Maincoast Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal

[2007] NNTTA 66

NATIONAL NATIVE TITLE TRIBUNAL

Maincoast Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal, [2007] NNTTA 66 (6 August 2007)

Application No:                   WF07/4

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

Maincoast Pty Ltd (Applicant/grantee party)

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The State of Western Australia (Government party)

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Angus Abdullah and Others on behalf of Njamal (WC99/8) (native title party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  6 August 2007

Catchwords:  Native title – future act – application for determination for the grant of exploration licences – named applicants 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 35, 38, 109, 203BC(2)(b)

Cases: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

Moly Metals Australia Pty Ltd; Kallenia Mines Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal, NNTT WF06/83, [2007] NNTTA 16 (2 March 2007), Hon C J Sumner

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing Dates:  2 July 2007, 24 July 2007, 3 August 2007

Counsel for the  Mr Shahzad Rind

native title party:                 Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

Solicitor for the  Mr Dennis Jacobs

native title party:                 Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

Counsel for the  
grantee party:  Mr Ken Green, Green Legal Pty Ltd

Representatives of the         Mr Rod Wahl, State Solicitors Office
Government party:              Ms Janice Goodwin, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 1 June 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E45/2510 and E45/2535 (‘the proposed licences’) under the Mining Act 1978 (WA) to Maincoast Pty Ltd (‘the grantee party’).

2. The proposed leases are 100 per cent overlapped by the registered native title claim of the Njamal People (WC99/8 - registered from 3 June 1999). The size and location are as follows:

• E45/2510 – 134.49 square kilometres, located 72 kilometres westerly of Marble Bar in the Shire of East Pilbara

• E45/2535 – 124.81 square kilometres, located 72 kilometres westerly of Marble Bar in the Shire of East Pilbara

1. The native title party with respect to these proceedings is:

• Mr Angus Abdullah, Mr Barry Taylor, Mr Biddy Norman, Mr Colin Malana, Mr Dan Murphy, Mr Eddie McPhee, Name Withheld for Cultural Reasons, Name Withheld for Cultural Reasons, Mrs Jan Taylor, Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Name Withheld for Cultural Reasons, Mr Rodney Monaghan, Mr Teddy Allen, Ms Alice Mitchell, Ms Lorraine Williams on behalf of Njamal (WC99/8)

1. On 2 May 2007, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. Paragraph 10 of the application stated that parties had not been able to reach agreement regarding the doing of the proposed future acts.

2. On 25 May 2007 I convened a preliminary conference at which all parties were represented.  The grantee and native title parties advised they were attempting to conclude negotiations on an agreement and requested a two week adjournment to allow further negotiations. At adjourned conferences scheduled on 12 June 2007, 2 July 2007 and 24 July 2007 subsequent adjournments to conclude negotiations to permit a consent determination were sought and agreed to by all parties.

1. 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. Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) is the recognised representative body under the Act for the Njamal native title party and has represented them in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service. 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).

2. At a hearing on 3 August 2007 all parties advised that a consent determination was sought and subsequently a minute of consent determination in the following terms was provided executed by Mr Shahzad Rind (solicitor employed by Yamatji) on behalf of the native title party, Mr Ken Green (Green Legal Pty Ltd) on behalf of the grantee party, and Mr Trevor Creewel (State Solicitor’s Office) on behalf of the Government party:

‘CONSENT TO DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH) IN RELATION TO THE GRANT UNDER THE MINING ACT 1978 (WA) OF E45/2510 AND E45/2535

We the solicitors for the parties consent to the following determinations being made in relation to the acts the subject of this application, namely the proposed grant of Exploration Licence 45/2510, and Exploration Licence 45/2535 under the Mining Act 1978 (WA):

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 have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

3. The acts, namely the proposed grant of Exploration Licence 45/2510, and Exploration Licence 45/2535 under the Mining Act 1978 (WA), may be done without conditions.’

4. Mr Rind advised the Tribunal that the situation with respect to the persons named as part of the applicant for the Njamal claim described in Moly Metals Australia Pty Ltd; Kallenia Mines Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal, NNTT WF06/83, [2007] NNTTA 16 (2 March 2007), Hon C J Sumner at paras [9]-[11] remained the same namely that three of the named persons are deceased and Mr Eddie McPhee refuses to sign agreements acceptable to the Njamal registered claimant and native title party. Although steps have been taken to reconstitute the Njamal applicant for native title, this has not yet occurred. The Tribunal was also advised that an Exploration Agreement and Contract for Services in the standard form used by Yamatji with some modifications dealing with Aboriginal heritage issues had been entered into and executed by the grantee party. These agreements will be executed by the Executive Director of Yamatji (Mr Simon Hawkins) who has the authority of the native title party to execute agreements of this type on its behalf.

5. I am satisfied that the Njamal native title party has consented to the determination in accordance with a process of the kind referred to in s 203 BC(2)(b) of the Act. My findings are the same as those made in 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 at [13] and a number of subsequent matters which also involved the Njamal claimants. In relation to that matter Mr McPhee and two other persons named as part of the applicant had failed to sign the ancillary agreement but nonetheless I considered it appropriate to make a consent determination. I also adopt my findings in para [14] of that determination (a native title party is all the persons named as part of the applicant acting jointly and not each individual named person – Monkey Mia at [19]-[21]) and para [20] (a representative body has a formal responsibility under the Act to represent and protect the interests of native title parties and the Tribunal is to carry out its functions in an informal and prompt way and is not bound by technicalities, legal forms or rules of evidence (s 109)) (which provides a basis for accepting the advice of the solicitor engaged by Yamatji that proper consent has been given to the determination by the native title party).

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E45/2510 and E45/2535 to Maincoast Pty Ltd, may be done.

Hon C J Sumner
Deputy President
6 August 2007