Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd
[2008] NNTTA 35
•20 March 2008
NATIONAL NATIVE TITLE TRIBUNAL
Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd, [2008] NNTTA 35 (20 March 2008)
Application No: WF08/12
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
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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M R Millwood Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 20 March 2008
Catchwords: Native title – future act – application for determination for the grant of mining leases – named applicant not signed agreements – decision making process – 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, 66B, 109, 151(2),
Cases:Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, NNTT WF06/6, [2006] NNTTA 26 (24 March 2006), Hon C J Sumner
BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing Date: N/A
Counsel for the Mr Rodney Nichole
native title party: Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Representative of the
grantee party: Mr Murray Millwood
Representatives of the Mr Rod Wahl, State Solicitors Office
Government party: Ms Paola O’Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the dates below the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the following future acts, namely the grant of mining leases (‘the proposed lease’) under the Mining Act 1978 (WA) to M R Millwood Pty Ltd (‘the grantee party’):
M45/1025 – notified on 30 June 2004
M45/1123 – notified on 12 September 2007
The proposed leases are entirely overlapped by the registered native title claim of the Njamal People (WC99/8 - registered from 3 June 1999). The size and location of the proposed leases are as follows:
M45/1025 - 9.1 hectares, and M451123 – 29.56 hectares, both located one kilometre easterly of Marble Bar in the Shire of East Pilbara
On 17 August 2007 the Njamal People’s claim was amended in the Federal Court pursuant to s 66B of the Act. Those persons jointly comprising the applicant for the claim and therefore the native title party with respect to these proceedings are now:
Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Rodney Monaghan, Mr Teddy Allen, Ms Alice Mitchell, name withheld for cultural reasons, Mr Tony Taylor, Mr Willie Jumbo and Ms Jean Walker on behalf of Njamal.
On 14 February 2008, being a date more than six months after the s 29 notices were given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. Paragraph 10 of the application states that the grantee and native title parties have reached agreement regarding the doing of the proposed future acts but that the health of one named applicant precluded execution of a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). The application further states that the Pilbara Native Title Service (‘PNTS’) is satisfied that those persons collectively comprising the applicant for the Njamal native title claim have consented to a determination that the acts may be done.
Appended to the application is a minute of consent determination in the following terms executed by Mr Rodney Nichole (Senior Legal Officer employed by Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’)) on behalf of the native title party, and subsequently executed by Mr M R Millwood, the grantee party, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT TO 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 Leases 45/1025 and 45/1123 may be done.’
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. YMBBMAC is the recognised representative body under the Act for the native title party and has represented them in these proceedings via their Pilbara region service arm, the PNTS. 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
The basis on which PNTS requests a determination by consent and on which it believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavit of Rodney Frances Nichole, affirmed 13 February 2008. The relevant paragraphs of Mr Nichole’s deposition are set out below:
‘1.I am employed as a Senior Legal Officer by the YMBBMAC and I have the care and conduct of this affair on behalf of the Native Title Party.
…
8.In accordance with Part 2, Division 3, Subdivision P of the Native Title Act negotiations including an agreement in respect of the grant of the tenements has been conducted between the Government Party, the Grantee Party and the Native Title Party.
9.An Agreement was reached in principle at duly convened meeting between the Grantee and the Native Title Party at a working group meeting on 12 April 2007. The Njamal Working Party consists of 12 members of the community who are duly elected representatives with authority to make decisions and to pass resolutions by a majority of a quorum of at least 7 members present at a meeting.
…
11.The terms and conditions of the Agreement were confirmed and resolved subject to a letter being sent to the Community at a duly convened joint meeting of the Native Title Parties Working Group and the Njamal Trust Committee on 14 November 2007 and again at a General Meeting of the Njamal Trust on 4 December 2007.
12.A letter was sent to all members of the Community on 17 January 2008 …
13.I am verily advised by Rainer Matthews a Legal Officer of PNTS in Port Hedland that one member of the community responded by phone to the letter and agreed that the Mining Deed should proceed after making some general inquiries about the Grantee Partie’s ([sic] mining activities, native title law and the mining law.
…
15.I am verily advised by Rainer Matthews that he experienced logistical difficulties in getting all the Applicants to sign the State Deed and the Ancillary Agreement and that the only outstanding signature on both documents is that of Maurice Coppin who is very unwell recently in Yandeyarra and apparently is unable to sign the documents.
16.I am readily advised by Rainer Matthews that he has no reasons to believe that the said Maurice Coppin would otherwise object to signing the document.
17.Due to logistical difficulties as a result of time, current workloads, distances and manpower and equipment resources PNTS have been unable to secure the outstanding signature of Maurice Coppin.
18.I verily believe that the Native title Party have consented to the grant of the tenements and accordingly to a Consent Determination.’
On the basis of the application and the affidavit evidence I am satisfied that it is appropriate to make a determination on the papers pursuant to s 151(2) of the Act (ie: without recourse to a hearing) in this matter. All parties have supported this approach.
In previous matters involving the Njamal People (eg. BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner (‘BHP’)) it was not possible to obtain the signatures of all the persons named as part of the applicant to a State Deed because some were deceased, and one of them (Mr Eddie McPhee) refused to sign. In another matter there were logistical difficulties in locating named applicants that precluded execution of the State Deed (Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, NNTT WF06/6, [2006] NNTTA 26 (24 March 2006), Hon C J Sumner). However, since those determinations were made the Njamal applicant for native title has been reconstituted and some of the issues which arose in the previous matters are no longer applicable (eg. Mr Eddie McPhee is no longer a named applicant). Nonetheless, it is apparent in this matter that the logistical difficulties of travelling to Yandeyarra to obtain the signature of Mr Maurice Coppin, who is said to be unwell and presumably unable to travel himself, are considerable. I also observe that the Tribunal has been provided with the death certificate of one named applicant who has also not signed the State Deed or ancillary agreement.
I adopt my findings in BHP at para [20] in relation to the responsibilities of the recognised representative body for the region and the Tribunal’s own responsibilities under s 109 of the Act. On the evidence provided I am satisfied that the native title party has consented to the grant of the proposed leases.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of mining leases M45/1025 and M45/1123 to M R Millwood Pty Ltd, may be done.
Hon C J Sumner
Deputy President
20 March 2008
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