Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia

[2006] NNTTA 29

Reported at (2006) 199 FLR 38

NATIONAL NATIVE TITLE TRIBUNAL

Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, [2006] NNTTA 29 (31 March 2006)

Application No:        WF06/4

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

Enmic Pty Ltd (Applicant/grantee party)

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Martha Borinelli and Others on behalf of the Yued People (WC97/71) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  31 March 2006

Catchwords:  Native title – future act – application for determination for the grant of mining lease – certain named applicants not signed agreements – native title party as a whole consents to the determination – consideration of power to impose conditions – conditions imposing royalty type payments prohibited (s 38(2) Native Title Act) – condition that the determination ‘is subject’ to an agreement and condition that the parties ‘are bound’ by an agreement make terms of the agreement conditions of the determination – agreement recorded in Tribunal’s reasons – consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38

Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner

BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner

Evans v Western Australia (1997) 77 FCR 193

Empire Oil Company (WA) Limited/State of Western Australia/Martha Borinelli, Michael, Egan, Arnold Franks and Others on behalf of the Yued families, NNTT WF03/13, [2003] NNTTA 118 (24 November 2003), Hon E M Franklyn QC

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

Kimberley Oil NL/Martha Borinelli and Others on behalf of the Yued People/State of Western Australia, NNTT WF05/11, [2005] NNTTA 79 (24 October 2005), Hon C J Sumner

Martha Borinelli, Michael Egan, Arnold Franks and others on behalf of the Yued Families/Amity Oil Ltd/Western Australia, NNTT WF04/2, [2004] NNTTA 11 (3 March 2004), Dan O’Dea

Re Koara People (1996) 132 FLR 73

Hearing dates:  14 February 2006, 28 February 2006, 17 March 2006

Counsel for the  Mr Ettienne van Tonder, South West Aboriginal Land and

native title parties:               Sea Council

Representative of the

grantee party:  Ms Irene Menchetti, Enmic Pty Ltd

Representative of the          Mr Trevor Creewel and Ms Alana McCarthy, State Solicitor’s Office

Government party:              Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 13 December 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 M70/994 (‘proposed lease’) under the Mining Act 1978 (WA) to Enmic Pty Ltd (‘the grantee party’) . The proposed lease comprises an area of some 102.97 hectares and is located 63 kilometres south-easterly of Cervantes in the Shire of Gingin.

2. The native title party with respect to these proceedings, and the extent to which its registered claim overlaps the proposed lease, is as follows:

   ·     Martha Borinelli, Arnold Franks, Charmaine Walley, Dianne Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder and a deceased person whose name is withheld for cultural reasons on behalf of the Yued People (WC97719) (‘the Yued native title party’) - 100% overlap.

3. On 23 January 2006, being a date more than six months after the s 29 notice was given Enmic Pty Ltd (‘Enmic’) made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act.

4. Enmic requested that the future act determination be made by consent. A  proposed minute of a consent determination in the following terms, executed by Ms Christine Cooper of the South West Aboriginal Land and Sea Council (‘SWALSC’), solicitor for the Yued native title party, was lodged on 7 February 2006:  

‘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 70/994 may be done subject to (1) the undertakings of the Grantee Party and Native Title Party to be bound by the terms of the Ancillary Agreement between the Native Title Party and Enmic Pty Ltd dated 15 November 2005 (despite it not having been executed by all registered claimants) and (2) the Heritage Protection Agreement between the Native Title Party, the South West Aboriginal Land and Sea Council and the Grantee Party dated 15 November 2005.

4. 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 their consent. SWALSC is the recognised representative body under the Act for the native title party and through Ms Cooper and Mr Ettienne van Tonder, barrister & solicitor, has represented them in these proceedings. 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). Hearings were conducted on 14 February 2006, 1 March 2006 and 17 March 2006.

5. The Tribunal has before it the following three agreements:

   (i)‘Agreement pursuant to Section 31(1)(b) of the Native Title Act 1993 (Commonwealth)’ between Enmic Pty Ltd and the Yued People dated 15 November 2005 (‘Ancillary Agreement’).

This agreement has been executed by Enmic and by seven of the nine persons named as the applicant and registered native title claimant and native title party namely Mal Ryder, Charmaine Walley, Diane Mippy, Edna Ryder, Jenny Mogridge, Martha Borinelli and a deceased person whose name I have withheld for cultural reasons.  Mr van Tonder, counsel for the native title party advised that Mr Joseph Ryder is currently located near Geraldton and he has not yet been able to obtain Mr Ryder’s signature because of the travel involved but did not anticipate a refusal to sign.  He also advised that Mr Arnold Franks, consistently with his approach to previous matters of this kind, had refused to sign the agreement.

(ii)‘Heritage Protection Agreement’ between Enmic Pty Ltd, The Yued People and SWALSC dated 15 November 2005 (‘HPA’).

This agreement has been executed by Enmic and by Charmaine Walley and the deceased person.  I accept as evidence Mr van Tonder’s advice that these persons had authority from the native title party to sign an HPA of this nature.  Other documents lodged verified that such authorisation is consistent with the usual practice of the Yued claim group.

(iii)‘Deed for Grant of Mining Tenement’ between the State of Western Australia, Minister for State Development, Yued People and Enmic (‘State Deed’) signed by all the named applicants except Mr Joseph Ryder and Mr Arnold Franks.

Because the State Deed has not been executed by all the persons named as the applicant, the Government party is not prepared to execute and lodge it with the Tribunal (s 41A(1)(a)). As there is no properly executed document which constitutes an agreement of the kind mentioned in paragraph 31(1)(b) of the Act the Tribunal must consider whether the matter can be resolved by way of consent determination.

The native title party’s consent to a determination

1. The issues raised by the refusal of Mr Franks to execute documents giving effect to agreements reached with the Yued native title party as a whole have been considered by the Tribunal previously (Empire Oil Company (WA) Limited/State of Western Australia / Martha Borinelli, Michael, Egan, Arnold Franks and Others on behalf of the Yued families, NNTT WF03/13, [2003] NNTTA 118 (24 November 2003) Hon E M Franklyn QC and Martha Borinelli, Michael Egan, Arnold Franks and others on behalf of the Yued Families/Amity Oil Ltd/Western Australia, NNTT WF04/2, [2004] NNTTA 11 (3 March 2004), Dan O’Dea). In these cases the Tribunal was satisfied, on the basis of documentary and oral evidence presented by SWALSC, that the claimants consented to the act being done despite Mr Franks’ refusal to execute all the necessary documents. Further, in Kimberley Oil NL/Martha Borinelli and Others on behalf of the Yued People/State of Western Australia, NNTT WF05/11, [2005] NNTTA 79 (24 October 2005), Hon C J Sumner, the Tribunal also decided that a consent determination was appropriate where there were logistical difficulties in obtaining all signatures to the relevant agreements. With respect to Mr Franks, I adopt the findings in WF04/2 at [11] for the purpose of this inquiry. The failure of Mr Arnold Franks to execute the agreement is not fatal to the application for a consent determination.  The ‘native title party’ is not each individual person named as part of the applicant and registered native title claimant but the applicant and registered native title claimant acting collectively as representatives and agents for the claimant group and individual persons named as part of the applicant are not entitled to separate representation (Monkey Mia at [19]-[21]). If the Tribunal is satisfied that the applicants and registered native title claimants (or more accurately the persons named as part of the applicant and registered native title claimant) collectively consent, then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made.

2. In the present case I am also satisfied by the evidence (considered further below in paras [18] – [20]) that the native title party as a group consent to the determination. The native title party has been represented in this matter throughout by the recognised representative Aboriginal/Torres Strait Islander body for the area (SWALSC) and solicitors engaged by them. As the recognised representative body under the Act, SWALSC has 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 related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties 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)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representatives on whether the appropriate consent has been given by the native title party. In this matter the native title party’s legal representative Mr van Tonder was present during the hearings, has provided an explanation of the steps taken to obtain his client’s consent and confirmed his client’s consent. With respect to Mr Joseph Ryder I accept Mr Van Tonder’s explanation of the difficulty in obtaining his signature. There is no evidence to suggest that he would not sign or opposes a consent determination.

The terms of the consent determination

1. The major issue which emerged in this matter was whether the Tribunal could make a determination in the terms of the draft minute referred to above.

2. While the Tribunal has a broad power to impose conditions there are some limitations, the most specific of which is that the Tribunal cannot impose a condition for payments to be made to a native title party based on the amount of profits made, income derived or things produced by the grantee party as a result of the doing of the future act (s 38(2); see discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214). The Tribunal is aware that ‘Ancillary Agreements’ between native title parties and grantee parties (i.e. not involving the Government party) in Western Australia sometimes contain terms which could not be made conditions of a determination. If the Tribunal’s determination were to have the effect of making the terms of the agreement conditions of the determination, then it would not be appropriate to make the proposed determination without seeing the Ancillary Agreement or HPA. If the Tribunal is not aware of an agreement’s contents, there is the possibility that a determination could be made which is not within the Tribunal’s power.

3. In a number of previous matters the Tribunal has made a determination by consent that the act, may be done ‘subject to’ or ‘pursuant to’ an agreement (see for example Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner). Because a determination in this form raises the question of whether the terms of the agreement become conditions of the determination the Tribunal has only made a determination of this kind after seeing the relevant agreement and satisfying itself that it does not contain terms which the Tribunal has no power to impose (see discussion in Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner at [6]-[8]). Normally the agreements referred to in these determinations have been relatively simple heritage protection agreements which contain provision for the payment of fees for the conduct of heritage surveys but no ‘compensation’ (in relation to which the Tribunal has no power to make a determination but only the power to order that an amount be paid into trust on account of future compensation (s 41(3)) or payments prohibited by s 38(2) of the Act. In the present matter the HPA is of a similar kind and contains no terms which the Tribunal cannot impose as conditions of a determination. Accordingly there is no impediment to a determination in terms of para (3)(2) of the original consent minute.

4. With respect to the Ancillary Agreement, different considerations apply because there is a provision (clause 5.1(b)) for payment of compensation based on the amount of mining resource produced.  In my view it is not within the power of the Tribunal to make such a provision a condition of the determination.  The next issue is whether the consent minute has this effect.  The draft made the determination subject to the undertakings of the grantee party and native title party to ‘be bound’ by the terms of the Ancillary Agreement.  It is in similar terms to a consent determination made in BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner. In that matter the parties submitted that they were not seeking to make the actual terms of the agreement a condition of the Tribunal’s determination and that making the determination subject to a condition that the parties are bound by it did not have this effect. Reference was made to the broad discretion which the Tribunal has to make a determination by reference to the criteria in s 39 of the Act and its scope and purpose (Evans v Western Australia (1997) 77 FCR 193 at 213; Re Koara People (1996) 132 FLR 73 at 93). Taking account the consent of all three negotiation parties the Tribunal accepted that a determination subject to a condition that the parties were ‘bound’ by the agreement was within power on the basis that the condition did not make the terms of the agreement themselves conditions of the determination. The Tribunal also observed that the proposed condition was similar to that made in some other matters (see Monkey Mia at [23]).

5. The present matter has provoked a reconsideration of this issue.  The Tribunal is now concerned that, despite the intentions of the parties, a determination in the terms sought will make the terms of the Ancillary Agreement conditions of the determination, something which is beyond power because of Clause 5.1(b) of the Ancillary Agreement.  The Government party’s reconsideration of the issue led it to the same conclusion.

6. Even if a determination is made ‘subject to’ an agreement or conditional on the parties being ‘bound’ by it and is within power there remains the question of whether such a condition has any practical effect above and beyond what is already provided for in the Act. In a previous matter (WF03/15 at [8]) the Tribunal has expressed the view (while acknowledging that it is for parties to satisfy themselves of the situation) that making the terms of an agreement conditions of a determination would not enhance the rights which a native title party would have under the agreement because a future act determination, subject to conditions, has effect as if the conditions were terms of a contract among the negotiation parties (s 41(1)). This is something which is secured by the agreement itself.

7. In consent determination matters the issue is not normally whether an agreement has been reached but whether the document giving effect to it (whether State Deed or Ancillary Agreement) has been properly executed by all persons who collectively make up the applicant, registered native title claimant and native title party. One common situation is that some but not all persons named as the applicant have executed an Ancillary Agreement or State Deed. In some cases there is a refusal to sign; in others, logistical difficulties because of where people reside. In other cases, the Representative Body or their solicitors have been given authority to sign an Ancillary Agreement on behalf of a native title party (usually a relatively standard Heritage Protection Agreement) but there are logistical or other difficulties in obtaining the signatures of all person named as part of the applicant to a State Deed. This is a requirement of the Government party before it will execute the State Deed and submit it to the Tribunal as a s 31(1)(b) agreement as required by s 41A(1)(a).

8. The position with respect to the practical effect of validly made Tribunal conditions would be different if the Government party were prepared to make the conditions of a Tribunal determination conditions of the grant of the mining tenement under the Mining Act. This would give the Government party the capacity to take action for forfeiture under the Mining Act if the grantee party was in breach of a condition.  However, the Government party does not want to get involved through the Mining Act in policing agreements between native title parties and grantee parties, which may contain clauses of which it is unaware and indeed in some cases where the other parties wish it to remain confidential to them.  In circumstances where a conditional determination makes the terms of an agreement conditions of the determination the parties are left with private contractual rights.

9. Another possible alternative to a bare determination which was considered at the hearing was to impose a condition along the lines that:

   ‘the act may be done subject to an acknowledgement by the grantee party/native title party that ‘the Ancillary Agreement’ between the native title party and grantee party stands as properly executed by the parties.’

While the Tribunal considers that this form of words probably does not make the terms of the agreement conditions of the determination it is not beyond doubt.  Mr Creewel for the Government party also thought that this type of condition was acceptable but acknowledged that it could still be seen as incorporating the agreement’s terms as conditions of the determination.  He also submitted (and the Tribunal agrees) that whether a conditional determination of this kind is made or whether there is a public recording in the Tribunal’s reasons of the intention of the parties to be bound by the agreement, the result is the same.  The effect is an evidentiary one and could be used later to establish the bona fide intentions of the parties at the time the agreement was made if a dispute about the agreement arose.

1. Following reconsideration by all parties of the issues explained above a fresh minute of a consent determination was executed by them and lodged in the following form:

‘MINUTE OF CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)

Agreed facts

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 Native Title Party and Grantee Party agree to be bound by:

(i)      the terms of the Ancillary Agreement between the Native Title Party and Enmic Pty Ltd dated 15 November 2005 (despite it not having been executed by all registered claimants); and

(ii)     the Heritage Protection Agreement between the Native Title Party, the South West Aboriginal Land and Sea Council and the Grantee Party dated 15 November 2005.

Agreed determination

4.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 70/994 may be done.’

1. In addition to the agreed facts recorded in para 3 of the revised minute Mr van Tonder at the hearing confirmed that his clients (i.e. the native title party, being all the persons named as the applicant acting collectively) agreed to be bound by the Ancillary Agreement.  Ms Menchetti, representing the grantee party, also confirmed that the grantee party was bound by the agreement even though it had not been executed by all the named applicants.  The grantee party’s intention to be bound by the Ancillary Agreement is also confirmed by the fact that it has partly performed it by making some of the payments to be made pursuant to the agreement (Clause 5.1(a)).

2. In support of his submission, which the Tribunal is entitled to have regard to as evidence, Mr van Tonder also produced minutes of a meeting of Yued Named Applicants and Regional 5 Working Party Members of 15 November 2005. The minutes indicate that a resolution was passed accepting the Ancillary Agreement, instructing all the Yued named applicants to sign it and any State Deeds, and supporting any s 35 application by the grantee party to have the mining lease granted in the event that one or more of the Yued applicants refused to sign the deed. The resolution was supported by all members of the working party (i.e. ten) who were present. Mr van Tonder confirmed that this decision making process of the claim group and native title party had been agreed to by them in relation to future act matters in accordance with s 203BC(2)(b) of the Act.

3. The consent determination which is now sought is a bare determination which avoids the potential difficulty of imposing a condition where there are doubts about the Tribunal’s power.  Instead of imposing a condition making the determination subject to the Ancillary Agreement and HPA, the agreements between the native title party and grantee party which the Tribunal accepts have been made are recorded in these reasons.  I am satisfied that all parties consent to the determination.

4. Finally, I observe that the difficulties in relation to Mr Arnold Franks giving effect to the collective decisions of the native title party have been known for some time.  The claim group and SWALSC should give consideration to rectifying this unsatisfactory situation by replacing Mr Franks as one of the persons jointly comprising the applicant.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining lease M70/994 to Enmic Pty Ltd, may be done.

Hon C J Sumner
Deputy President
31 March 2006