Fredrick Taylor Senior & Others on behalf of the Amangu People/Western Australia/Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd
[2012] NNTTA 86
•26 July 2012
NATIONAL NATIVE TITLE TRIBUNAL
Fredrick Taylor Senior & Others on behalf of the Amangu People/Western Australia/Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd, [2012] NNTTA 86 (26 July 2012)
Application No: WF11/14
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
Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd (Applicant/grantee party)
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Fredrick Taylor Senior & Others on behalf of the Amangu People (WC04/2) (native title party)
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The State of Western Australia (Government party)
DECISION TO DISMISS SECTION 35 APPLICATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 26 July 2012
Catchwords: Native title – future acts – grantee party consent determination application - application for determination for the grant of mining leases – named applicants not signed state deed - native title party no instructions to consent – contested determination - no contentions or evidence initially submitted by the native title party – ancillary agreement – further evidence regarding state deed and ancillary agreement– jurisdiction of Tribunal – application dismissed
Legislation:Native Title Act1993 (Cth), ss 29, 31(1)(b), 35, 36, 38, 66B
Mining Act 1978 (WA)
Cases:Cameron v Hoolihan and others [2006] NNTTA 3
Dann v Western Australia [2011] FCA 99
Foster and others v Copper Strike Ltd and another (2006) 200 FLR 182
The Griffin Coal Mining Co Pty Ltd v Nyungar People (Gnaala Karla Booja) and others [2006] NNTTA 19
Representatives of the Mr David Von Horn, Tiwest Pty Ltd
grantee party: Ms Maryanne McKenzie, Tiwest Pty Ltd
Representatives of the Mr Rod Wahl and Mr Ian Repper, State Solicitor’s Office
Government party:Ms Faye Mitchell, Department of Mines and Petroleum
Representative of the Mr Ryan Eaton, Yamatji Marlpa Aboriginal Corporation
native title party: Ms Maimbo Chilala, Yamatji Marlpa Aboriginal Corporation
REASONS FOR DECISION TO DISMISS SECTION 35 APPLICATION
Background
This matter raised a factual matrix which, as I understand it, was unique in the National Native Title Tribunal’s (‘the Tribunal’) history. Following submissions by parties, which are outlined in this determination, I am satisfied that, for this particular factual matrix, the Tribunal does not have jurisdiction to make a determination under s 38 of the Native Title Act 1993 (‘the Act or ‘the NTA’). As such, I dismiss the application under s 148(a) of the Act, which has the consequence that the future acts may be done in accordance with s 28(1)(f) of the Act. Parties do not take issue with this approach, and I have outlined below reasons which detail the course of this matter, the submissions of parties, and the rationale for the decision.
Introduction
On 7 June 2006, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Act of future acts namely, the proposed grant of mining leases M70/1203, M70/1204, M70/1205, M70/1207, M70/1208, M70/1209, M70/1210, M70/1211, M70/1212, M70/1213, M70/1214, M70/1215, M70/1218 and M70/1219 (‘the proposed leases’) under the Mining Act 1978 (WA) to Magnetic Minerals Pty Ltd. Mining Tenement Register searches submitted by the Government party show that, for all of the proposed leases, Magnetic Minerals Pty Ltd transferred 50 per cent of its shares to Tronox Western Australia Pty Ltd and 50 per cent to Yalgoo Minerals Pty Ltd on 7 November 2006. Accordingly, Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd are the ‘grantee party’ in this matter.
A Tribunal Geospatial analysis prepared on 15 May 2012 shows that the proposed leases are between 7.48 and 10.05 square kilometres in size. The combined size of the proposed leases is 133.99 square kilometres. The s 29 notices describe six of the proposed leases as being located approximately 30-35 km south east of Dongara and the other nine being located approximately 30-35km north of Eneabba, which is in effect the same general location (that is, approximately 85 kilometres south east of Geraldton) – each lease is adjacent to at least one of the other leases. All of the proposed leases entirely overlap the registered claim of the Amangu People (WC04/2 – registered from 3 March 2005).
At the time the s 29 notices were issued, the native title party applicant comprised: Raymond Dann, Wayne Warner, Ron Ronan, Rob Ronan, Rod Little, Clarrie Cameron, Betty Forsyth, Donna Ronan, and CW (deceased). On 14 February 2011, Barker J granted an application that the applicant be replaced under s66B of the Act (Dann v Western Australia [2011] FCA 99). The reasons cited for the change was that ‘the applicant for the Amangu was not representative of the families contained in the claim group description’ (at [21]). Accordingly, the native title party applicant in respect of these proceedings is Fredrick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell on behalf of the Amangu People (‘the native title party’).
Consent determination application
On 10 November 2011, being a date more than six months after the s 29 notices were issued, the grantee party made an application pursuant to s 35 of the Act for a Future Act Determination pursuant to s 38 of the Act. The grantee party’s application indicated that there ‘have been difficulties in executing a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act’. The application did, however, state that ‘a whole of claim agreement’ (later referred to in this determination as the ‘Dongara Project Agreement’ or ‘the Agreement’ or ‘DPA’) existed between the native title party and the grantee party. The Agreement had been executed in March 2008 by all of those persons who jointly constituted the native title party at that time (with the exception of CW who was deceased). The Agreement provides that the native title party will agree to the grant of any mining leases to the grantee party and do everything necessary to enable the mining leases to be granted in relation to the project area as defined in the Agreement. Tribunal Geospatial Services confirmed that the mining leases to be granted formed part of the Dongara Project Agreement, as described in that Agreement.
The application to the Tribunal was made on the basis that parties sought a consent determination. Parties informed the Tribunal that the s 35 consent determination application had been made to the Tribunal because there had been significant delay in the native title party signing the State Deed relating to the leases. The State Deed is a document required by the Department of Mines and Petroleum to be executed before it will grant a mining lease.
In Foster and others v Copper Strike Ltd and another (2006) 200 FLR 182, (at [27]-[39]), Deputy President Sosso set out the principles applicable to a consent determination in such circumstances. As this matter was not a consent determination in the end, I will not go into further detail on the principles here.
At conferences held in January, February and March 2012, the native title party representative outlined attempts to have the State Deed executed by all of those persons who jointly constitute the native title party. This was also outlined in email communications with the Tribunal and parties on a number of occasions. Adjournments were allowed for the State Deed to be executed by the native title party. Attempts by the native title party representative to enable signing of the State Deed by all of those persons who jointly constitute the native title party were unsuccessful.
At the 23 March 2012 conference, the native title party representative advised that he had attended an Amangu working group meeting on 22 March 2012 but had not been given instructions in relation to the matter, despite making his clients aware of the issues, and so was not able to provide an affidavit in support of a Consent Determination or take any other action apart from continuing to attempt to gather signatures. He advised that five of the eleven persons who jointly constitute the native title party were yet to sign the State Deed.
The grantee party provided the Tribunal with a copy of the Dongara Project Agreement. I note that the copy of the Agreement provided to the Tribunal was signed by the Amangu People and the Agreement states ‘Amangu People means: a) until the Native Title Claim is the subject of a determination of Native Title, the people on whose behalf the Native Title Claim is made, as varied from time to time...’ It was confirmed, at a later meeting, that the Agreement had been executed by the grantee party.
It appeared at this stage that it was not likely that this matter would be resolved by the native title party signing the State Deed, nor by instructions to proceed to a Consent Determination. As such, the Tribunal sent an email to parties (on 2 April 2012) seeking information about:
-whether the Government party could confirm whether it required the signatures of all of the people jointly comprising the named applicants, on the State Deed; and
-whether the grantee party and Government party were willing to allow a further reasonable time for the native title party representatives to obtain the required signatures on the State Deed, and if so, what they considered a reasonable time to be.
Attached to the email were draft directions for a Contested Future Act Determination Inquiry for the parties to consider. In response, the Government and grantee parties both requested that the Tribunal proceed to a Contested Future Act Determination Inquiry, but remained supportive of a resolution of the matter by consent if that was possible.
On 20 April 2012, the Tribunal contacted the native title party representative and was advised that all signatures had been obtained except one (being of a person who refused to sign because of an ‘unrelated issue’).
On 23 April, the Tribunal sent administrative directions to the parties setting out compliance dates for the submission of evidence and contentions for a Contested Future Act Determination Inquiry. It was stated in the email that parties and the Tribunal remained open to resolution of the matter by Consent Determination.
On 24 April, the Tribunal spoke with the native title party representative who advised that he still did not have instructions to support a Consent Determination or to lodge any submissions for an Inquiry. On 14 May, the Tribunal emailed parties seeking their confirmation that they wished to proceed with a Future Act Determination Inquiry and asking whether they were agreeable to the Inquiry occurring ‘on the papers.’ The Government party and grantee party both responded with confirmation that they wished to proceed to Inquiry and that they were agreeable to the matter proceeding on the papers. No submissions were received from the native title party.
Contested future act determination
On 17 May I confirmed that the administrative directions issued on 23 April would be the final directions for the contested Future Act Determination Application.
The native title party did not submit any contentions or evidence or seek an extension of time to do so, on or before their compliance date of 11 May 2012. The native title party did not challenge the Tribunal’s power to make a determination on the basis that the grantee party and/or the Government party had not negotiated in good faith (see ss 31(1)(b) and 36(2) of the Act). On the face of it then, subject to s 35(1) and s 37(a) of the Act, the Tribunal had the power to conduct the Inquiry and make a Determination.
The Government party and grantee party each submitted contentions and evidence on 1 June 2012, in accordance with the compliance dates set out in the directions. In such circumstances, the Tribunal would rely on the principles involved in making a determination in the absence of evidence from the native title party enunciated in a number of future act determinations, including:
· Cameron v Hoolihan and others [2006] NNTTA 3 (‘Cameron’), in particular see [15]-[17]; and
· The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19 at [7]-[10].
In the usual course of events, I would outline in detail the contentions and evidence provided by the grantee and Government party. For the reasons outlined below, this is not necessary.
The Tribunal held a directions hearing on 29 June 2012, to further clarify the status of the Dongara Project Agreement, before considering making a determination in the matter. My concern was whether or not the Tribunal had jurisdiction to consider the matter, if the Agreement was an agreement of the kind set out in s 31(1)(b) (see s35(1)(b) and s 37(a) of the Act).
Jurisdictional issue: the nature of a s 31(1)(b) agreement
Parties were invited to attend a further hearing on 29 June 2012, where the issue of the nature of the Dongara Project Agreement was canvassed. Because of the unique facts of the matter, parties were then invited to lodge written submissions on the issue by 13 July 2012.
Grantee Party submissions
The grantee party provided submissions that the proposed licences were part of the Agreement, and addressed the possible outcomes where the Tribunal considered the Agreement to be of the kind mentioned in s 31(1)(b), and, alternatively, where the Tribunal did not consider the Agreement to be of that kind.
In particular, the grantee party indicated that:
·The Dongara Project Agreement ‘covers the area of the Current Applications and...provides for the agreement of the Native Title Party to the grant of the Current Applications’ (at 10).
·Section 15 of the Agreement ‘provides that the Native Title Party consents and agrees to (among other things): (a) the Grant of the “Mining Leases” (now already granted) and any “Future Mining Tenure” to the Grantee party and (b) the prompt doing of all acts or things necessary, convenient or desirable to be done to enable the grant...’ (at 25).
·‘The Current Applications are Future Mining Tenure under the DPA’ (at 27).
·One view of s 31(1)(b) if the Act ‘is that the agreement of each of the negotiation parties (as defined under section 30A of the Act) is required. In practise, that is the way in which section 31 deeds have historically proceeded in WA’ (at 38 – emphasis added).
(If I may provide some clarification on this point, it is in fact State Deeds which have proceeded on that basis, rather than ‘section 31 deeds’. As outlined at paragraph [6] of this determination, the State Deed is a document required by the Department of Mines and Petroleum to be executed before it will grant a mining lease-it is not a requirement under the Act).
·‘While the Grantee Party submits that there is no doubt that the provisions of the DPA provide the Native Title Party’s agreement to the grant of the Current Applications, it notes that the certainty implicit in the references to an act in the provisions in Subdivision P [of the Act] does raise a question as to whether, without an accompanying State Deed, the DPA is sufficiently clear in and of itself to confirm the validity of the grant of the Current Applications under section 28(1)(f) [of the Act]’ (at 44 – emphasis in original. In my view, in the circumstances of this matter, the Dongara Project Agreement is sufficiently clear).
·‘in the event that the Tribunal considers that only the native title party needs to sign an agreement to meet the requirements under section 31(1)(b), the Grantee Party submits that the Tribunal must also find that...:
a)the DPA is an agreement of the kind referred to under section 31(1)(b) of the Act;
b)section 37 of the Act divests the Tribunal of jurisdiction;
c)section 28(1)(f) of the Act is complied with; and
d)the State may grant the Current Applications’ (at 39).
This is consistent with the approach taken by Deputy President Sosso in Cameron, and I agree with the grantee party on this submission point.
Government Party submissions
The Government party submitted that:
·section 31(1)(b) of the Act ‘requires the Native Title Party’s agreement as to the doing of the future act’ (at 26 – emphasis in original).
·‘provided that the future act(s) in question clearly and unambiguously falls within the “class” of future acts to which agreement is given, this will constitute agreement to the doing of the future act(s) in question for the purposes of section 31(1)(b)’ (at 36).
·‘neither the Grantee Party nor the Native Title Party appears to dispute that the Inquiry Tenements fall within...the class of acts agreed to by the Native Title Party through its execution of the DPA. The Government Party has no reason to submit otherwise’ (at 38).
·In this matter, there is no indication that the native title party are withdrawing their agreement to the Dongara Project Agreement (at 39-41).
·The Tribunal ‘should find that it does not have jurisdiction to make a determination under section 38 of the NTA, due to the effect of s 35(1)(b)’ provided it is satisfied that:
a)the proposed licences fall within the definition of ‘Future Mining Tenure’ within the Dongara Project Agreement, and
b)‘any failure to execute the required state deed in relation to the Inquiry Tenements is not a joint action of the registered native title claimant, and therefore is not indicative of a withdrawal of agreement to the granting of the Inquiry Tenements by the Native Title Party as a whole’ (at 42).
·If the Tribunal is so satisfied, it ‘can dismiss the application pursuant to section 148(a)’ of the Act, with ‘the consequence that the Future Acts may be done pursuant to section 28(1)(f) of the NTA’ (at 42).
I agree with the submissions of the Government party as outlined in paragraph [23] of this determination.
Native Title Party submissions
The native title party representative confirmed that they now had firm instructions to proceed with the execution of a State Deed, and provided documentary support for those instructions which could be considered by the Tribunal ‘in the instance that the Tribunal find that it has jurisdiction to determine the matter’ (via email dated 13 July 2012). As I have decided that the Tribunal does not have jurisdiction in this matter, I have not further considered this documentary evidence.
For the reasons outlined above, I dismiss the application under s 148(a) of the Act, because there is an agreement of the kind mentioned in s 31(1)(b) of the Act.
Determination
The s 35 application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Helen Shurven
Member
26 July 2012
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