Ike Simpson and Ors on behalf of Wajarri Yamatji People/Sinosteel Midwest Corporation Limited/State of Western Australia

[2010] NNTTA 185

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson and Ors on behalf of Wajarri Yamatji People/Sinosteel Midwest Corporation Limited/State of Western Australia, [2010] NNTTA 185 (10 November 2010)

Application No:        WF10/35

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

Ike Simpson and Ors on behalf of the Wajarri Yamatji (WC04/10) (native title party)

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The State of Western Australia (Government party)

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Sinosteel Midwest Corporation Limited (Applicant/grantee party)

FUTURE ACT DETERMINATION

Tribunal:                  Daniel O’Dea, Member

Place:    Perth
Date:     10 November 2010

Catchwords:  Native title - future act - application for determination for the grant of mining lease - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 151
  Mining Act 1978 (WA)

Cases:Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member

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

Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President

Hearing date:  8 November 2010

Representatives:

Native Title Party                Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation

Grantee party:  Mr Mark Gregory, Castledine Legal and Mediation Services

Government Party               Mr Rod Wahl, State Solicitor’s Office

Mr David Crabtree, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 28 March 2007, 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 M20/419 (the proposed tenement) under the Mining Act 1978 (WA) to Stanley Allan MacDonald.

2. The proposed tenement comprises of an area of 506.44 hectares and is situated 57 kilometres north west of Cue, within the Shire of Cue. It is 100 per cent within the registered claim of the Wajarri Yamatji People (WC04/10 – registered from 5 December 2005).

3. The registered native title claimants on behalf of the Wajarri Yamatji People are:

   Ike Simpson, Robin Boddington, Ron Simpson, Charlie Snowball, Monty Walgar, David Jones, Colin Hamlett, Gavin Egan, Mack Mourambine, Timothy Simpson, Bill Pearce, Malcolm Ryan, Neville Mongoo, Gordon Fraser, Rochelle Baumgarten, William Baumgarten and Pam Mongoo (the native title party).

4. On 14 October 2010, being a date more than six months after the s 29 notice was given, Sinosteel Midwest Corporation Limited (the Applicant/grantee party), made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed tenement.

5. Paragraph 9 of the application states the relationship between Stanley Allan MacDonald and the grantee party:

   . . . The application is in the name of Mr Stanley Allan MacDonald. Mr MacDonald agreed to transfer M20/419, once granted, to Kingstream Steel Limited (Kingstream Steel), a corporation which is now called Sinosteel Midwest Corporation Limited (i.e. the Applicant). For the purpose of that agreed transfer, Mr MacDonald and Kingstream Steel (now Sinosteel Midwest Corporation Limited) executed a transfer under the Mining Act 1978 (WA) on 3 November 2000.

6. In the circumstances I am satisfied that the proposed tenement will be transferred to the grantee party upon grant and that the grantee party has authority for the purposes of the determination.

7. Appended to the application was a minute of a consent determination in the following terms, executed by Mr Mark Gregory, on behalf of the grantee party and by Ms Lisa Randall, Claim Lawyer, Yamatji Marlpa Aboriginal Corporation (YMAC) for and on behalf of the native title party:

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

1. The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth).

2. The Negotiation Parties have complied with the requirements of section 31(1)(b) of the Native Title Act 1993 (Cth).

3. The Negotiation Parties consent to a determination under section 38 of the Native Title Act 1993 (Cth) that the act, being the grant of mining lease 20/419 may be done, subject to conditions in the terms of the Minute of Proposed Future Act Consent Determination.

4. The Negotiation Parties sign their consent to the terms of the Minute of Proposed Future Act Consent Determination.

The minute of consent determination was subsequently executed in counterpart by Mr Rod Wahl, State Solicitor’s Office, on behalf of the Government party.

1. 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 the consent.  YMAC is the recognised representative body under the Act for the native title party and represents the native title party 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).

The inquiry findings

1. All parties agreed at the listing hearing heard on 8 November 2010, that the determination could be made on the papers. On the basis of the information contained in the application, affidavit and executed minute, I am satisfied that I can adequately determine the matter in this manner (s 151(2)).

2. At the hearing on 8 November, Ms Randall advised me that she believed that she had received instructions from the applicant of the native title party that they agreed to the doing of the act and consented to this application.

3. The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination  (see Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President; Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member) and I adopt the findings in those matters for the purpose of these proceedings. The Tribunal is entitled to accept the verbal evidence of YMAC’s legal representative on the consent given by the native title party, and there is nothing before me to suggest the contrary.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining lease M20/419 to Sinosteel Midwest Corporation Limited, may be done.

Daniel O’Dea
Member
10 November 2010