David Stock and Others on behalf of the Nyiyaparli People/Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd/Western Australia

[2010] NNTTA 74

NATIONAL NATIVE TITLE TRIBUNAL

David Stock and Others on behalf of the Nyiyaparli People/Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd/Western Australia, [2010] NNTTA 74 (1 June 2010)

Application No:        WF10/7

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

David Stock and Others on behalf of the Nyiyaparli People (WC05/6) (Applicant/native title party)

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The State of Western Australia (Government party)

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Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Neville MacPherson, Member

Place:  Perth
Date:  1 June 2010

Catchwords:  Native title – future act – application for determination for the grant of mining leases – replacement of named applicant – Binding Initial Agreement – logistical difficulties preclude the execution of the 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(2)

Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF08/39, [2008] NNTTA 163 (19 December 2008), Member O’Dea

Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli People (WC99/4)/Beyondie Gold NL/Western Australia, NNTT WF02/9, [2002] NNTTA 122 (28 June 2002), Hon C J Sumner

David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WF08/26, [2008] NNTTA 124 (2 September 2008), Member O’Dea

David Stock and Others on behalf of the Nyiyaparli People/Western Australia/FMG Pilbara Pty Ltd, NNTT WF09/25, [2009] NNTTA 151 (19 November 2009), Member O’Dea

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

Hearing date:  20 May 2010

Counsel for the  Ms Kate Holloman

native title party:                 Yamatji Marlpa Aboriginal Corporation

Counsel for the  Mr Richard Steenhof, Blake Dawson

grantee party:  Hamersley Resources Ltd, Hancock Prospecting Pty Ltd, Wright Prospecting Pty Ltd

Representative for the        Mr Rod Wahl, State Solicitor’s Office
Government party:             Ms Janice Goodwin, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 14 January 2009, 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 M46/437, M46/438, M46/439 and M46/440 (‘the proposed leases’) under the Mining Act 1978 (WA) to Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd.

2. The proposed leases are located in the Shire of East Pilbara and the area and location of each proposed lease are as follows:

   ·      M46/437 – 784.94 hectares, 30 kilometres east of Newman

   ·      M46/438 – 784.99 hectares, 32 kilometres east of Newman

   ·      M46/439 – 783.82 hectares, 34 kilometres east of Newman

   ·      M46/440 – 784.92 hectares, 36 kilometres east of Newman

3. On 23 April 2010, being a date more than six months after the s 29 notice was given, an application was made pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed leases (‘the form 5 application’). The applicant to these proceedings is the Nyiyaparli People (WC05/6 – registered from 29 November 2005) and the registered native title claim entirely overlaps the proposed leases. On the date the form 5 application was made the named applicants comprising the registered native title claim application on the Register of Native Title Claims (‘RNTC’) were David Stock, Gordon Yuline, Raymond Drage, Brian Samson, Victor Parker and Richard Yuline (‘native title party’). The native title party requested that the future act determination be made by consent.

4. On 11 May 2010, the Federal Court of Australia made an Order for the replacement of one of the named applicants on the registered native title claim application. On 18 May 2010, the Tribunal was duly informed of the details of this Order by the Federal Court and the RNTC was updated. The current claimant application of the native title party is accordingly  amended by recording ‘David Stock, Gordon Yuline, Raymond Drage, Victor Parker, Richard Yuline and Billy Cadigan’ as the named applicants. The Federal Court Order removes the named applicant ‘Mr Brian Samson’ and replaces him with the named applicant ‘Mr Billy Cadigan’.

5. In support of the form 5 application at paragraph 10, the native title party identified logistical difficulties as precluding the execution of a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). Furthermore, it is said that the native title party and the grantee party have entered into an agreement entitled the ‘Binding Initial Agreement’ (‘BIA’) about the future acts on 28 July 2006 and that the grantee party agrees to abide by the provisions of that agreement. Section 10 of the form 5 application includes the following statements:

   ‘2.    One of the members of the Applicant is unavailable to execute the State Deed.

   3.The native title party consents to the proposed act being done, that is the grant of Mining Leases 46/437 to M46/440 the subject of this consent determination. The grantee party and the native title party confirm that an Agreement (BIA) has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Mining Leases 46/437 to M46/440 can therefore be granted in pursuance to the consent determination.’

6. Appended to the s 35 determination application is a minute of consent determination executed in counterparts by Mr Geoff Gishubl, a partner in Blake Dawson, on behalf of the grantee party, Mr Michael Meegan, Principal Legal Officer employed by the Yamatji Marlpa Aboriginal Corporation (‘YMAC’), on behalf of the native title party, and Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party. It states as follows:

‘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 have 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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Leases M46/437, M46/438, M46/439 and M46/440 may be done.’

1. 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 YMAC is the recognised representative body under the Act for the native title party and represents them in these proceedings, via their service arm, the Pilbara Native Title Services (‘PNTS’). The Tribunal will hear the parties (refer to following paragraph) 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

1. On 20 May 2010, the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Ms Kate Holloman, from the PNTS, acknowledged the Order of the Federal Court to replace the name of the named applicant, Mr Brian Samson, with the name of the new named applicant, Mr Billy Cadigan. Ms Holloman stated that the consent of the native title party to the determination in the terms sought had not altered and she was satisfied that she had the authority to confirm that the native title party consents to the grant of the proposed leases. In support of her statement, Ms Holloman referred to section 10 of the aforesaid form 5 application and the BIA entered into between the native title party and the grantee party, and affirmed the logistical difficulties which precluded the execution of an agreement of the kind contemplated by s 31(1)(b) of the Act. Ms Holloman indicated that circumstances remained whereby logistical difficulties would continue to preclude an expeditious result on the basis that the State Deed, partially executed by the named applicants, except for one signature, would require amendment and the signatures of all the named native title party applicants.

2. Both Mr Richard Steenhof, for the grantee party, and Mr Rod Wahl, for the Government party, confirmed consent in the terms sought.

3. All parties agreed that the determination could be made on the papers. I am satisfied that I can adequately so determine the matter (s 151(2)).

4. Appended to the application is an affidavit of Katherine Anne Holloman (referred to above and following as “Ms Kate Holloman” and as “Ms Holloman”) in support of the native title party’s application for a future act determination. The affidavit was affirmed on 23 April 2010. Ms Holloman attests and includes the following statements:

   ‘4.I am authorised to affirm this affidavit in support of the future act determination application by the Native Title Party for the grant of the Mining Lease Applications.

   ...

   8.The Nyiyaparli Claim Group has authorised 14 members of the Nyiyaparli Claim Group to deal with day to day matters arising from the Nyiyaparli Claim including dealing with matters relating to Aboriginal heritage and exercising procedural rights pursuant to Part 2 Division 3 of the Native Title Act 1993 (Cth). Those persons are known as the Nyiyaparli working group.

   9.All decisions made by the Nyiyaparli working group must be authorised at a duly convened community meeting of the Nyiyaparli Claim Group.

   10.I have seen the Binding Initial Agreement (‘BIA’) between the Applicants to the Nyiyaparli Claim on behalf of the Nyiyaparli Claim Group, Hamersley Iron Pty Ltd and Robe River Mining Company Pty Ltd (together ‘Rio Tinto Iron Ore’) entered into on 28 July 2006. The BIA was executed by all of the persons comprising the Applicant to the Nyiyaparli Claim following recommendation by the then Nyiyaparli working group and authorisation at a community meeting of the Nyiyaparli Claim Group.

   ...

   13.Due to a range of logistical challenges, namely, the inability to physically locate one of the persons who comprise the Applicant to the Nyiyaparli Claim, Mr Brian Samson, the Native Title Party is unable to produce a fully executed State Deed to the Grantee and Government parties for the Mining Lease Applications.

   14.I have tried to contact Mr Brian Sampson on numerous occasions in order to procure his signature to the State Deed for the Mining Lease Applications but have been unable to locate him. These attempts include phone calls to his mobile phone and various offices of Jigalong Community Incorporated (the trustee of the Jigalong Aboriginal Reserve) and a formal letter requesting his signature sent via email care of Jigalong Community Incorporated, Jigalong (Mr Samson’s usual place of residence). As at the date of this my affidavit, no verbal or written response has been received from Mr Samson.

   15.I am satisfied that the authorisation given by the Nyiyaparli Claim Group to the persons who comprise the Nyiyaparli Applicant to do all things reasonably required by Rio Tinto Iron Ore to effect the grant of the Pilbara Iron Titles as that term is defined in the BIA, including the execution of all necessary documents for the purposes of the grant of any Pilbara Iron Titles, continues.

   16.In the current circumstance, the execution of the State Deed by all of the persons who comprise the Nyiyaparli Applicant is impossible due to the logistical challenges referred to above in paragraphs 14 & 15 above. In accordance with the BIA, the Native Title Party consents to the grant of the Mining Lease Applications by way of consent determination.’

5. On 18 May 2010, Ms Holloman lodged with the Tribunal a further affidavit to amend a technical error in her affidavit affirmed on 23 April 2010, and includes the following statements:

   ‘4.I am authorized to affirm this affidavit in support of the future act determination application by the Native Title Party for the grant of the mining leases M46/437, M46/438, M46/439 and M46/440 (Mining Leases).

   ...

   7.I make this affidavit in support of the future act determination application by the Native Title Party for the grant of the Mining Leases lodged with the Tribunal 23 April 2010. It is proposed that the determination is made with the consent of the Nyiyaparli native title claimants.’

Findings

1. The Tribunal is entitled to accept the evidence of the YMAC’s legal representative on whether appropriate consent has been given by the native title party. There is nothing in the papers before me to suggest the contrary. I therefore adopt the findings in David Stock and Others on behalf of the Nyiyaparli People/Western Australia/FMG Pilbara Pty Ltd, NNTT WF09/25, [2009] NNTTA 151 (19 November 2009), Member O’Dea at para [15] in relation to the responsibilities of the recognised representative body for the region and the Tribunal’s own responsibilities under s 109 of the Act.

2. The Tribunal has previously accepted the statement from YMAC, where logistical difficulties in obtaining signatures of the native title party to a State Deed have existed, as a legitimate basis for seeking a consent determination (see Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli People (WC99/4)/Beyondie Gold NL/Western Australia, NNTT WF02/9, [2002] NNTTA 122 (28 June 2002), Hon C J Sumner at [7]-[9]; David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WF08/26, [2008] NNTTA 124 (2 September 2008), Member O’Dea at [10]; Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF08/39, [2008] NNTTA 163 (19 December 2008), Member O’Dea at [11]; David Stock and Others on behalf of the Nyiyaparli People/Western Australia/FMG Pilbara Pty Ltd, NNTT WF09/25, [2009] NNTTA 151 (19 November 2009), Member O’Dea at [8] and [11]).

3. On the basis of the information contained in the application, the affidavit evidence of Ms Holloman; the signed minute of consent executed by all parties; the evidence given by Ms Holloman at the hearing; and the reasons for seeking a consent determination, I am satisfied that the native title party as a whole has consented to the doing of the acts in accordance with the BIA entered into with the grantee party. I am also satisfied that the amendment to the RNTC made on 18 May 2010, does not alter the terms in which the consent determination is sought.

Determination

1. By consent, the determination of the Tribunal is that the acts, namely, the grant of mining leases M46/437, M46/438, M46/439 and M46/440, to Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd, may be done.

Neville MacPherson
Member
1 June 2010