Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/Mercator Gold Australia Pty Ltd
[2008] NNTTA 102
•31 July 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/Mercator Gold Australia Pty Ltd, [2008] NNTTA 102 (31 July 2008)
Application No: WF08/22
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
Ike Simpson and Others on behalf of the Wajarri Yamatji (WC04/10) (Applicant/native title party)
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The State of Western Australia (Government party)
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Mercator Gold Australia Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 31 July 2008
Catchwords: Native title – future act – application for determination for the grant of mining lease – logistical difficulties preclude execution of ancillary agreement and State Deed – native title party consents to the determination – consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, [2008] NNTTA 15 (5 February 2008), John Catlin
Hearing date: 24 June 2008
Representative of the
native title party: Ms Toby Jones, Yamatji Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
Representative of the
grantee party: Mr Brett Anderson, Anderson’s Tenement Management
REASONS FOR FUTURE ACT DETERMINATION
On 7 March 2001, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of mining lease M51/805 (‘the proposed lease’) to St Barbara Mines Ltd.
Australian Securities and Investments Commission records indicate that St Barbara Mines Ltd changed its name to St Barbara Ltd in December 2005.
On 21 August 2006 St Barbara Ltd transferred its interest in the proposed lease to Mercator Gold Australia Pty Ltd (‘the grantee party’).
The proposed lease comprises an area of 457 hectares and is situated 12 kilometres south westerly of Meekatharra in the Shire of Meekatharra.
At the notification closing date of 7 July 2001 the proposed lease was entirely overlapped by the registered native title claim of the Ngoonooru Wadjari People (WC00/12 – registered from 20 June 2001).
Between 26 November 2001 and 17 August 2004 the proposed lease was the subject of Tribunal facilitated mediation assistance under s 31(1) of the Act.
On or about 17 August 2004, an agreement was reached between the St Barbara Mines Ltd and the Ngoonooru Wadjari People in relation to the proposed lease.
On 4 February 2005, the Federal Court ordered the combination of the Ngoonooru Wadjari People and Wajarri Elders claims into the Wajarri Yamatji claim (native title determination application WC04/10). The Wajarri Yamatji native title determination application was accepted for registration on 5 December 2005. The native title party in respect of these proceedings is therefore:
·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 on behalf of the Wajarri Yamatji (WC04/10) (‘native title party’).
On 13 May 2008, being a date more than six months after the s 29 notice was given, the native title party made application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed lease. 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 Toby Jones (Senior Regional Legal Officer, Yamatji Land and Sea Council (‘YLSC’)) 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 51/805 may be done.’
The minute of consent determination has subsequently been executed by Denis Geldard, on behalf of the grantee party and Jeff O’Halloran, on behalf of the Government party.
Paragraph 10 of the application includes the statement below:
‘The native title party consents to the proposed act being done, that is the grant of Mining Lease 51/805 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Mining Lease 51/805 can therefore be granted in pursuance to the consent determination.’
It is further said that logistical difficulties preclude the execution of the ancillary agreement and State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act).
The Tribunal has the 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. 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 and findings
On 24 June 2008, I conducted a hearing attended by Ms Toby Jones, appearing for the native title party and Mr Rod Wahl and Ms Janice Goodwin appearing for the Government party. Mr Anderson for the grantee party was not available for the hearing.
At that hearing I confirmed receipt of the minute of consent signed by representatives of each of the parties and agreed that the inquiry could proceed on the papers pending the provision of an affidavit by the native title party’s representative attesting to it’s authority to bring a consent determination application on behalf of the native title party with respect to the proposed lease.
On 28 July 2008 the YLSC provided the Tribunal with the affidavit of Toby Jones, sworn on 28 July 2008. The affidavit refers to the proposed lease (amongst others the subject of another future act determination application) and sets out the basis on which the YLSC believes it is authorised to bring a consent determination application on behalf of the native title party. Ms Jones attests:
‘I, Toby Jones, legal practitioner, of c/- Yamatji Land & Sea Council (YLSC), 171 Marine Terrace, Geraldton in the State of Western Australia, swear as follows:
1.I am authorised to swear this affidavit on behalf of YLSC in relation to this matter, a Consent Determination under section 38 of the Native Title Act 1993 (Cth).
2.I am the Senior Regional Legal Officer for YLSC. YLSC forms part of Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC). YMBBMAC is the registered Native Title Representative Body for the Geraldton and Pilbara region of Western Australia.
3.In or around March 2008, I became the claim lawyer for the Wajarri Yamatji native title claim (WAD6003/98). My role is to provide legal representation and advice to the Wajarri Yamatji native title claim group (WJY Claim Group) about the Wajarri Yamatji native title claim and legal matters that affect claimant’s asserted native title rights and interests.
4.The primary way in which I receive instructions in the course of acting for the WJY Claim Group is through resolutions of the Wajarri Yamatji Working Group (Working Group).
5.I am informed by the minutes of a Wajarri Yamatji community meeting held on 18 November 2007 that the WJY Claim Group through the Wajarri Yamatji community, validly delegated authority to the current Working Group to deal with the day-to-day business of the Wajarri Yamatji native title claim subject to the ongoing supervision and directions of the WJY Claim Group.
6.I met with the current Working Group on 11 April 2008, where I discussed with them the Grantee Party’s exploration and mining tenements numbered E51/913, M51/805 and M51/738 (Tenements).
7.I have inspected a copy of the minutes from the 11 April 2008 Working Group meeting and can confirm:
a.there was quorum at the meeting;
b.the current Working Group instructed YLSC to lodge a section 35 consent determination with respect to the Tenements and to do all things necessary to finalise the applications.’
The Tribunal is entitled to accept the evidence of YLSC’s legal representative on whether appropriate consent has been given by the native title party and there is nothing to suggest the contrary. The Tribunal has previously accepted the difficulties in obtaining signatures of the Wajarri Yamatji named applicants to a State Deed as a legitimate basis for seeking a consent determination in Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007) and Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, [2008] NNTTA 15 (5 February 2008) and I adopt the findings in those matters in these proceedings.
On the basis of the information contained in the application, the confirmation provided by Ms Jones at the hearing and her subsequent affidavit, I am satisfied that the native title party has consented to the doing of the act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M51/805 to Mercator Gold Australia Pty Ltd, may be done.
Daniel O’Dea
Member
31 July 2008
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