Johnson Taylor and Others on behalf of Njamal/Western Australia/Atlas Operations Pty Ltd
[2010] NNTTA 80
•16 June 2010
NATIONAL NATIVE TITLE TRIBUNAL
Johnson Taylor and Others on behalf of Njamal/Western Australia/Atlas Operations Pty Ltd, [2010] NNTTA 80 (16 June 2010)
Application No: WF10/9
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
Johnson Taylor and Others on behalf of Njamal (WC99/8) (Applicant/native title party)
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The State of Western Australia (Government party)
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Atlas Operations Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 June 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 – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd, NNTT WF08/12, [2008] NNTTA 35 (20 March 2008), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Representatives of the Ms Maimbo Chilala, Pilbara Native Title Service
native title party: Mr Rainer Mathews, Pilbara Native Title Service
Representative of the
grantee party: Mr Garry Plowright, Atlas Operations Pty Ltd
Representatives of the Ms Paola O’Neill, Department of Mines and Petroleum
Government party: Mr Rod Wahl, State Solicitors Office
REASONS FOR FUTURE ACT DETERMINATION
Background
On 25 February 2009, 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 M45/1179 (the proposed lease) under the Mining Act1978 (WA) to Atlas Operations Pty Ltd (the grantee party).
The native title party in respect of this proceeding is Johnson Taylor, Kevin Allen, Maurice Coppin, Rodney Monaghan, Alice Mitchell, Lorraine Williams, Tony Taylor, Willie Jumbo and Jean Walker on behalf of the Njamal People (WC99/8 – registered from 3 June 1999) (native title party).
The s 29 notice describes the area of the proposed lease as comprising 1734.23 hectares located 66 kilometres westerly of Marble Bar in the Shire of East Pilbara. Based on the s 29 notice the registered claim of the native title party overlapped the proposed lease area by 99.6 per cent. The following registered native title claims also overlapped the proposed lease area by 0.4 per cent with each of these claims overlapping each other to the same extent being: the claim on behalf of the Njamal People #10 (WC00/5 – registered from 7 July 2000); and the claim on behalf of Warrarn #1 (WC95/61 – registered from 10 October 1995).
On 28 May 2010, being a date more than six months after the s 29 notice was given, Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of Njamal (WC99/8) and Njamal 10 (WC00/5) 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 application requested that the future act determination be made by consent.
Subsequent to the original application and following enquiries from the Tribunal, the Government party (on 4 June 2010) provided written confirmation that the grantee party had requested excision of a portion of the proposed lease, such that the proposed lease would no longer encroach on or include land subject to the claims of both Njamal #10 and Warrarn #1. The Government party further provided an amended Quick Appraisal, map and endorsement to satisfy the Tribunal that the grant of this lease will not include land the subject of these claims.
The proposed lease is now described as comprising an area of 1727.32 hectares which is entirely overlapped by the registered claim of the Njamal native title party.
I am satisfied on the basis of the evidence provided by the Government party that the Njamal native title party is the only registered native title claimant that overlaps the proposed lease area and therefore has the right to negotiate pursuant to the Act. The native title rights and interests of Warrarn #1 and Njamal #10 registered claimants will not be affected by the granting of the proposed lease.
On 3 June 2010 the YMAC amended the s 35 application such that the Njamal registered native title claimant is the only native title party with respect to these proceedings.
Accompanying the application was a minute of consent, executed by Ms Maimbo Chilala on behalf of the native title party in the following terms and which was subsequently executed on behalf of the Government and grantee parties:
‘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 Native Title Party and the Grantee Party have 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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease M45/1179 may be done.’
The statutory declaration, dated 3 June 2010, made by Mr Rainer Mathews, Lawyer at YMAC acting for the native title party, which was lodged with the amended application, affirmed execution of a Deed between Atlas Iron Limited and the Njamal Native Title Applicants (‘Njamal Atlas Deed’) as follows:
‘10.I have seen the Deed between Atlas Iron Limited and the Njamal Native Title Applicants (‘Njamal Atlas Deed’) entered into on 5 December 2008. The Njamal Atlas Deed was executed by all members of the applicant following recommendation by the working group and authorisation at a duly convened community meeting.
11.The Njamal Atlas Deed provides for, amongst other things, aboriginal cultural heritage protection, compensation, employment, education, training, contracting opportunities and for the grant of tenure to Atlas Iron Ltd and related bodies corporate as defined in the Corporations Act 2001 (Cth) including, from time to time, the execution of deeds for the grant of mining tenements.
12.We are informed by Mr. Garry Plowright of Atlas Iron that the Grantee Party is a fully owned subsidiary of Atlas Iron Limited.
13.On 25 February 2009, the State of Western Australia issued a notice in accordance with section 29 of the Native Title Act 1993 (Cth) in respect of the proposed future act, bring the grant of the Mining Lease. The Mining Lease application is a ‘Future tenement’ under the Njamal Atlas Deed. The Grantee Party has sent a State Deed to the Native Title Party requesting its execution in accordance with the Njamal Atlas Deed.’
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).
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.
The inquiry findings
On the basis of the information contained in the application, attached affidavit, executed minute, and the consent of the parties I am satisfied that I can adequately determine the matter ‘on the papers’.
Mr Mathews’ statutory declaration attests that all members of the native title party, except Mr Maurice Coppin, have executed the State Deed with respect of the proposed lease (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act between all three negotiation parties). Mr Mathews says that Mr Coppin has refused to sign the State Deed for reasons unrelated to the doing of the act.
In previous matters involving the native title party the Tribunal has made a consent determination despite the refusal of one of the persons named as the applicant for native title (and registered native title claimant) to sign a State Deed (see for example Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd, NNTT WF08/12, [2008] NNTTA 35 (20 March 2008), Hon C J Sumner at [9]) when satisfied that the native title party collectively consents to the determination. Based on the evidence provided I am satisfied that the native title party consents to the determination in the terms sought and further note that the Tribunal is entitled to accept the evidence of the YMAC legal representative on the consent given by the native title party when there is nothing before me to suggest the contrary. YMAC as the recognised representative body under the Act has responsibilities to protect the interests of the native title holders.
Determination
By consent, the determination of the Tribunal is that the act, namely the grant of mining lease M45/1179 to Atlas Operations Pty Ltd, may be done.
Hon C J Sumner
Deputy President
16 June 2010
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