Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Fairstar Resources Ltd
[2011] NNTTA 196
•9 November 2011
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Fairstar Resources Ltd, [2011] NNTTA 196 (9 November 2011)
Application No: WF11/11
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Cyril Barnes and Others on behalf of Central East Goldfields People (WC99/30) (Applicant/native title party)
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The State of Western Australia (Government party)
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Fairstar Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 9 November 2011
Catchwords: Native title – future act – application for determination for the grant of mining lease – certain named applicant not signed ancillary agreement or State Deed – native title party as a whole consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38, 109, 203
Mining Act 1978 (WA)
Cases:Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL [2006] NNTTA 55
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50
Solicitor for the
native title party: Ms Wendy Gilbert, Goldfields Land and Sea Council
Solicitor for the
Government party: Mr Rod Wahl, State Solicitor’s Office
Representative of the
Government party: Mr David Crabtree, Department of Mines and Petroleum
Representative of the
grantee party: Mr Craig Robertson, Fairstar Resources Ltd
REASONS FOR FUTURE ACT DETERMINATION
On 17 November 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of mining lease M28/373 (‘the proposed lease’) under the Mining Act1978 (WA) to Fairstar Resources Ltd (‘the grantee party’).
The proposed lease comprises an area of 5596.34 hectares located 81 kilometres north east of Kambalda, within the City of Kalgoorlie-Boulder. The proposed lease is entirely within the registered claim of the Central East Goldfields People (WC99/30 – registered from 4 October 1999) therefore the native title party with respect to these proceedings is Cyril Barnes and Others on behalf of Central East Goldfields People.
On 18 October 2011, being a date more than six months after the s 29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) 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 lease. The native title party requested that the future act determination be made by consent.
Appended to the application was a minute of a consent determination in the following terms executed by Ms Wendy Gilbert as representative of the native title party, Mr Craig Robertson as representative of the grantee party and subsequently executed by Mr Rod Wahl of the State Solicitor’s 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 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 consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease 28/373 may be done.’
The basis on which GLSC believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavits of Dante Mavec sworn on 14 October 2011 and Wendy Kathryn Fiona Gilbert sworn on 14 October 2011. These affidavits were appended to the s 35 determination application and the pertinent paragraphs of each are set out below:
DANTE MAVEC
‘...
3. On 21 July 2011, I attended a meeting of the Central East Goldfields People Working Group (“Working Group”) at the WMC Conference Centre in Kalgoorlie. The members of the Working Group were selected by the Claim Group and given delegated authority to deal with future act matters affecting the Central East Goldfields People native title claim, including such matters as mining tenement applications.
4. At the 21 July meeting, I was present during a discussion regarding mining tenement application M28/373 between GLSC lawyer Wendy Gilbert and the Working Group. Wendy informed the Working Group that the negotiations between the Claim Group and Fairstar Resources Ltd were completed and the drafted Ancillary Agreement (“Agreement”) was tabled for discussion. The background to the negotiations over the tenement application and the terms of the agreement that had been negotiated with Fairstar Resources Ltd were discussed.
5. As recorded by the minutes of the 21 July 2011 Working Group meeting, the Working Group then passed, in my presence, the following resolutions:
“Resolution:
Part 1
The Central East Goldfields working group resolves that, for the purpose of securing the consent for the grant of Mining Lease M28/373 in favour of Fairstar Resources Ltd (‘the Grantee Party’), the Grantee Party must enter into an Ancillary Agreement with the Central East Goldfields claim group.
The Central East Goldfields working group resolves to endorse and accept the Ancillary Agreement (‘the Agreement’) tabled at today’s working group meeting and instructs the Central East named applicants to execute the Agreement.
Part 2:
Subject to the provisions of the executed Agreement, the Central East Goldfields working group resolves and instructs all Central East named applicants to execute the state deed and all other documents necessary to facilitate the grant of Mining Lease M28/373 in favour of the Grantee Party and, in the event that one or more Central East named applicants fail or refuse to execute the state deed or other documents, the Central East Goldfields working group supports any Section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that Mining Leases [sic] M28/373 be granted.”
...
7. All except one of the persons that comprise the Applicant signed the State Deed and the Ancillary Agreement. Victor Willis refused to sign the State Deed and the Agreement.
...
9. Mr Willis did not state any specific problem with the Agreement in question but spoke of more general issues regarding his unwillingness to sign documents. I discussed these issues with Mr Willis for approximately an hour. At the end of that discussion, Mr Willis clearly expressed to me that he did not want to sign any documents in relation to the Central East Goldfields claim.
10. However, I believe that the Claim Group consents to the application for consent determination, as evidenced by the resolutions of the Working Group passed on 21 July 2011 and set out in paragraph 5 above.’
WENDY KATHRYN GILBERT
‘...
7.The Working Group resolved to approve the draft Agreement in its current form and to request the persons whom jointly comprise the applicant execute the Agreement and accompanying State Deed. A copy of the resolution is attached as Exhibit A.
8.The Working Group further instructed the GLSC to carry out all necessary technical procedures to allow the mining leases to be granted in return for execution of the Agreement.
9.Members of the Working Group were also made aware that if one of the persons that jointly comprise the applicant for the Claim Group were to refuse to execute the State Deed, there is an alternative process available whereby an application seeking a Consent Determination in relation to the tenements that are subject to the State Deeds can be made to the National Native Title Tribunal. The Working Group further instructed the GLSC to pursue this process if it became necessary and appropriate to do so.
...
14.All of the persons that comprise the applicant for the Claim Group signed the State Deed and the Agreement except Mr Victor Willis.
15.I am informed and believe that Victor Willis refused to sign future act documentation generally and not those specifically related to this Agreement or the State Deed.
16.I am continuing with efforts to resolve the issue referred to in the paragraph immediately above.
17.In the meantime however I have received a Consent Determination Application (form 5) that has been prepared by the Department of Mining and Petroleum and forwarded to me for mining lease applications [sic] M28/373 in the name of Fairstar Resources Ltd.
18.As a consequence of the instructions given and of both myself and Dante Mavec obtaining the consent of the majority of the persons comprising the applicant for the Claim, I have reached the view that I have the authority to seek that a determination be made in the terms set out in the application.’
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. GLSC 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) 164 FLR 361; [2001] NNTTA 50 (‘Monkey Mia’)).
The Inquiry and findings
On the basis of the information contained in the application, attached affidavits, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
I accept, based on the evidence provided in the affidavits of Mr Mavec and Ms Gilbert, that the Central East Goldfields Working Group has the authority of the persons comprising the applicant for the Central east Goldfields Claim to consent to the doing of the act. As the representative body under the Act, GLSC have a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing the applicant in relation to their claim and future act matters (s 203BB(1)(b)) and ensuring that the persons they represent understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). As such, the Tribunal is entitled to accept as evidence the advice of GLSC’s representatives that the appropriate consent has been given by the native title party.
The Tribunal has previously considered the issue of whether it is appropriate to make a determination by consent in the event that a named applicant refuses to sign an Ancillary Agreement or State Deed (see for example Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL [2006] NNTTA 55). The facts in that matter are similar to those deposed to in this case. The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [19]-[21]). The evidence establishes that Victor Willis’ refusal to sign the relevant documentation was not related to the content of the proposed agreement but to a more general disillusionment with his role as a member of the applicant (see affidavit of Mr Mavec, para 9 and affidavit of Ms Gilbert paras 15-16). I am satisfied that, despite the refusal of one of the named applicants to sign the State Deed, the native title party collectively consents to the determination sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Lease M28/373 to Fairstar Resources Ltd, may be done.
Daniel O’Dea
Member
9 November 2011
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