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

[2004] NNTTA 15

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/Siberia Mining Corporation Limited/Western Australia, [2004] NNTTA 15 (9 March 2004)

Application No:        WF04/4

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

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 -

Siberia Mining Corporation Ltd (grantee 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:  9 March 2004

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

Legislation:  Native Title Act 1993 (Cth), ss 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

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: 2 March 2004

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

Representative of the
grantee party:  Mr Richard Hill, Secretary, 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

1. On 16 July 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of Mining Leases 24/845, 24/846, 24/847 and 24/848 (‘the Mining Leases’) under the Mining Act 1978 (WA) to Siberia Mining Corporation Ltd (‘the grantee party’/‘Siberia’).

2. The native title parties in these proceedings are:

   ·     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’).

3. On 18 February 2004, being a date more than six months after the s 29 notice was given Linda Champion on behalf of the Central West Goldfields 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 Mining Leases. The Central West Goldfields native title party seeks a determination that the acts be done by consent.

4. The National Native Title Tribunal (‘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).

Background information

1. Since the s 29 notice of 16 July 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 Leases. 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 the Mining Leases 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 with the grantee party for the grant of the Mining Leases (and certain future Mining Leases applied for by Siberia) (‘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) has declined to sign the Ancillary Agreement or 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 Deed signed by the Government party, grantee party and Maduwongga native title party even though lodged with the Tribunal as required by s 41A(1)(a) of the Act does not on its 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 native title party

1. Because the Maduwongga native title party has executed a State Deed which was lodged with the Tribunal the Maduwongga native title party played no active part in these proceedings.  Having sighted the State Deed I am satisfied that the Maduwongga native title party are not opposed to the grant of the Mining Leases.

Findings in relation the Central West Goldfields native title party

1. On 2 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.  Ms Sue Wyatt also participated and provided evidence in relation to her view of the Ancillary Agreement.

2. The Tribunal has before it a minute of a consent determination signed by Linda Champion, Richard Hill 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 Applications 24/845, 24/846, 24/847 and 24/848 may be done.’

3. 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 the Mining Leases despite the refusal of Sue Wyatt and Victor Cooper to sign the Ancillary Agreement and State Deed.  Since these documents were signed Victor Cooper has signed the Ancillary Agreement and State Deed.

4. 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 position the Tribunal informed Ms Wyatt of the hearing and permitted her to make submissions.

5. Ms Wyatt said that she refused to sign the Ancillary Agreement because it says that the Agreement has 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 authorized to make decisions about future acts.  She also pointed out that Mr Cooper was Ms Wyatt’s brother thus covering authorization from her family group.

6. My finding is that on the basis of the evidence referred to above (including the recent signing of the Ancillary Agreement and State Deed by Victor Cooper) the claim group as a whole consent to the determination.  Seven of the eight persons named as the applicant have signed the Ancillary Agreement thereby confirming that they consider the Agreement has 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.  Mr Bower has informed the Tribunal 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 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. 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 Leases M24/845, M24/846, M24/847 and M24/848 to Siberia Mining Corporation Limited may be done.

Hon C J Sumner
Deputy President
9 March 2004