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 on behalf of the Widji People/Siberia..

[2004] NNTTA 26

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 on behalf of the Widji People/Siberia Mining Corporation Ltd/Western Australia, [2004] NNTTA 26 (13 April 2004)

Application No:         WF04/8

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

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

and

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

and

Leonne Velickovic on behalf of the Widji People (WC98/27) (Widji native title party)

- and -

Siberia Mining Corporation Ltd (Grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  13 April 2004

Catchwords:  Native title – future act – application for determination for the grant of mining lease – split in claimant group – native title party as a whole consents to a determination – consent determination that the act may be done.

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

Mining Act 1978 (WA), s 49(3)

Acts Interpretation Act 1901 (Cth), ss 22(1), 36(1)

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 March 2004

Representative of the          Ms Elizabeth Sambo
Central West Goldfields
Native Title party

Representative of the
Grantee party:  Mr Richard Hill, Siberia Mining Corporation Limited

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

Background

1. On 24 September 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 M24/633 covering 42 hectares and situated 57 kilometres southerly of Menzies (‘the Mining Lease’) under the Mining Act 1978 (WA) to Solbec Pharmaceuticals Ltd.

2. A letter from Solbec Pharmaceuticals to the Department of Industry and Resources dated 10 September 2003 states that:

   ‘Solbec has recently agreed to sell M24/633 (and the underlying Prospecting Licence P24/3061) to Siberia Mining Corporation Limited (SMC) and are in the process of formalizing the agreement and transferring the tenure.  In the interim we are happy for SMC to manage these tenements, including all native title matters’

3. Section 49(3) of the Mining Act 1978 (WA) allows the transfer of a mining lease from one holder to another pre-grant if there is an underlying prospecting licence, already granted, which is also being transferred. The Mining Lease has now been legally transferred as proposed thus making Siberia Mining Corporation Ltd (‘Siberia’) the grantee party.

4. The native title parties in these proceedings are:

   ·    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’).

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

   ·    Gary Dimer, Leonne Dale Velickovic, Lisa Bonney, Mary Anne Velickovic and Oliver Dimer on behalf of the Widji People (WC98/27) (‘the Widji native title party’)

The making of the s 35 application

1. On 24 March 2004 Linda Champion, on behalf of the Central West Goldfields native title party purported to make an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the Mining Lease. Form 5 prescribed under the Act was used and except for one issue could have been accepted by the Tribunal as provided for under s 77 of the Act. Section 35(1) of the Act requires that ‘at least six months has passed since the notification day’ before a s 35 application can be lodged. An issue arose whether on 24 March 2004 (the date of lodgement) six months had passed since the 24 September 2004 (the s 29 notification day). Proper compliance with the Act in this respect is essential for the Tribunal to have jurisdiction to conduct an inquiry and make a determination.

2. Submissions were sought from the parties. The Government party agreed with the Tribunal’s preliminary view that the requisite six months had not passed on 24 March 2004 and submitted that it would not have done so until 26 March 2004. My finding is that the requisite six months had not passed on 24 March but had done so on 25 March 2004, such that an application lodged on or after that date would be validly made. The Government party’s submission did not contain any detailed analysis of why it considered the 26 March to be the proper date. The Tribunal considers that on a plain reading of s 35(1) of the Act it is clear that the six months must have elapsed ‘since’ the notification day which means the notification day itself is to be ignored for the purpose of the calculation. This interpretation is confirmed by the Acts Interpretation Act 1901 (Cth) which provides that unless the contrary intention appears:

• a calendar month (or month) is a period commencing at the beginning of a day of a particular month and ending immediately before the beginning of the corresponding day of the next month (s 22(1)); and

• any period of time prescribed or allowed in an Act dating from a given day, act or event shall be reckoned exclusive of such day (s 36(1)).

Based on these aids to interpretation it is the Tribunal’s view that the six months period commences on the day after the notification day (i.e. on 25 September 2004) and by virtue of s 22(1) of the Acts Interpretation Act concludes on 24 March 2004, which means that six months has ‘passed’ (i.e. elapsed) since ‘the notification day’ on 25 March 2004. This period must expire before the application can be lodged. As six months had not passed since the notification day, the Tribunal did not accept the application and requested a new one be lodged. By letter dated 31 March 2004 Linda Champion on behalf of the Central West Goldfields native title claimants withdrew the s 35 application made on 24 March 2004 and remade it.

1. The Central West Goldfields native title party seeks 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 for the native title party 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 to negotiations

1. Since the s 29 notice of 24 September 2003 the grantee party has been in negotiation with the native title parties with a view to reaching agreement for the grant of the Mining Lease. As a consequence of those negotiations the following facts are established:

• 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 Mining Lease M24/633 to Siberia.  This Deed has also been signed by the other negotiation parties (the Government and grantee parties) and lodged with the Tribunal.

• All 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 Mining Lease M24/633 to Siberia.  This Deed has also been signed by the other negotiation parties (the Government and grantee parties) and lodged with the Tribunal.

• 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 Regional Agreement (‘the Ancillary Agreement’) with Siberia for the grant of the Mining Lease (and other mining leases including those the subject of a previous determination in 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) and a State Deed.

• One of the persons comprising part of the applicant and the Central West Goldfields native title party (Sue Wyatt) has declined to sign the Ancillary Agreement or the State Deed.

1. 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 agreement. The State Deeds signed by the Government party, grantee party, Widji native title party and Maduwongga native title party, 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 Maduwongga and Widji native title parties

1. Because the Maduwongga and Widji native title parties have executed individual State Deeds which have been lodged with the Tribunal, the Maduwongga and Widji native title parties played no active part in these proceedings.  Having sighted the State Deeds I am satisfied that the Maduwongga and Widji native title parties are not opposed to the grant of the Mining Lease.

Findings in relation the Central West Goldfields native title party

1. On 30 March 2004, the Tribunal conducted a hearing. Ms Elizabeth Sambo, represented the Central West Goldfields native title party, Mr Richard Hill, Secretary of Siberia, 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. 

2. The Tribunal has before it a minute of a consent determination signed by representatives of the Central West Goldfields native title party, grantee party and Government party.  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 24/633 may be done.’

1. In addition there are five separate documents in identical terms dated 16 February 2004 signed respectively by Elizabeth Sambo, Linda Champion, Dennis Sambo, Carlene Sceghi and Nancy Wilson in which they confirm that they consent to the Tribunal making a determination permitting the grant of five mining leases including M24/633 despite the refusal of Sue Wyatt and Victor Cooper to sign the State Deed.  Since these documents were signed Victor Cooper has signed the State Deed.

2. The split between persons named as part of the Central West Goldfields native title party was apparent in a previous matter 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). In that matter 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 recently 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 this strict position at law the Tribunal informed Ms Wyatt of the hearing and permitted her to make submissions.

3. In 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), another matter in which the split in the Central West Goldfields claimant group was apparent Ms Wyatt said she refused to sign the State Deed because it was stated in the Ancillary Agreement that the agreement had the full support and authority of the whole Central West claimant group, something which she did not believe to be the case. Ms Elizabeth Sambo’s response was that the persons named as the applicant represented families who were part of the claim group and were authorised to make decisions about future acts. She also pointed out that Mr Cooper was Ms Wyatt’s brother thus covering authorisation from her family group.

4. At the hearing of this matter Ms Wyatt made similar submissions, said that she did not consent to the determination sought and sought extra time to enable the Central West Goldfields to consider the issue at a community meeting of the whole group.  Following the hearing the Tribunal gave Ms Wyatt an opportunity to provide further submissions on the issues raised by her.  No formal submission was received by the Tribunal conducting the inquiry.

5. I again repeat my concern about the effect that divisions within claim groups can have on the operation of the right to negotiate process (see VF03/1, 22 December 2003 at [50]-[55] and WF03/16 and WF03/17, 18 November 2003 at [31]). It is regrettable that the split in the Central West Goldfields native title party means that the right to negotiate provisions of the Act cannot operate as intended by Parliament. It appears that every future act matter involving this native title party must now be resolved by an inquiry and determination. I am aware that there are discussions going on about resolving the issues within the Central West Goldfields claimant group and can only suggest that if they are not successful and there are questions about whether the current persons named as the applicant have the authority to make the claim and deal with matters arising in relation to it then there are steps available under the Act (s 66B) to have the matter resolved by the Federal Court.

6. My finding in the present matter 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 it to have the support of the claimant group.  Ms Wyatt is the only dissentient person and for the reasons explained in VF03/1 she is not a native title party and she has no standing on her own to oppose the determination.  I also have had regard to the following facts.  First, the Central West Goldfields native title party received advice from Mr Ron Bower, solicitor of Corser & Corser, who conferred and provided advice about the Ancillary Agreement to all the named applicants except Victor Cooper and Sue Wyatt at Kalgoorlie on 16 January 2004.  The Ancillary Agreement about which Mr Bower advised in relation to matter WF04/4 also covers M24/633.  Mr Bower informed the Tribunal in the WF04/4 proceedings that he was satisfied that the persons he meet with understood the nature, intent and effect of the Ancillary Agreement.  Second, from evidence given at the hearing by Mr Hill and confirmed by Ms Sambo in WF04/4 I am satisfied that the Ancillary Agreement deals with issues which are customarily found in agreements permitting the grant of mining leases.  The determination sought does not include any conditions reflecting the terms of the Ancillary Agreement and hence it is not necessary for me to sight it 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, however, that the Ancillary Agreement covers such matters as compensation, heritage protection, employment opportunities, cultural awareness programs for Siberia’s employees, the appointment of an Agreement Manager from one of the native title parties and funding for legal advice. Third, M24/633 is in the same vicinity as the mining leases the subject of WF04/4, being some 6 kilometres to the north of them. It covers an historical mining area and is adjacent to a current mine being operated by Siberia and in the vicinity of existing tailings dumps. This lessens the likelihood that any native title rights which are ‘enjoyed’ by the native title parties over the area will be affected by new mining operations. I am satisfied that a consent determination is appropriate.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Mining Lease M24/633 to Siberia Mining Corporation Limited, may be done.

Hon C J Sumner
Deputy President
13 April 2004