Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Silver Swan Group Limited/State of Western Australia
[2011] NNTTA 26
•24 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Silver Swan Group Limited/State of Western Australia, [2011] NNTTA 26 (24 February 2011)
Application No: WF10/36
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/Applicant)
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Silver Swan Group Limited (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 24 February 2011
Catchwords: Native title – future act – application for determination for the grant of mining leases – 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, 61, 62A, 253
Mining Act 1978 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner, Deputy President
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/John Edward Telfer/State of Western Australia, NNTT WF10/17 [2010] NNTTA 164 (13 October 2010), Daniel O’Dea, Member
Hearing date: Determined on the papers
Representatives:
Native Title Party: Mr Akmal Raea Khan, Yamatji Marlpa Aboriginal Corporation
Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation
Grantee Party: Dr Susan Vearncombe, Silver Swan Group Limited
Mr Tony Lomax, Hardy Bowen Lawyers
Mr Brett Anderson, Anderson Tenement Management
Government Party: Mr Rod Wahl, State Solicitor’s Office
Ms Janice Goodwin, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 13 March 1996, 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 M51/566 (the proposed lease) under the Mining Act 1978 (WA) to Colin Ross Atkins.
On 27 March 1996, 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 Leases M51/567 and M51/579 (the proposed leases) under the Mining Act 1978 (WA) to Colin Ross Atkins for M51/567 and M Smistik for M51/579.
On 20 June 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 Leases M51/656, M51/657 and M51/658 (the proposed leases) under the Mining Act 1978 (WA) to James Afred Gray.
All of the proposed leases are within the Wajarri Yamatji native title claim (WC04/10 – registered from 5 December 2005). Their details are as follows:
| Tenement | Area | Location | Shire |
| M51/566 | 819.69 hectares | 30 kilometres north northwest of Meekatharra | Meekatharra |
| M51/567 | 7.28 hectares | 25 kilometres northwest of Meekatharra | Meekatharra |
| M51/579 | 99.95 hectares | 45 kilometres south southwest of Meekatharra | Meekatharra |
| M51/656 | 480.34 hectares | 20 kilometres northwest of Meekatharra | Meekatharra |
| M51/657 | 684.65 hectares | 19 kilometres north of Meekatharra | Meekatharra |
| M51/658 | 734.09 hectares | 27 kilometres north of Meekatharra | Meekatharra |
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).
On 22 November 2010, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed leases M51/566, M51/567, M51/579, M51/656, M51/657 and M51/658 The native title party requested that the future act determination be made by consent.
Appended to the application was a minute of a consent determination in the following terms, executed by Mr Akmal Raea Khan, 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 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 51/566, Mining Lease 51/567, Mining Lease 51/579, Mining Lease 51/656, Mining Lease 51/657 and Mining Lease 51/658 may be done.
The minute of consent determination was subsequently executed in counterpart by Dr Susan Vearncombe, on behalf of the grantee party on 25 January 2011 and Mr Jeff O'Halloran, of the State Solicitor’s Office on behalf of the Government party, on 13 December 2010.
Paragraphs 5 to 11 of the supplementary affidavit of Mr Tony Lomax, the solicitor for the grantee party, affirmed on 2 February 2011, sets out the interest of the grantee party in the tenements:
5.This affidavit concerns the rights of the Grantee Party to be registered as the holder of M51/566, M51/656, M51/657 and M51/658 four out of the six Tenements referred to in the First AFL Affidavit.
6.As regards the other two Tenements referred to in the First AFL Affidavit, namely M51/567 and M51/579, M51/567 is already registered in the name of St Barbara Ltd and M51/579 is already registered in the name of the Grantee Party.
7.The First AFL Affidavit fully and adequately deals with the Grantee Party ownership of M51/567 and M51/579 and the right of the Grantee Party to have M51/579 registered as the holder of M51/579.
8.I am advised and verily believe that St Barbara Ltd has previously acquired the beneficial ownership of M51/566 from Colin Ross Atkins. Colin Ross Atkins has signed, as transferor, a Form 23 “Transfer” in relation to Mining Lease 51/566 pursuant to the Mining Act 1978 (WA) in favour of St Barbara Ltd, as transferee, (attached and marked ‘AFL 1A’). Once ‘AFL 1A’ is signed by St Barbara Ltd and lodged at the Department of Mines and Petroleum the Grantee Party will have the right, as demonstrated by the information contained in the First AFL Affidavit, to be ultimately registered as the holder of M51/566.
9.I am advised and verily believe that St Barbara Ltd has previously acquired the beneficial ownership of M51/656 from James Alfred Gray. James Alfred Gray has signed, as transferor, a Form 23 “Transfer” in relation to Mining Lease 51/656 pursuant to the Mining Act 1978 (WA) in favour of St Barbara Ltd, as transferee, (attached and marked ‘AFL 2A’). Once ‘AFL 2A’ is signed by St Barbara Ltd and lodged at the Department of Mines and Petroleum the Grantee Party will have the right, as demonstrated by the information contained in the First AFL Affidavit, to be ultimately registered as the holder of M51/656.
10. I am advised and verily believe that St Barbara Ltd has previously acquired the beneficial ownership of M51/657 from James Alfred Gray. James Alfred Gray has signed, as transferor, a Form 23 “Transfer” in relation to Mining Lease 51/657pursuant to the Mining Act 1978 (WA) in favour of St Barbara Ltd, as transferee, (attached and marked ‘AFL 3A’). Once ‘AFL 3A’ is signed by St Barbara Ltd and lodged at the Department of Mines and Petroleum the Grantee Party will have the right, as demonstrated by the information contained in the First AFL Affidavit, to be ultimately registered as the holder of M51/657.
11.I am advised and verily believe that St Barbara Ltd has previously acquired the beneficial ownership of M51/658 from James Alfred Gray. James Alfred Gray has signed, as transferor, a Form 23 “Transfer” in relation to Mining Lease 51/658 pursuant to the Mining Act 1978 (WA) in favour of St Barbara Ltd, as transferee, (attached and marked ‘AFL 4A’). Once ‘AFL 4A’ is signed by St Barbara Ltd and lodged at the Department of Mines and Petroleum the Grantee Party will have the right, as demonstrated by the information contained in the First AFL Affidavit, to be ultimately registered as the holder of M51/658.
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).
Paragraphs 17 to 21 of the affidavit of Mr Akmal Raea Khan solicitor for the native title party, affirmed on 22 November 2010 explain why a consent determination is sought:
17.In respect of the execution of the Agreement, all signatures have been obtained from the Applicants save for:
a. One deceased Applicant; and
b. Mr Ike Simpson.
18.The signature of the deceased Applicant is unable to be obtained.
19.In respect of Mr Ike Simpson, I am informed and do verily believe that on various occasions within the last six (6) months YMAC has organised for the Applicant and either his son or daughter to either attend the Geraldton office or for the YMAC Community Liaison Officer to drive to Mr Simpson’s place of residence to affect such signature.
20.Despite such effors [sic], YMAC has been unable to obtain Mr Simpson’s signature and a meeting for the purpose of singing [sic] the Agreement with the aforementioned Applicant has not taken place.
21.Accordingly, the Native Title Party hereby apply for a consent determination as the current on-going circumstances may cause detriment to the commercial interest of the Wajarri Yamatji Claim.
The affidavit of Mr Khan deposes to the instructions he received to proceed with a consent determination which were obtained from the native title party at a working group meeting held in Yalgoo on 20 August 2010. The Tribunal is entitled to accept the evidence of YMAC’s legal representative on whether appropriate consent has been given by the native title party and there is nothing in the papers before me to suggest the contrary. At paragraph 41 of his affidavit, Mr Khan states:
41. YMAC is satisfied that the Native Title Party and the Applicants collectively consent to the determination, as evidence by the resolution of the Working Group passed at the recent Yalgoo Meeting referred to in paragraph 34 above.
The native title party is free to arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit. Therefore, day-to-day decision-making may be conferred upon a working group. However, the statutory framework of the Act requires that the person or persons comprising the applicant alone are authorised to bring a native title application and deal with all matters in relation to it (s 61(2) and s 62A). Part 2 of Division 3 of the Act, which deals with future acts, specifies that the native title party is either a registered native title body corporate, where land has been determined, or the registered native title claimant, if it is still subject to claim (s 29(2)). The Registered Native Title Claimant is defined in s 253 of the Act to mean:
. . . a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.
Consequently, in circumstances such as this, where one or more of the applicants is unable or unwilling to sign the necessary state deed, the question for the Tribunal is one confined to the consent of the applicant. The views of any other internally constituted group are extraneous to that question. The legal practitioner representing the group must be satisfied that the person or persons comprising the applicant acting collectively, in fact, consent to the doing of the particular act, the subject of the application. It would be preferable if this information was conveyed to the Tribunal in concise and decisive terms (Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385).
The inquiry findings
On the basis of the information contained in the application, affidavit and executed minute I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title party on the basis of an affidavit from its legal representative, specifically in relation to the current native title party (see Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member; Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member; Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/John Edward Telfer/State of Western Australia, WF10/17 [2010] NNTTA 164 (13 October 2010) Daniel O’Dea, Member).
In this matter I am satisfied that, based on the evidence provided to the Tribunal, the persons comprising the applicant, acting collectively, have consented to the grant of the proposed tenement and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining leases M51/566, M51/567, M51/579, M51/656, M51/657 and M51/658 to Silver Swan Group Limited, may be done.
Daniel O’Dea
Member
24 February 2010
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