JAB Management Pty Ltd/Ben Ward and Others on behalf of Miriuwung Gajerrong/Western Australia
[2005] NNTTA 46
•13 July 2005
NATIONAL NATIVE TITLE TRIBUNAL
JAB Management Pty Ltd/Ben Ward and Others on behalf of Miriuwung Gajerrong/Western Australia, [2005] NNTTA 46 (13 July 2005)
Application No: WF05/6
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
JAB Management Pty Ltd (grantee party/Applicant)
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Ben Ward and Others on behalf of Miriuwung Gajerrong (WC94/2) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 13 July 2005
Catchwords: Native title – future act – application for determination for the grant of mining lease – consent determination that the act may be done
Legislation:Native Title Act 1993 (Cth), ss 31, 35, 38, 55-57, 109,190(4), 253
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 12 July 2005
Representative of
the native title party: Ms Olivia McMahon, Kimberley Land Council
Counsel for the
native title party: Ms Judith Bornstein, Kimberley Land Council
Representative of the Mr Mick Guerinoni and Ms Rhonda Guerinoni, JAB Management
grantee party: Pty Ltd
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 29 January 2003, 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 M80/530 (‘the proposed lease’) under the Mining Act 1978 (WA) to JAB Management Pty Ltd (‘the grantee party’).
The native title party in respect of these proceedings is:
Ben Ward, John Toby, Jimmy Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Joe Lissadell, Chocolate Thomas and Peter Newry on behalf of the Miriuwung Gajerrong People (WC94/2 – registered from 26 May 1994).
On 9 December 2003 the Miriuwung and Gajerrong People were determined by the Federal Court to hold native title in the subject area. However, to date no native title body corporate has been registered (as defined by s 253 of the Act). The determination was made in this way despite s 55 of the Act which provides that if an approved determination that native title exists is made then ‘the Federal Court must, at the same time as it makes the determination, make the determinations in section 56 (which deals with holding the native title on trust) or 57 (which deals with non-trust functions of prescribed bodies corporate).’ Section 190(4) of the Act deals with the treatment of entries on the Register of Native Title Claims where the Registrar is notified that a determination of native title has been made. Where a positive determination of native title has been made as in this case the obligation imposed on the Registrar to amend the Register of Native Title Claims is as follows:
‘Entries removed or amended after determination, decision, or withdrawal
(4) If:
(a)the Registrar is notified under section 189 or 189A of a decision or determination covering a claim …
the Registrar must, as soon as practicable:
…
(e)in any other case – amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised.
Note:If an application has been finalised in relation to part of the area claimed, the Register would be amended to remove references to that area. If the application has been finalised by an approved determination of native title, that determination would be entered on the National Native Title Register.’
The Registrar has decided that the native title determination application is not finalised until a registered native title body corporate is established and until this happens the registered native title claimants remain on the Register and continue with the status of a native title party with the procedural rights under the right to negotiate provisions (Part 2, Division 3, Subdivision P). Mr Rod Wahl, State Solicitor’s Office on behalf of the Government party, concurred with this view.
The Tribunal notes that registered native title claimant group Ben Ward, Kim Aldus, Frank Chulung, Sheba Dignari, Jeff Janama, Maggie John, Chocolate Thomas, Danny Wallace, Carol Hapke, Nancy Dilyai, Pamela Simon, Jerry Moore and Paddy Carlton on behalf of Miriuwung Gajerrong #4 (WC04/4) also overlaps the proposed lease by 1.9%. However, this native title claim was not accepted for registration until 9 July 2004, some fifteen months after the s 29 closing date.
On 24 June 2005, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38.
The s 35 determination application advises that a consent determination is sought and attaches a minute of a consent determination in the following terms which has since been executed in counterparts by Ms Judith Bornstein (Kimberley Land Council, (‘the KLC’)), Mr Mick Guerinoni, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the native title party, grantee party and Government party respectively:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
The Government Party, the Native Title Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of APPLICATION FOR MINING LEASE 80/530 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 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).
Background facts
Paragraph 10 of the s 35 application advises that the parties have a comprehensive agreement in place in relation to any exploration or mining activity in the subject area. The application further states that “logistical reasons” preclude the execution of a State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and each of the native title parties)). Because each of the persons comprising the applicant, registered native title claimant and Miriuwung Gajerrong native title party has not signed the State Deed, this matter cannot be concluded by way of a s 31 agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
On 11 July 2005 the Tribunal received email correspondence in the following terms from Ms Judith Bornstein, Principal Legal Officer with the KLC. This correspondence expands on the logistical reasons cited for the failure to execute a State Deed:
‘The Kimberly Land Council respectfully requests the Tribunal to make a Consent Determination in the form agreed by all parties, a copy of which has been forwarded to the Tribunal.
At the time that Agreement was reached on the matter, the resources of the Kimberley Land Council were fully committed to the Ord Stage 2 Global Negotiations (“The Global Negotiations”).
As a consequence, the Kimberly Land Council had not resources available for the purposes of organising and arranging for the signing of a State deed, particularly at the material time in or about June when the Global Negotiations were at a crucial stage.
In accordance with the law and custom of the Miriuwung Gajerrong Native Title Holders, the Kimberly Land Council is instructed to sign the Consent Determination.
The Kimberley Land Council held a site a meeting at the lease area with senior men on the 26 May 2005, during which the proposed project was discussed. All senior men confirmed that there were no site issues.
At a subsequent meeting with senior men on 31 May 2005, The Kimberly Land Council reported on the terms of the Agreement. In accordance with traditional law and custom, all senior men speaking for the Native Title Holders confirmed that they were happy for the grant of the mining tenement to proceed and for the Kimberly Land Council to execute the mining Agreement on behalf of Miriuwung Gajerrong.’
As a consequence of negotiations between the native title party and the grantee party (including s 31 mediation assistance provided by the Tribunal) an Ancillary Agreement regarding the grant of the proposed lease and heritage protection in the subject area was executed by the KLC on behalf of the native title party, and JAB Management Pty Ltd on 12 June 2005.
The hearing
On 12 July 2005 the Tribunal conducted a hearing at which the representatives of the parties confirmed their consent to the future act determination in the terms sought. Mr Mick Guerinoni, representing the grantee party, advised that the mining lease was to be used for the purpose of sand mining and that similar mining was already taking place on granted leases in the vicinity. Ms Bornstein, counsel for the native title party, confirmed the logistical reasons precluding the execution of a State Deed and further advised that according to a specialist legal consultant employed by the KLC (Ms Julie Melbourne) none of the senior men authorised to make decisions on behalf of Miriuwung Gajerrong had dissented to the proposed agreement.
As the designated representative body under the Act, the KLC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the KLC’s representatives on whether the appropriate consent has been given by the native title party. I am satisfied that the claimant group as a whole consents to the determination sought. Ms Bornstein, counsel for the native title party, confirmed that she has been properly instructed to that effect and that the decision making process was in accordance with traditional law and custom.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Lease M80/530 to JAB Management Pty Ltd, may be done.
Hon C J Sumner
Deputy President
13 July 2005
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