 (‘Foster v Copper Strike’)

Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50 (‘Monkey Mia Dolphin Resort v Western Australia’)

Hearing date:                  Determined on the papers

Representatives:

Native Title Party           Ms Alisha Maharaj-MacLean, MacLean Legal

Grantee Party                 Mr Rhys Davies, DLA Piper

Government Party          Mr Rod Wahl, State Solicitor’s Office

Ms Jan Mason, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 24 April 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of two future acts, namely the grant of mining leases M46/522 and M46/523 (‘the proposed licences') under the Mining Act 1978 (WA) to BC Iron Limited (‘the grantee party’).

2. The proposed leases are both within the Shire of East Pilbara and comprise:

   ·for M46/522, an area of approximately 16.28 square kilometres; and

   ·for M46/523, an area of approximately 13.7 square kilometres.

3. The proposed licences are 100 per cent within the registered claim of the Palyku People (WC99/16 – registered from 2 August 1999).  The registered native title claimants on behalf of the Palyku People are Frederick Stream, Elsa Derschow, Cheryl Yuline and Florrie Sam (‘the native title party’).

4. On 6 December 2013, being a date more than six months after the s 29 notice was given, the grantee party made applications pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed licences (‘the applications’) and requested that a future act determination be made by consent.

5. A minute of consent determination in the following terms accompanied the applications, and was executed in three counterparts by: Ms Alisha Maharaj-MacLean of MacLean Legal, lawyer for the native title party, on behalf of the native title party; Mr Rhys Davies of DLA Piper, lawyer for the grantee party, on behalf of the grantee party; and Mr Jeff O'Halloran of the State Solicitor’s Office on behalf of the Government party.  The minute is in the following terms:

   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 Party and the Grantee Party have complied with the requirements of section 31(1)(b) of the Native Title Act 1993.

   3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease 46/522 and Mining Lease 46/523, may be done.

6. 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 where those representatives have advised the Tribunal of the consent.  Ms Alisha Maharaj-MacLean is the lawyer for the native title party and represents the native title party in these proceedings. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort v Western Australia).

7. A mining agreement was executed between BC Iron Nullagine Pty Ltd (a wholly-owned subsidiary of the grantee party) and the native title party on 8 April 2010 (‘Mining Agreement’). The Mining Agreement pertains to a project area within country which is subject to the native title party’s native title claim in the Federal Court.  The Mining Agreement also pertains to the grantee party and provides that the native title party will consent to the doing of any relevant future act by the grantee party within the project area by signing a State Deed for the grant of any tenement within the project area.

8. The State Deed is a document required by the Department of Mines and Petroleum (‘DMP’) to be executed before it will grant a mining lease. The Government party will not grant the proposed licences until a State Deed is signed by all relevant signatories, or a determination pursuant to s 35 of the Act is obtained from the Tribunal that the future act (in this matter, the grant of the proposed licences) may be done.

9. The grantee party has applied for a consent determination, as the native title party has stated that the ill health of one of the native title party named applicants has prevented signatures of all persons comprising the native title party being gathered on a State Deed. 

10. The  statutory declaration of Alisha Maharaj-MacLean, declared on 2 December 2013, states that:

    I, Alisha Maharaj-MacLean of Suite 156, Level 2, 580 Hay Street, Perth, WA, 6000, Solicitor, make the following declaration under the Statutory Declarations Act 1959:

    1.I am a Solicitor at MacLean Legal.

    2.I confirm that MacLean Legal represents the Palyku native title claim group (Federal Court Number WAD 6287/98; National Native Title Tribunal Number 99/16) (‘Palyku’) in respect of this matter.

    3.I confirm that Frederick Stream, Elsa Derschow, Cheryl Yuline and Florrie Sam together form the Applicant as defined by the Native Title Act 1993 (Cth), and together act on behalf of Palyku in the execution of documents.

    4.I confirm that Palyku and BC Iron Nullagine Pty Ltd (‘BC Iron’) entered into a Mining Agreement on 8 April 2010 for the purposes of the development of BC Iron’s mining operations within an agreed project area on Palyku country (‘Mining Agreement’).

    5.The Mining Agreement was signed by:

    a.Florrie Sam, Elsa Derschow, Cheryl Yuline and Frederick Stream on behalf of Palyku; and

    b.Michael Young (Director) and Morgan Ball (Company Secretary) on behalf of BC Iron.

    6.I confirm that the Mining Agreement amongst other things, sets out that Florrie Sam, Elsa Derschow, Cheryl Yuline and Frederick Stream will, on behalf of Palyku execute Deeds for the Grant of Mining Tenement (‘State Deeds’) for the grant of any future tenure which falls within the agreed project area (‘Future Tenement’).

    7.I confirm that BC Iron has applied for M46/522 and M46/523, which are Future Tenements within the scope of the Mining Agreement.

    8.I confirm that Palyku have been endeavouring to complete the execution of a State Deed for M46/522 and M46/523.

    9.I confirm that to date Frederick Stream, Elsa Derschow and Cheryl Yuline have executed the State Deed for M46/522 and M46/523.  Florrie Sam has been unable to sign the State Deed due to ill health.

    10.I have been advised by various Palyku community members that after marriage Florrie Sam changed her name to Florrie Kynaston.  I believe this to be true.

    11.I confirm that I received a medical certificate on the 11^th of November 2013 from Dr Bruce Dixon of the WA Country Health Service.  The medical certificate states, and I believe it to be true, that: “Florrie Kynaston is unable to attend any meetings and capable of signing off on documentation due to medical diagnosis and due to her current medical condition”.  I have attached the medical certificate as Annexure “1” to this statutory declaration.

11. I have viewed the attached medical certificate made by Dr Bruce Dixon, and am satisfied that Ms Florrie Kynaston (nee Sam) is unable to execute the State Deed's for M46/522 and M46/523 due to ill health.

The Inquiry

1. In its submissions to the Tribunal accompanying the applications, the grantee party raised an issue regarding the jurisdiction of the Tribunal to make a determination in this matter. The grantee party was concerned that the Mining Agreement may be seen as an agreement of the kind mentioned in s 31(1)(b) of the Act, which would preclude the Tribunal from making a determination, as a result of ss 35(1)(b) and 37(a) of the Act.

2. Where the Tribunal is put on notice of facts that would possibly deprive the Tribunal of the jurisdiction to make a determination, the Tribunal is bound to undertake its own investigations to determine whether or not it does in fact have jurisdiction to make the determination requested by parties.

3. In Taylor vTronox, I addressed a situation where a mining agreement fell within the class of agreements encompassed by s 31(1)(b) of the Act. I found that the Tribunal lacked jurisdiction to make a determination by virtue of the effect of ss 35(1)(b) and 37(a) of the Act.

4. In its applications, the grantee party offered to provide the Tribunal with a copy of the Mining Agreement (redacted to remove clauses of commercial sensitivity not relevant to the inquiry), subject to the Tribunal making confidentiality directions pursuant to s 155 of the Act. Such directions would restrict the disclosure of the Mining Agreement to the parties and the Tribunal for the purposes of this Inquiry. On 17 December 2013, I made the s 155 directions requested by the grantee party, and the grantee party provided the Tribunal with a redacted copy of the Mining Agreement on 18 December 2013. Although I am subject to these directions, I have considered it appropriate to refer to some of the evidence covered by them and so rely on the direction by which I am able to appropriately explain my reasons for this decision.

5. On the basis of the information contained in the applications, statutory declarations, executed minute, and with no objection from the party’s representatives, I considered it appropriate to conduct the inquiry and make a determination ‘on the papers’, without a hearing, in accordance with s 151(2)(b).

Jurisdictional Issue

1. The jurisdictional issue in Taylor vTronox revolved around the wording of the agreement in that matter.  The Taylor vTronox agreement provided that ‘the Native Title Party consents and agrees to (among other things): (a) the Grant of the “Mining Leases” (now already granted) and any “Future Mining Tenure” to the Grantee party and (b) the prompt doing of all acts or things necessary, convenient or desirable to be done to enable the grant’ (see Taylor vTronox at [22]).

2. In the current matter, the Mining Agreement provides that ‘the parties agree to execute any State Deeds for the grant of any Future Tenements, Mining Lease or Ancillary Interests to the Company’.

3. While it may seem a semantic difference, in my view it is a substantial one.  In Taylor vTronox there was no dispute that the native title party had, in the ‘ancillary agreement’, consented to the grant of tenements purportedly covered by the applications before the Tribunal.  

4. In this current matter, there is an agreement to sign a State Deed if and when it is presented at some time after the agreement was made. The proposed licences before the Tribunal in this matter are subject to that clause. The Mining Agreement makes it tolerably clear that it is under any such State Deed that the native title party will give consent to the doing of the future act covered by that deed.

5. Therefore, the Tribunal has jurisdiction to make a future act determination by consent in accordance with the principles enunciated in Foster vCopper Strike at [31]. In that matter Deputy President Sosso found that:

   ...when looked at as a whole, the scheme of section 39 (of the Act) enables the Tribunal to make consent determinations that truly accord with the interests and wishes of the claim group, despite the fact that due to unforeseen circumstances there is not an ability for all of the persons who collectively comprise the applicant to execute a contract.

6. Therefore, I find that the Mining Agreement is not an agreement of the kind referred to in s 31(1)(b) of the Act. As a result, the Tribunal has jurisdiction to make a future act determination in this matter.

Findings

1. I am satisfied that, based on the evidence provided to the Tribunal in this matter by the parties, the native title party as a whole has agreed to the grant of the proposed licences and consents to a determination in the terms sought.

Determination

1. By consent, the determination of the Tribunal is that the acts, namely the grant of Mining Lease 46/522 and Mining Lease 46/523 to BC Iron Limited, may be done.

Helen Shurven
Member
23 January 2014