Irwin Tasman Lewis & Ors on behalf of the Widi Mob/Karara Mining Limited/Western Australia
[2013] NNTTA 178
•17 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Irwin Tasman Lewis & Ors on behalf of the Widi Mob/Karara Mining Limited/Western Australia [2013] NNTTA 178 (17 December 2013)
Application No: WF2013/0019
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
Irwin Tasman Lewis, Darryl Noel Woods, Name withheld for cultural reasons, Julie Lewis, Bill Lewis, Gregory Denis Martin, Gloria May Lewis (WC1997/072) (Applicant/native title party)
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Karara Mining Limited (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Raelene Webb QC, President
Place: Perth
Date: 17 December 2013
Catchwords: Native title – future act – application for determination in relation to grant of mining lease – member of the applicant refuses to consent for reasons unrelated to the agreement – native title party as a whole consents to the determination – consent determination that the act may be done
Legislation:Native Title Act1993 (Cth) ss 29, 31, 38, 61(2), 62A, 109, 253
Cases:Placer (Granny Smith) Pty Ltd v Western Australia (2000) 163 FLR 87, ('Granny Smith')
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, (‘Monkey Mia’)
Moore v Mungeranie (2005) 193 FLR 62, (‘Mungeranie’)
Foster v Copperstrike (2006) 200 FLR 182, ('Copperstrike')
Venus Metals Corporation Limited/Irwin Tasman Lewis & Ors on behalf of the Widi Mob/Western Australia [2013] NNTTA 87, (‘Venus Metals’)
Hearing Date: On the papers
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government Party: Mr Rod Wahl, State Solicitor’s Office
Ms Jan Mason, Department of Mines and Petroleum
Representative of the Ms Julie Lewis
native title party:
Representative of the Ms Yvette Collins, Karara Mining Limited
grantee party: Mr Desmond Mongoo, Karara Mining Limited
REASONS FOR FUTURE ACT DETERMINATION
On 24 April 2013, the State of Western Australia (‘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 M59/748 (‘the proposed licence’) to Karara Mining Limited (‘the grantee party’) under the Mining Act 1978 (WA).
The proposed licence comprises an area of 1,124.68 hectares located 79 kilometres south of Yalgoo in the Shire of Perenjori. The entire area is subject to the registered native title claim of the Widi Mob (WC1997/072 – registered from 12 December 2011). No other registered claim overlaps the proposed licence.
The registered native title claimants for the Widi Mob are Irwin Tasman Lewis, Darryl Noel Woods, Julie Lewis, Bill Lewis, Gregory Denis Martin and Gloria May Lewis (‘the native title party’). Another person is listed on the Register of Native Title Claims as being part of the applicant group; however, that person’s name has been omitted for cultural reasons.
On 29 October 2013, being a date more than six months after the notification day, the native title party applied to the Tribunal to make a determination under s 38 of the Act, in relation to the proposed licence. The application states that the grantee party has entered into an ancillary agreement with the native title party, under which the native title party has consented to the grant of the proposed licence, but one of the members of the applicant group has refused to sign the ancillary agreement or any s 31 deed relating to it.
I accepted the application on 17 December 2013.
On 12 November 2013, the Government party provided a proposed Minute of Consent Orders (‘Minute’) to the Tribunal. The Tribunal circulated the proposed Minute to the native title party, the Government party and the grantee party on 3 December 2013. The Minute has been signed in counterpart by: Ms Julie Lewis on behalf of the native title party; Mr Paul Sims, CEO of the grantee party, on behalf of the grantee party; and Mr Jeff O’Halloran of the State Solicitor’s Office on behalf of the Government party. The Minute is made in the following terms:
MINUTE OF PROPOSED ORDERS TO BE MADE BY CONSENT
“CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT (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 have complied with the requirements of s. 3(1)(b) of the Native Title Act 1993.
3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under s. 38 of the Native Title Act 1993 that the “act” being the grant of Mining Lease 59/748, may be done.”
Legal Principles
Though the native title party may arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit, within the framework of the Act, only the person or persons comprising the applicant are authorised to bring a native title application or deal with matters arising from it (see in particular ss 61(2) and 62A of the Act). Part 2 of Division 3 of the Act, which concerns future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate (in the case of an area where a determination of native title has been made) or a Registered Native Title Claimant (where a native title application has been accepted for registration but not yet determined), (see s 29(2) of the Act). Relevantly, s 253 of the Act defines the Registered Native Title Claimant as ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims in relation to a claim to hold native title in relation to land or waters.’ However, the Tribunal has accepted that the native title party is not each registered native title claimant but the registered native title claimants acting collectively as representatives and agents of the claim group: Granny Smith at [50]-[56]; Monkey Mia at [19]; Mungeranie at [45].
Accordingly, in circumstances where one or more of the persons comprising the applicant are unable or unwilling to execute an agreement of the kind referred to in s 31(1)(b), the Tribunal has regarded itself as entitled to make a determination on the basis that the native title party as a whole consents to the doing of the act, unless there is a credible suggestion that such an approach is not appropriate: see Monkey Mia at [19]; Mungeranie at [63]. In determining whether or not that consent has been properly given, the Tribunal will have regard to all of the circumstances, including whether the agreement has been endorsed by the wider claim group or is of a type to which the claim group has previously consented, and whether the applicant’s failure to give effect to the claim group’s consent was related to the terms of the agreement or the decision-making process adopted by the claim group: see Copperstrike at [30]-[31]. The Tribunal will also have regard to whether the native title party was legally represented or had access to legal advice in the course of negotiations, whether by a Native Title Representative Body (‘NTRB’) or other entity: see Monkey Mia at [19]; Mungeranie at [58].
The inquiry
The relevant extract from the Register of Native Title Claims lists the native title party’s address for service as being care of Julie Lewis, who is also listed as one of the registered claimants. In the course of the Tribunal’s correspondence with parties following the lodgement of the application, it became apparent that the native title party is not currently represented by a NTRB or other legal practitioner, and that its affairs are managed by Ms Lewis. The application was made on the basis that one of the registered claimants had not been willing to enter into a s31(1)(b) agreement in respect of the proposed licence. A similar situation involving the native title party has recently been dealt with by the Tribunal in Venus Metals. Ms Lewis has provided the Tribunal with an affidavit affirmed by her on 9 December 2013, in which she outlines the circumstances which have led to the current application in question. The affidavit has been witnessed, but not by a person authorised to carry out such a role. I note, however, that the Tribunal is not bound by the rules of evidence by virtue of s109(3) of the Act and I accept Ms Lewis’ affidavit on the basis of its probative value and that it is uncontested.
Ms Lewis’ affidavit establishes the following things:
·The native title party has given authority to the registered claimants to negotiate and enter into future act agreements on behalf of the greater claim group.
·The registered claimants meet regularly to discuss the native title party’s future act business matters.
·The person who has refused to sign the agreement has made it clear that he does not intend to enter into any agreement of the kind referred to in s 31(1)(b), for this matter or any other matter.
·The claim group as a whole consent to the grant of the proposed licence on the terms set out in the agreement.
·The grantee party and the native title party negotiated the agreement over a period of nine months, before reaching agreement.
·Decisions of the claim group are made following consultation with senior elders. The most senior member of the claim group is also a member of the applicant group, and has accepted the agreement.
·Ms Lewis was elected by the claim group to be their representative in future act matters.
Findings
Based on the evidence before me, I find that the claim group as a whole consents to the grant of the proposed licence on the terms set out in the agreement. Insofar as one of the persons comprising the applicant has refused to give effect to that consent, I accept that his refusal to do so is entirely unrelated to the merits of the agreement or the decision-making process adopted by the claim group. There is no suggestion that the person refusing to sign the agreement represents any particular interests within the claim group. It is clear that the senior elder of the claim group consents to the agreement and that the native title party has entered into comparable agreements in the past.
In light of these findings, I am satisfied that the native title party, acting collectively, agree to the doing of the proposed act and consent to a determination in the terms sought. There is no credible suggestion that it would be inappropriate to make a determination on that basis.
Determination
By consent, the determination of the Tribunal is that the act, namely the grant of mining lease M59/748 to Karara Mining Limited, may be done.
Raelene Webb QC
President
17 December 2013
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