Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velickovic and Others on behalf of the Widji.. - [2004] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velickovic and Others on behalf of the Widji People/Bryan William Alexander/Western Australia, [2004] NNTTA 77 (2 September 2004)

Application No: WF04/18

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

Bryan William Alexander (Applicant/grantee party)

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Linda Champion and Others on behalf of the Central West Goldfields People (WC99/29) (Central West Goldfields native title party)

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Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People (WC99/9) (Maduwongga native title party)

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Leonne Velickovic and Others on behalf of the Widji People (WC98/27) (Widji 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: 2 September 2004

Catchwords: Native title – future act – application for determination for the grant of a mining lease – consent determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38

Cases:Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner
Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner
Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner

Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004) Hon C J Sumner
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

Hearing date: 30 August 2004

Representative of the
Central West Goldfields
native title party: Ms Elizabeth Sambo

Representative of the
Widji native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the
Maduwongga native
title party: John W Strickland Jnr

Representative of the
grantee party: Mr Bryan William Alexander

Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

On 6 February 2002, 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 M24/867 (‘the Mining Lease’), covering 4.84 hectares and situated 30 kilometres north-westerly of Kalgoorlie in the Shire of Kalgoorlie-Boulder City under the Mining Act 1978 (WA) to Bryan William Alexander (‘the grantee party’).
The native title parties in these proceedings are:
·    Gary Dimer, Leonne Dale Velickovic, Lisa Bonney, Mary Anne Velickovic and Olivia Dimer on behalf of the Widji People (WC98/27) (‘the Widji native title party’);
·    Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People (WC99/9) (‘the Maduwongga native title party’); and
·    Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper on behalf of the Central West Goldfields People (WC99/29) (‘the Central West Goldfields native title party’).
On 11 August 2004, being a date more than six months after the s 29 notice was given Bryan William Alexander (the grantee party) made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the Mining Lease. The applicant sought a determination that the act be done by consent.
The National Native Title Tribunal (‘the Tribunal’) has power to make a determination with the consent of the parties. While 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 (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361), the absence of legal representation does not preclude a consent determination being made provided the Tribunal is satisfied that the native title party has properly consented. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate

Background facts

As a consequence of negotiations between the parties including Tribunal mediation assistance pursuant to s 31(3) of the Act the following facts are established.

Each of the persons comprising the applicant, registered native title claimant and Widji native title party (WC98/27) have signed a State Deed agreeing to the grant of the Mining Lease to Bryan William Alexander. This Deed has also been signed by the other negotiation parties (the Government and grantee party) and was lodged with the Tribunal on 5 March 2004.
Both the persons comprising the applicant, registered native title claimant and Maduwongga native title party (WC99/9) have signed a State Deed agreeing to the grant of the Mining Lease to Bryan William Alexander. This Deed has also been signed by the other negotiation parties (the Government and grantee party) and was lodged with the Tribunal on 15 April 2004.
Seven of the persons comprising the applicant, registered native title claimant and Central West Goldfields native title party (WC99/29), namely, Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson and Victor Cooper, have signed a Production Agreement with the grantee party for the grant of the Mining Lease (‘the Ancillary Agreement’) and a State Deed.
One of the persons comprising part of the applicant and the Central West Goldfields native title party (Sue Wyatt) declined to sign the Ancillary Agreement or State Deed.

Because Ms Wyatt has not signed the 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)) this matter cannot be concluded by way of a s 31 agreement. The State Deeds signed by the Government party, grantee party and Widji and Maduwongga native title parties, even though lodged with the Tribunal as required by s 41A(1)(a) of the Act, do not on their own comprise an agreement of the kind mentioned in para 31(1)(b) of the Act as such an agreement must be between the Government party, grantee party and each native title party. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.

Findings relating to the Widji native title party

On the basis that the Widji native title party has executed a State Deed permitting the grant of the Mining Lease and their representative, Mr Jerome Frewen, has advised that the Widji native title party consent to a determination that the future act may be done, I find that the Widji native title party consent to such a determination.

Findings relating to the Maduwongga native title party

On the basis that the Maduwongga native title party has executed a State Deed permitting the grant of the Mining Lease and that a Tribunal case manager contacted both a named applicant, Ms Marjorie Strickland, and the Maduwongga representative, Mr John Strickland, who each confirmed that the Maduwongga native title party consented to a determination that the act may be done, I find that the Maduwongga native title party consent to such a determination.

Findings in relation the Central West Goldfields native title party

On 30 August 2004, the Tribunal conducted a hearing. Ms Elizabeth Sambo, represented the Central West Goldfields native title party, Mr Bryan Alexander represented the grantee party and Mr Rod Wahl and Mr David Crabtree appeared for the Government party. At the hearing these persons confirmed their consent to the future act determination in the terms sought. Ms Sue Wyatt was invited to participate in the hearing but was unable to do so. In a telephone conversation with the Tribunal’s Case Manager (Ms Sara Burke) on 25 August 2004 she advised that she would agree to a consent determination provided all the other persons named as applicant (including Victor Cooper) had signed the State Deed and Ancillary Agreement.
The Tribunal has before it a minute of a consent determination signed by Elizabeth Sambo, Bryan Alexander and Jeff O’Halloran on behalf of the Central West Goldfields native title party, grantee party and Government party respectively. The Minute is expressed in the following terms:

‘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 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 Lease Application 24/867 may be done.’

The split between persons named as part of the Central West Goldfields native title party was apparent in several previous matters before the Tribunal (Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner and Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004), Hon C J Sumner). In those matters the Tribunal pointed out that a native title party was all the named applicants (or more accurately all the persons named as part of the applicant) acting jointly and not each individual named applicant. This view has also been confirmed in 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. Despite the position that an individual person named as part of an applicant for native title is not a party in these proceedings and entitled to be separately represented, the Tribunal informed Ms Wyatt of the hearing and provided her with the opportunity to make submissions.
My finding is that on the basis of the evidence referred to above the claim group as a whole consent to the determination. Seven of the eight persons named as the applicant have signed the Ancillary Agreement and State Deed thereby confirming that they consider the Agreement has the support of the claimant group. Ms Wyatt is the only named applicant who has not signed but for the reasons explained in the cases cited above she is not a native title party and she has no standing on her own to oppose the determination. This situation would have provided sufficient basis (as it did in WF03/16 and WF03/17, and WF04/4) for a determination with the consent of the native title party even if Ms Wyatt opposed it. In this case, however, she has indicated that she consents to the determination. I have also sighted the Ancillary Agreement and State Deed and am satisfied that the agreements deal with some issues which are customarily found in agreements permitting the grant of mining leases, such as compensation and environmental and heritage protection.. The determination sought does not include any conditions reflecting the terms of the Ancillary Agreement and hence it is not necessary for me to be satisfied that any conditions are within the power of the Tribunal to impose (Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner at [6]; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner at [6]-[8]). I am satisfied that a consent determination is appropriate.

Determination