Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Integra Mining Ltd
[2009] NNTTA 100
•28 August 2009
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Integra Mining Ltd, [2009] NNTTA 100 (28 August 2009)
Application No: WF09/18
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
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)
- and -
The State of Western Australia (Government party)
- and -
Integra Mining Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 28 August 2009
Catchwords: Native title – future act – application for determination for the grant of mining leases – certain named applicants 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, ,151, 203
Cases:Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL, NNTT WF06/16, [2006] NNTTA 55 (17 May 2006) Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Solicitor for the
native title party: Ms Wendy Gilbert, Goldfields Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Mines and Petroleum
Representative of the
grantee party: Mr Greg Wilson, Integra Mining Ltd
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of future acts, namely the grant of mining leases M25/236, M25/307, M25/347, M28/164 and M28/208 (‘the proposed licences’) under the Mining Act1978 (WA).
M25/347 – 7 May 2008
M25/236 & M28/164 – 5 December 2007
M25/307 – 28 January 2004
M28/208 – 10 March 1999
Mining leases M25/347, M25/236 and M28/164 were applied for by Integra Mining Ltd (‘the grantee party’). However, the applicant for mining lease M25/307 was notified as Solomon (Australia) Pty Ltd and mining lease M28/208 notified as Border Gold NL. On 5 December 2005, Solomon (Australia) Pty Ltd transferred its interest in M25/307 to the grantee party. The grantee party’s interest in M28/208 was acquired through transfers variously to Equs Ltd, WMC Resources Ltd, St Ives Gold Mining Co. Pty Ltd and Moto Goldmines Ltd, registered between 17 September 1998 and 21 December 2005. Ultimately a 20% interest in the tenement, held by Moto Goldmines Ltd, and an 80% interest in the same tenement held by St Ives Gold Mining Co. Pty Ltd were each registered as transferred to the grantee party on 21 December 2005.
The proposed licences are located in the City of Kalgoorlie-Boulder and the area and locations of each are as follows:
M25/347 – 985.67 hectares, 36 kilometres east of Kambalda
M25/236 – 994.51 hectares, 50 kilometres east of Kambalda
M28/164 – 149.89 hectares, 119 kilometres east of Kambalda
M25/307 – 42.23 hectares, 35 kilometres east of Kambalda
M28/208 – 980.56 hectares, 86 kilometres east of Kambalda
The proposed licences are entirely overlapped by the registered native title claim of the Central East Goldfields People (WC99/30, registered from 4 October 1999). In the case of M28/208, the Central East Goldfields People have attained their procedural rights under Part 2, Division 3 subdivision P of the Act through pre-combination claims Karonie 4 (WC96/19), Tjeraridjal (WC96/81), Judabi (WC97/53), Warta Dika (WC98/3) and Wongutha Yoongarra (WC98/15). Each of these pre-combination claims were on the register of native title claims on the date of the s 29 notice and closing date for M28/208, and each entirely overlapped the subject tenement. The native title party with respect to these proceedings is therefore Cyril Barnes and Others on behalf of Central East Goldfields People.
On 7 August 2009, 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 licences. The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms executed by Ms Wendy Gilbert as representative of the native title party, and subsequently by Mr Greg Wilson as representative of the grantee party and Mr Domhnall McCloskey 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 Leases 25/236, 25/307, 25/347, 28/164 & 28/208 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 Andre Stirling Maynard sworn on 23 July 2009 and Wendy Kathryn Gilbert sworn on 6 August 2009. These affidavits were appended to the s 35 determination application and the pertinent paragraphs of each are set out below:
ANDRE STIRLING MAYNARD
‘...
3. On 27 May 2009, I attended a meeting of the Central East Goldfields People Working Group (“Working Group”) at the office of the GLSC in Kalgoorlie. The members of the Working Group were elected 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 27 May meeting, I was present during a discussion regarding mining tenement applications M25/236, M25/307, M25/347, M28/164 and M28/208 between GLSC lawyer Wendy Gilbert and the Working Group. The GLSC informed the Working Group that the negotiations between the Claim Group and Integra Mining Ltd were completed and the drafted Ancillary Agreement (“Agreement”) was tabled for discussion. The background to the negotiations over the tenement applications and the terms of the agreement that had been negotiated with Integra Mining Ltd were discussed.
5. I was present during future discussion between GLSC lawyer Wendy Gilbert and the Working Group members regarding how an Agreement can be finalised if an Applicant refused to sign an Agreement or State Deed as requested. Wendy explained the process including the possibility to bring an application seeking Consent Determination in relation to finalised tenement applications if needed and advised the Working Group of the requirements accordingly.
6. As recorded by the minutes of the 27 May 2009 Working Group meeting, the Working Group then passed, in my presence, the following resolutions:
“Resolution 1:
The Central East Working Group resolves that, for the purpose of securing the consent of the Central East Claim Group to the grant of Mining Leases M28/208, M25/307, M25/347, M28/164 and M25/236 in favour of Integra Mining Ltd (“the Grantee Party”), the Grantee Party must enter into an Ancillary Agreement with the Central East Claim Group and GLSC.
The Central East 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.
Resolution 2:
Subject to the provisions of the executed Agreement, the Central East 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 Leases M28/208, M25/307, M25/347, M28/164 and M25/236 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 deeds or other documents, the Central East Working Group supports any Section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that Mining Leases M28/208, M25/307, M25/347, M28/164 and M25/236 be granted.”
...
8. All except one of the persons named as Applicant signed the State Deed and the Agreement. Mercy O’Loughlin refused to sign the State Deed and the Agreement.
...
10. I inquired of her, “Mercy O’Loughlin will you sign this State Deed and this Agreement now or sometime in the future?” She replied “I will not sign this State Deed or this Agreement now or ever.” Mercy did not state any specific problem with the Agreement in question but spoke of more general issues regarding her unwillingness to sign documents.
...
12. I verily believe that the Claim Group consents to the application for consent determination, as evidenced by the resolutions of the Working Group passed on 27 May 2009 and set out in paragraph 5 above.’
WENDY KATHRYN GILBERT
‘...
10. The Working Group resolved to approve the draft Agreement in its current form and to request the Applicants execute the Agreement and accompanying State Deeds. A copy of the resolution is attached as Exhibit A.
11. The Working Group further instructed the GLSC to carry out all necessary technical procedures to allow the mining leases to be granted and in return for execution of the Agreement.
12. Members of the Working Group were also made aware that in the event, that a named Applicant were to refuse to execute the State Deeds, 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 is lodged with 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.
...
16. All of the persons named as Applicant signed the State Deed and the Agreement except Ms Mercy O’Loughlin.
17. I am informed and verily believe that Mercy O’Loughlin has previously refused to sign future act documentation and not specifically related to this Agreement or the State Deed.
18. I am continuing with efforts to resolve the issue referred to in the paragraph immediately above.
19. 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 application M25/236, 25/307, 25/347, 28/164 and 28/208 in the name of Integra Mining.
20. As a consequence of the instructions given and Andre Maynard obtaining the consent of the majority of the Applicants for the Claim, I have reached the view that I have the authority to seek that determinations be made in each matter in terms as requested in each application.’
Because an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. the State Deed) has not been executed by all the persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination. 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] NNTTA 50; (2001) 164 FLR 361 (‘Monkey Mia’).
The Inquiry and findings
All parties have agreed that a determination could be made on the papers and I am satisfied that I can adequately determine the matter in this manner (s 151(2)).
I accept, based on the information provided in the affidavits of Mr Maynard and Ms Gilbert that the Central East Goldfields working group has the authority of the claimant group 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 claimants 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, NNTT WF06/16, [2006] NNTTA 55 (17 May 2006) Hon C J Sumner). 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]). 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 Leases M25/236, M25/307, M25/347, M28/164 and M28/208 to Integra Mining Ltd, may be done.
John Catlin
Member
28 August 2009
0
2
0