Galaxy Resources Ltd/Aden Eades and Others on behalf of Southern Noongar;Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia
[2009] NNTTA 134
•21 October 2009
NATIONAL NATIVE TITLE TRIBUNAL
Galaxy Resources Ltd/Aden Eades and Others on behalf of Southern Noongar;Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, [2009] NNTTA 134 (21 October 2009)
Application No: WF09/19
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
Galaxy Resources Ltd (grantee party/Applicant)
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Aden Eades and Others on behalf of Southern Noongar (WC96/109) (Southern Noongar native title party)
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Glen Colbung and Others on behalf of Wagyl Kaip (WC98/70) (Wagyl Kaip native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Mr Daniel O'Dea, Member
Place:Perth
Date:21 October 2009
Catchwords: Native title — future acts — application for determination for the grant of mining leases — named applicant not signed state deed — native title parties as a whole consent to the determination — consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 151
Mining Act1978 (WA)
Cases: Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia, NNTT WF04/21, [2004] NNTTA 88 (21 September 2004) Hon E M Franklyn QC, Deputy President
Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia/Victoria Diamond Exploration Pty Ltd/Grange Court Pty Ltd, NNTT WF04/7, [2004] NNTTA 38 (10 June 2004) Hon E M Franklyn QC, Deputy President
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President
Hearing date: Determined on the papers
Representative of the Ms Simone Muller,
grantee party: Allion Legal for Galaxy Resources Ltd
Representative for the Ms Maryse Aranda,
Southern Noongar and South West Aboriginal Land and Sea Council
Wagyl Kaip native title
parties:
Representatives of the Ms Shelley Moore, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
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 M74/133, M74/158, M74/159, M74/165, M74/184, M74/196, M74/197 and M74/238 (‘the proposed licences’) under the Mining Act1978 (WA).
M74/133 – 9 January 2002
M74/158 and M74/159 – 21 August 2002
M74/165, M74/184, M74/196, M74/197 and M74/238 – 10 October 2007
Mining leases M74/165, M74/184, M74/196, M74/197 and M74/238 were applied for by Galaxy Resources Ltd (‘the grantee party’). However, the applicants for mining leases M74/133, M74/158 and M74/159 were notified as Maxwell Stanley Chaytor, Janos Locsei, Robert Dennis Walker, John Francis Dowling and Robert James Wanless. The notified applicants transferred their interests in M74/133 on 30 July 2001, and in M74/158 and M74/159 on 22 September 2002, to the grantee party.
The proposed licences are located in the Shire of Ravensthorpe and the area and locations of each are as follows:
M74/133 – 285.94 hectares, 14 kilometres south east of Ravensthorpe
M74/158 – 39.77 hectares, 1 kilometre west of Ravensthorpe
M74/159 – 323.06 hectares 2 kilometres north of Ravensthorpe
M74/165 – 157.71 hectares, 8 kilometres east of Ravensthorpe
M74/184 – 114.30 hectares, 6 kilometres north east of Ravensthorpe
M74/196 – 429.78 hectares, 1 kilometre north west of Ravensthorpe
M74/197 – 335.80 hectares, 3 kilometres north of Ravensthorpe
M74/238 – 285.94 hectares, 15 kilometres south east of Ravensthorpe
The registered native title claims of the Southern Noongar People (WC96/109 registered from 18 November 1996) and Wagyl Kaip People (WC98/70 registered from 29 September 1998) each overlap the proposed licences by 100 per cent. The native title parties with respect to these proceedings are therefore as follows:
Aden Eades, Dallas Coyne, Glen Colbung, Jerry Narkle, Justin Miniter and Rita Dempster on behalf of the Southern Noongar Families (WC96/109) ('Southern Noongar native title party'); and
Glen Colbung, Hazel Brown, Ken Colbung, Mingli Wanjurri-Nungala and Rita Dempster on behalf of Wagyl Kaip (WC98/70) ('Wagyl Kaip native title party')
On 23 February 2009, being a date more than six months after the s 29 notices were given, the grantee party made an application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed licences ('the application').
Paragraph 10 of the application contains a statement that the parties have not been able to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed lease. Relevantly, paragraph 10(1) of the application states:
‘1.The negotiation parties have not been able to execute 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 parties have finalised the terms of a claim wide mining agreement and the Land Council is in the process of finalising the document.’
It is further said that the ill health of one claimant precludes the execution of the State Deed (being an agreement of the kind contemplated by s 31(1)(b) of the Act).
Appended to the application was a minute of a consent determination in the following terms, executed by Ms Simone Muller on behalf of the grantee party. This minute was subsequently executed by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party and by Mr Richard Hickson, Principal Legal Officer of the South West Aboriginal Land and Sea Council (‘SWALSC’) on behalf of the Southern Noongar and Wagyl Kaip native title parties:
‘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 74/133, 74/158, 74/159, 74/165, 74/184, 74/196, 74/197 and 74/238 may be done.’
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 parties) are legally represented and those representatives have advised the Tribunal of the consent. SWALSC is the recognised representative body under the Act for the Southern Noongar and Wagyl Kaip native title parties and represents the native title parties in these proceedings. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon C J Sumner, Deputy President).
The Inquiry Findings
All parties have agreed that the determination could be made on the papers, amongst which included an affidavit from the representative of the native title parties attesting to its authority to bring a consent determination application on their behalf with respect to the proposed licences. I am satisfied that I can adequately determine the matter in this manner (s 151(2)).
The affidavit of Mr Hickson, Principal Legal Officer of SWALSC, filed with the Tribunal on 6 October 2009 attests that instructions were obtained from the Southern Noongar and Wagyl Kaip native title parties by the passage of a resolution at the Working Group Meeting held on 19 and 20 August 2009. The affidavit of Mr Hickson confirms that the Southern Noongar and Wagyl Kaip native title parties consent to the determination being made in relation to the proposed licences. A copy of the Southern Noongar and Wagyl Kaip native title parties’ resolution is attached as ‘Exhibit A’ to Mr Hickson’s affidavit and was made in the following terms:
‘It is hereby resolved that:
1.The Working Party endorses the offer made by Galaxy Resources Limited dated 19 May 2009;
2. The Working Party directs registered claimants to execute the final agreement;
3. The Working Party directs registered claimants to execute the State Deeds;
4. The Working Party instructs SWALSC to withdraw any objections that have been lodged against the Mining Leases; and
5.The Working Party supports any section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that the Mining Leases as listed in the Agreement be granted.’
The reason for seeking the determination in respect of the Southern Noongar and Wagyl Kaip native title parties was detailed in the s 35 application. Paragraph 10(2) of the application states:
‘2.The native title claim group working party has resolved to execute the agreement once it is finalised and resolved to execute State Deeds in relation to mining lease application 74/136 and consent to a section 35 application if not all the registered native title parties are able to execute the State Deeds. One of the registered native title claimants is ill and not available to execute the State Deed.’
The Tribunal has previously accepted the inability to obtain the signatures of all members of an applicant group due to health reasons as a legitimate basis for seeking a consent determination (see for example Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia/Victoria Diamond Exploration Pty Ltd/Grange Court Pty Ltd, NNTT WF04/7, [2004] NNTTA 38 (10 June 2004) Hon E M Franklyn QC, Deputy President (‘Victoria Diamond’); Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia, NNTT WF04/21, [2004] NNTTA 88 (21 September 2004) Hon E M Franklyn QC, Deputy President). The circumstances of those cases differ in that all the named applicants, with the exception of the incapacitated applicant, had signed a State Deed. However, in this present matter I am satisfied that on the basis of the evidence provided to the Tribunal, the Southern Noongar and Wagyl Kaip native title parties as a whole have agreed to the grant of the proposed licences and consent to a determination in the terms sought and I adopt Deputy President Franklyn’s findings in Victoria Diamond at [16] in relation to the inability of one of the named applicants to execute the State Deed because of ill health.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining leases M74/165, M74/184, M74/196, M74/197 and M74/238 to Galaxy Resources Ltd, may be done.
Daniel O'Dea
Member
21 October 2009
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