Johnson Taylor and Others on behalf of Njamal/John Gelmi/Western Australia
[2010] NNTTA 72
•31 May 2010
NATIONAL NATIVE TITLE TRIBUNAL
Johnson Taylor and Others on behalf of Njamal/John Gelmi/Western Australia, [2010] NNTTA 72 (31 May 2010)
Application No: WF10/8
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into a Future Act Determination Application
Johnson Taylor and Others on behalf of Njamal (WC99/8) (Applicant/native title party)
- and -
John Gelmi (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 31 May 2010
Catchwords: Native title – future act – application for determination for the grant of mining lease – named applicant not signed agreement – native title party as a whole consent to the determination – determination that the act may be done with conditions.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 39, 41(3), 203B, 203BC
Mining Act 1978 (WA)
Cases:BHP Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, WF05/2, [2005] NNTTA 40 (7 June 2005), Hon CJ Sumner
Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner
Evans v Western Australia (1997) 77 FCR 193
Minister of Mines (WA) v Evans & Others [1998] NNTTA 5; (1998) 163 FLR 274
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner
Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People and Carlene Sceghi and Others on behalf of Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 (8 July 2002), Hon C J Sumner
Re Koara People (1996) 132 FLR 73
Hearing date: 13 May 2010
Representatives of the Mr Colin McKellar, Pilbara Native Title Service
native title party: Mr Rainer Mathews, Pilbara Native Title Service
Grantee party: Mr John Gelmi
Representative of the Mr David Crabtree, Department of Mines and Petroleum
Government party: Mr Rod Wahl, State Solicitors Office
REASONS FOR FUTURE ACT DETERMINATION
Background
On 10 October 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 M46/260 under the Mining Act 1978 (WA) to Mr John Gelmi.
The proposed lease comprises an area of 100.1 hectares and is located 40 kilometres east of Nullagine in the Shire of East Pilbara.
The native title party with respect to these proceedings, and the extent to which its registered claim overlaps the proposed lease, is as follows:
Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Rodney Monaghan, Ms Alice Mitchell, Ms Lorraine Williams, Mr Tony Taylor, Mr Willie Jumbo and Ms Jean Walker (100% overlap).
On 30 April 2010, being a date more than six months after the s 29 notice was given, Pilbara Native Title Service (on behalf of 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 lease. The native title party asserted that agreement had been reached regarding the doing of the acts with the grantee party. One of the named native title applicants has not executed the State Deed (agreement prepared to satisfy s 31(1)(b) of the Act between all negotiation parties) or the Deed between John Gelmi and the Njamal Native Title Applicants (“Ancillary Agreement”). The applicant requested that, in view of the agreement reached, the future act determination be made by consent.
Accompanying the application was a minute of consent, executed by Mr Colin McKellar on behalf of the native title party in the following terms:
‘MINUTE OF PROPOSED 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 (Cth).
2. The Government Party, the Native Title Party and the Grantee Party have complied with the requirements of s.31(1)(b) of the Native Title Act 1993 (Cth).
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 (Cth) that the “act” being the grant of Mining Lease M46/260 may be done.
4. The Native Title Party and the Grantee Party agree to be bound by the terms of the incompletely executed agreement between the Njamal People and John Gelmi attached to this minute.’
The Tribunal received a signed counterpart of the minute of consent from the grantee party on 30 April 2010 signed by Mr Gelmi. The State provided a signed counterpart of the minute of consent on 10 May 2010, signed by Mr Jeff O’Halloran on behalf of the State.
The Tribunal also received a copy of the Ancillary Agreement with the application. That copy had only Mr Gelmi’s signature, and the representative for the native title party explained that PNTS’ Community Liaison Officer was currently obtaining the signatures of the native title party applicants, and would provide a signed copy of the Ancillary Agreement and the State Deed once those signatures were obtained. On 8 May 2010, Mr McKellar (see para [10] below) provided a copy of the State Deed to the Tribunal that contained the signatures of all the native title party applicants except for Mr Coppin, who has refused to sign the State Deed or the Ancillary Agreement. On 26 May 2010, Mr McKellar (see para [10] below) provided a copy of the Ancillary Agreement to the Tribunal that contained the signatures of all the native title party applicants except for Mr Coppin, Mr Taylor and Mr Jumbo.
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 (and has heard – refer para [13] below) 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 Yamatji Marlpa Aboriginal Corporation (‘YMAC’) is the designated representative body under the Act for the native title party and has represented them in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service (‘PNTS’).
The affidavit of Colin Alec McKellar, solicitor with the PNTS, was provided in support of the application and affirmed by him on 28 April 2010. The affidavit contains detailed information about the processes undertaken to obtain native title party consent to entering into the Ancillary Agreement with Mr Gelmi.
Mr McKellar deposes that, at the Njamal community meeting on 10 December 2009, the terms of the Ancillary Agreement were presented to the Njamal community. He further deposes that the Njamal community agreed with the terms of the Ancillary Agreement and passed a resolution authorising the signing of the Ancillary Agreement and a State Deed.
Mr McKellar also explains in his affidavit that there are difficulties in obtaining the signature of Mr Coppin to the Ancillary Agreement and the State Deed, as Mr Coppin has been unwilling to sign the Ancillary Agreement and the State Deed for reasons unrelated to the agreement between the parties.
The inquiry
On 13 May 2010, the Tribunal conducted a preliminary conference attended by the representatives of the parties. At that conference, Mr Rainer Mathews, a solicitor with the PNTS and a representative of the native title party, confirmed the information Mr McKellar deposed to as to the approval process of the Njamal community in relation the signing of the Ancillary Agreement and the State Deed. Mr Mathews also provided further information that satisfied me that Mr Coppin’s refusal to sign the Ancillary Agreement and the State Deed is due to factors unrelated to the agreement between the native title party and the grantee party, and that the Njamal community have approved the signing of the Ancillary Agreement and the State Deed.
At the preliminary conference, I indicated my view that it was appropriate to make the consent determination in terms that the native title party and the grantee party agree to be bound to the terms of the Ancillary Agreement between the native title party and the grantee party as if it was fully executed and the native title party will use its best endeavours to secure full execution of the Ancillary Agreement. This approach was adopted by Deputy President Sumner in BHP Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, [2005] NNTTA 40 (7 June 2005), Hon CJ Sumner (“BHP Billiton”).
The native title party and the grantee party confirmed their consent to the determination in the terms I outlined, with the State neither opposing nor supporting my proposal on the basis that it was not a party to the Ancillary Agreement.
Findings with respect to the Njamal native title party
In light of the information provided in the affidavit of Mr McKellar, and the information provided at the preliminary conference on 13 May 2010 by Mr Mathews, I am satisfied that the Njamal native title party has consented to the determination with conditions in accordance with a process of the kind referred to in s 203BC(2)(b) of the Act.
The situation is not dissimilar to that in Monkey Mia where there was a refusal of 2 of 38 named applicants to sign the relevant agreement and other similar matters where the Tribunal considered it was appropriate to make a consent determination. The Tribunal has held that a native title party is not each person named as part of the applicant and registered native title claimant but is all those persons acting jointly (Monkey Mia at [19]; Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner at [13]-[37]). Individuals named as part of the applicant must act in accordance with the instructions of the claim group as a whole.
The Ancillary Agreement deals with many of the issues which the Tribunal has previously included as conditions of a determination (e.g. Minister of Mines (WA) v Evans & Others [1998] NNTTA 5; (1998) 163 FLR 274 at 315-332) and which are customarily included in agreements of this kind. It deals with a number of the matters in s 39(1)(a) of the Act which the Tribunal is required to take into account in making a determination. It provides, inter alia, for an ongoing process of consultation between the native title and grantee parties in relation to the impact of mining operations on native title rights and interests and about employment, training and business opportunities; compensation; funding for managing impact on Aboriginal heritage and the environment; and access to areas of the mining leases subject to operational and safety constraints. The existence of this agreement confirms that a consent determination is appropriate.
The parties did not seek to make the actual terms of the Ancillary Agreement a condition of the Tribunal’s determination. The Tribunal has a broad discretion to make a determination by reference to the criteria in s 39 of the Act and its scope and purpose (Evans v Western Australia (1997) 77 FCR 193 at 213; Re Koara People (1996) 132 FLR 73 at 93). The power is limited by s 38(2) which prohibits a condition that payments be made to a native title party based on the amount of profits made, income derived or things produced. Further, the Tribunal cannot make an actual determination of compensation, but can only make a condition that compensation be paid into trust pending a final determination (s 41(3)). In this case no specific conditions of this kind are being sought and the determination agreed between the parties is similar to those previously made (Monkey Mia (at [23]); Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People and Carlene Sceghi and Others on behalf of Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 (8 July 2002), Hon C J Sumner (at [12]); Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner (at [9]); BHP Billiton (at [16])). Accordingly, a determination in the terms sought, being that the grantee party and the native title party be bound to the Ancillary Agreement as though it were fully executed and that the native title party use its best endeavours to secure full execution of the Ancillary Agreement, is appropriate.
Determination
By consent, the determination of the Tribunal is that the act, namely, the grant of Mining Lease 46/260 to Mr John Gelmi, can be done subsequent to the following condition to be complied with by the grantee party and native title party:
(a)The native title party (subject to condition (b)) is bound by the Deed between John Gelmi and the Njamal Native Title Applicants (“Ancillary Agreement”) as if it had been executed by all parties (including by Maurice Coppin) on and from the date of this consent determination and any reference in the Ancillary Agreement to the date of the execution of the agreement by all parties, or to the “Commencement Date”, is to be read as if they were a reference to the date of this consent determination.
(b)The grantee party (subject to condition (a)) is bound by the Ancillary Agreement as if it had been executed by all parties (including by Maurice Coppin) on the date of this consent determination and any reference in the Ancillary Agreement to the date of the execution of the agreement by all parties, or to the “Commencement Date”, is to be read as if they were a reference to the date of this consent determination.
(c)The native title party must use its best endeavours to procure the full execution of the Ancillary Agreement by the native title party as soon as possible after the date of this consent determination.
Neville MacPherson
Member
31 May 2010
0
8
0