Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People) (WC98/63)/Western Australia

[2002] NNTTA 84

NATIONAL NATIVE TITLE TRIBUNAL

Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People) (WC98/63)/Western Australia, [2002] NNTTA 84 (7 May 2002)

Application No:        WF02/3

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

Cable Sands (WA) Pty Ltd (Grantee Party)

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Mr Benjamin Nannup and Others (South West Boojarah People) (WC98/63) (Native Title Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Hon CJ Sumner, Deputy President
Place:  Perth

Date:  7 May 2002

Catchwords:    Native title - future act - application for determination for the grant of mining lease - consent determination that the act may be done with a condition.

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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Dates:                 3 May 2002

Solicitor for the

native title party:            Mr Gerhard Beukes, South West Aboriginal Land & Sea Council

Solicitor for the

Government party          Mr Mark DiRenzo, Crown Solicitor’s Office

Solicitor for the

grantee party:                 Ms Christine Lovitt, Blakiston and Crabb, solicitors

REASONS FOR FUTURE ACT DETERMINATION

1. On 9 August, 2000, 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 lease M70/993 under the Mining Act 1978 (WA) to Cable Sands (WA) Pty Ltd (‘the grantee party’).

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

• Benjamin Nannup, Donald Corbett, Franklyn Nannup, Glen Colbung, Glenn Councillor, Ivan Corbett, Jack Hill, Ken Colbung, Kevin Miller, Phillip Prosser, Sam Miller, Barbara Stammner-Corbett, Donna Hill, Teresa Miller, Wendy Williams (the South West Boojarah People (WC98/63)).  (The name of one deceased person still shown on the Register of Native Title Claims has been omitted from the list.)

These persons are the registered native title claimants listed on the Register of Native Title Claims.  On 31 October 2000, the South West Boojarah Claim (WC98/63) was amended to add Vilma Webb and Frances Gillespie.  However, at the date of this determination the amended claim application has not yet been considered for registration by the Registrar of the Tribunal.  Accordingly, while Vilma Webb and Frances Gillespie are applicants on the claim (i.e. claimants) and part of the claim group, they are not registered native title claimants in relation to it.

1. On 19 April 2002 being a date more than six months after the s 29 notice was given the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to M70/993. The application sought a determination by consent of all parties. 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. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

2. On 3 May 2002, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future act may be done in terms of the draft submitted by the grantee party. The native title party was represented by Mr Gerhard Beukes a solicitor with the South West Aboriginal Land and Sea Corporation, a recognised representative Aboriginal/Torres Strait Islander body under the Act; the Government party by Mr Mark DiRenzo of the Crown Solicitor’s Office; and the grantee party by Ms Christine Lovitt of Blakiston and Crabb, solicitors.

3. Paragraph 10 of the s 35 application said:

   ‘A statement that the parties have not been able to reach agreement about the act within 6 months of the notice being given.

   (a)     Following a series of meetings between the registered claimants and Cable Sands (WA) Pty Ltd which took place during April, May and June 2000 and a letter of acceptance dated 2 August 2000 from Cable Sands (WA) Pty Ltd to the Noongar Land Council (in its capacity as representative body for the claimants at that time) agreement was reached that the future act could be done on certain terms and conditions which were to be formally documented in an agreement.  These terms and conditions included provisions for compensation for any loss or diminution of native title rights arising from ground disturbing activities and provision for employment and traineeships.

   (b)    During the ensuing months the documentation was progressed, and the terms and conditions of the agreement which had been reached were re-endorsed at a further meeting of the registered claimants’ working party on 12 July 2001.

   (c)     The documentation was then finalised during the months of August and September 2001 and execution copies of the agreement were provided to the Noongar Land Council to take to a meeting of the registered claimants being held in Busselton on 11 October 2001.  It was anticipated that all of the registered claimants would execute the agreement on that date.

   (d)    Three of the registered claimants, namely Kevin Miller, Frances Gillespie and Vilma Webb indicated that they did not intend to execute the agreement or the associated State Deed and, to date, have maintained that position, notwithstanding that agreement had previously been reached with the working party for the registered claimants.

   (e)     All of the other registered claimants, namely, Benjamin Nannup, Donald Corbett, Franklyn Nannup, Glen Colbung, Glenn Councillor, Ivan Corbett, Jack Hill, Ken Colbung, Phillip Prosser, Sam Miller, Barbara Stammner-Corbett, Donna Hill, Teresa Miller and Wendy Williams have executed the agreement and the associated State Deed.’

At the hearing Mr Terry Tyson, the Land Administration Manager for the grantee party informed the Tribunal that he had conducted the negotiations on behalf of the grantee party and confirmed the facts set out in para 10.  However, he was not present at the meetings of 12 July 2001 or 11 October 2001 which were meetings only of the claimant group.  Mr Gerhard Beukes, the solicitor who appeared for the native title party was present at the meeting of 11 October 2001 at Busselton.  Mr Buekes confirmed the facts in paras 10(c) and 10(d).  He said that approximately twenty members of the claimant group were present at the meeting of 11 October 2001 including five of the registered native title claimants who have signed the Janyardup South Project Deed and State Deed, and Kevin Miller, Frances Gillespie and Vilma Webb who have not signed.  With respect to para 10(e) the Tribunal received in evidence copies of the Deed entitled ‘Jangardup South Project Deed - Future Act Deed’ (between the native title party and grantee party) and the standard State Deed (between all parties). If the State Deed had been fully executed it would have been lodged with the Tribunal as an agreement of the kind mentioned in para 31(1)(b) of the Act and brought these proceedings to a close. The Jangardup South Project Deed – Future Act Deed was signed by all the registered native title claimants except Kevin Miller.  The State Deed was signed by all the registered native title claimants except Kevin Miller and Glen Councillor.  Mr Councillor signed the ancillary Deed and there is no evidence to suggest that the fact he has not signed the State Deed indicates that he is opposed to the grant of the mining lease.

1. The Tribunal also received into evidence an affidavit of Phillip Prosser one of the registered native title claimants.  This affidavit establishes that:

• negotiations between the native title party and the grantee party resulted in agreement between them about the grant of the mining lease;

• a meeting of all members of the South West Boojarah Working Group was held at Busselton on 17 December 2001 and chaired by Phillip Prosser;

• discussion about the agreement took place and, despite the continuing refusal of Kevin Miller, Frances Gillespie and Vilma Webb who were present at the meeting to sign the agreement, the meeting confirmed that the mining lease should be granted;

• the meeting decided that these three claimants did not have authority from the native title party to refuse to sign the Deed; and

• Mr Prosser supported a consent determination in the draft form submitted by the grantee party.

1. I am satisfied by the evidence produced that the native title party as a group consent to the determination in the terms requested by the grantee party. The native title party has been represented in this matter throughout by the designated representative Aboriginal/Torres Strait Islander body under the Act (initially the Noongar Land Council, now the South West Aboriginal Land & Sea Council) and solicitors engaged by them. Mr Beukes confirmed at the hearing that the claim group as a whole consented to the determination.

1. Despite the refusal of one registered native title claimant and two other claimants to sign the relevant Deeds I am satisfied that the determination can be made.  This matter is not dissimilar to Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001, where the Tribunal made a determination that the act may be done even though two of the 38 registered native title claimants refused to sign but the evidence established that the claim group as a whole consented. I also note that the grantee party has already carried out heritage clearance surveys of the affected area with the registered native title claimants and no sites of significance were identified. There can be no question of the act affecting any sites of particular significance to the native title party in accordance with their traditions which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. The determination of the Tribunal is that the act, namely the grant of mining lease M70/993 under the Mining Act 1978 (WA) over the land the subject of this application, may be done subject to a condition that the grantee party (Cable Sands (WA) Pty Ltd) execute and be bound by the agreement entitled Jangardup South Project Deed – a Future Act Deed between the South West Boojarah People and Cable Sands (WA) Pty Ltd prepared by Blakiston & Crabb, Solicitors, a copy of which was tendered to the Tribunal in this inquiry and marked Exhibit A1.

Hon CJ Sumner
Deputy President

7 May 2002