Moly Metals Australia Pty Ltd; Kallenia Mines Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal
[2007] NNTTA 16
•2 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Moly Metals Australia Pty Ltd; Kallenia Mines Pty Ltd/State of Western Australia/Angus Abdullah and Others on behalf of Njamal, [2007] NNTTA 16 (2 March 2007)
Application No: WF06/83
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Moly Metals Australia Pty Ltd (Applicant/grantee party)
and
Moly Metals Australia Pty Ltd and Kallenia Mines Pty Ltd (Applicant/grantee party)
- and -
The State of Western Australia (Government party)
- and -
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: 2 March 2007
Catchwords: Native title – future act – application for determination for the grant of mining leases – 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
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Representative of the Mr Rhys Davies, Yamatji Marlpa Barna Baba Maaja Aboriginal
native title party: Corporation
Representative of the Mr Ken Green, Green Legal Pty Ltd
grantee party:
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 6 April 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 mining leases M45/1095, M45/1096 and M45/1097 ('the proposed licences') under the Mining Act 1978 (WA) to Anaconda Metals Group Pty Ltd and Kallenia Mines Pty Ltd (‘the grantee parties’).
On 9 November 2005 Anaconda Metals Group Pty Ltd registered a change of name to Moly Metals Australia Pty Ltd. In the case of M45/1095 and M45/1096 only, on 10 November 2006, Kallenia Mines transferred its interests to Moly Metals. Moly Metals Australia Pty Ltd is now the beneficial holder of M45/1095 and M45/1096, and continues to share its interest with Kallenia Mines Pty Ltd in the case of M45/1097. Moly Metals Australia Pty Ltd has acted for both grantees in these proceedings.
The size, location and extent to which the proposed leases are overlapped by the registered native title claim of the Njamal People (WC99/8 - registered from 3 June 1999) are as follows:
· M45/1095 – 960 hectares, located 41 kilometres southerly of Shay Gap in the shire of East Pilbara; 100 per cent overlap
· M45/1095 – 962.68 hectares, located 42 kilometres southerly of Shay Gap in the shire of East Pilbara; 100 per cent overlap
· M45/1097 – 153.95 hectares, located 42 kilometres southerly of Shay Gap in the shire of East Pilbara; 100 per cent overlap
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)
On 29 November 2006, being a date more than six months after the s 29 notice was given, Moly Metals Australia Pty Ltd (in the case of M45/1095 and M45/1096) and Moly Metals Australia Pty Ltd and Kallenia Mines Pty Ltd (in the case of M45/1097) made an application pursuant to s 35 of the Act for a future act determination under s 38. The application stated that parties had not been able to reach agreement regarding the doing of the proposed acts within six months of s 29 notification.
On 19 December 2006 I convened a preliminary conference at which all parties were represented. The Tribunal was advised that parties had in fact reached an agreement in principle, but that at law there could be no agreement because one named applicant for the Njamal People had refused to sign. To facilitate further discussions and continued s 31 mediation by Deputy President Fred Chaney I set directions for the conduct of a substantive s 35 inquiry, and in doing so allowed an eight week period for parties to resolve the present issue and, if appropriate, seek a determination that the act may be done by consent.
On 1 February 2007, all parties requested that the directions of 19 December 2006 be vacated on the basis that an interim agreement was being drafted which, if executed, would allow parties to seek a consent determination. Accordingly I approved that request subject to the provision of a realistic timeframe for resolution of this matter. On 15 February 2007 the Tribunal case manager was advised that a mutually agreed outcome was dependent on the execution of the interim agreement within one week and the making of a future act consent determination within four weeks of that execution. On 19 February, Mr Rhys Davies, representative of the native title party, advised that the interim agreement had been executed and requested that the future act determination be made by consent. A draft minute of consent determination was subsequently provided relating to Moly Metals Australia Pty Ltd, executed by Mr Michael Meegan (Principal Legal Officer of the Yamatji Barna Baba Marlpa Aboriginal Corporation (‘YMBBMAC’)) on behalf of the native title party, Mr Ken Green (Green Legal Pty Ltd) on behalf of the grantee party, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
The Government Party, the Native Title Party and the Grantee Party consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Leases M45/1095 and M45/1096 may be done.’
A draft consent minute in the same terms and pertinent to Kallenia Mines Pty Ltd, Moly Metals Australia Pty Ltd and M45/1097 has also been provided.
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 Njamal native title party and has represented them in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service (‘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 native title party has provided evidence in the form of an affidavit dated 21 February 2007 of Rainer Mora Mathews, solicitor employed by YMBBMAC. Mr Mathews deposes, inter alia:
‘5.The Njamal People have adopted a process of decision making in relation to the making of the Njamal Claim and dealing with matters arising from it, including entering into agreements about the doing of future acts that attract the right to negotiate.
6.The Njamal People have authorised 13 members to deal with day to day matters arising from the Njamal Claim including dealing with matters relating to Aboriginal heritage and exercising procedural rights pursuant to Part 2 Division 3 of the Native Title Act 1993 (Cth). Those persons are known as the Njamal working group.
7.I am informed by Rhys Davies, articled clerk, and verily believe that the Njamal working group met with Moly on several occasions throughout 2005 and 2006, including a final meeting on 7 November 2006. PNTS staff attended the meeting and provided legal advice.
8.At this meeting, the Njamal working group and Moly reached agreement on the final terms of a proposed Land Access Deed.
9.On 10 November 2006, at a duly-convened meeting of the Njamal Community, the Njamal People unanimously resolved to enter into the proposed Land Access Deed and authorised and instructed all members of the applicant to execute the Land Access Deed.
10.The Land Access Deed provides for, amongst other things, environmental and aboriginal heritage protection, employment, education and training, contracting opportunities, compensation and for the grant of tenure to Moly including, from time to time, the execution of deeds for the grant of mining tenements.
Execution of Agreement and State Deed
11.All members of the native title party except the first-named member of the native title party (initials P.C.), the fifth-named member of the native title party (initials E.J.), the seventh-named member of the native title party (initials E.S.) and Mr. Eddie McPhee have executed the Land Access Deed.
12.All members of the native title party except P.C., E.J., E.S. and Mr. Eddie McPhee have executed a deed for grant of mining tenement for mining leases 45/1095, 1096 and 1097 (‘State Deed’). A true and correct copy of the State Deed is annexed to this affidavit and marked ‘RMM1’.
13.I am informed by Kevin Allen, PNTS Aboriginal liaison officer, and verily believe that the individual with the initials P.C. passed away on 11 September 2006.
14.I am further informed by Mr. Allen and verily believe that the individual with the initials E.J. passed away on 17 September 2006.
15.I am informed by Christine Lundy, PNTS administrative assistance, and verily believe that the individual with the initials E.S. passed away on 1 October 1999.
16.I am informed by Rhys Davies, PNTS articled clerk, that Mr. Eddie McPhee has refused to sign the Agreement and the State Deed but has given not clear reasons for his refusal.
Amendment of Applicant and Interim Agreement
17.At a Njamal community meeting on 25 October 2006, the Njamal People gave PNTS instructions to amend the applicant in respect of the Njamal Claim to remove the deceased members of the applicant and Mr. McPhee, and to remove or replace several members of the applicant who are of advanced age. PNTS is in the process of finalising the documents for filing with the Federal Court to make the necessary amendments to the Njamal Claim.
18.Owing to the incomplete execution of the Land Access Deed, the Njamal People and Moly have reached an interim agreement which provides for the [sic] both parties to be bound by certain provisions of the Land Access Deed, including the provisions relating to consent to tenure (but excluding any requirement to execute a deed for grant of mining tenement), whilst allowing the Njamal People a reasonable period of time in which to amend the applicant in respect of the Njamal Claim and duly execute the Land Access Deed.
19.The interim agreement has been executed by Moly and the executive director of YMBBMAC for and on behalf of YMBBMAC as agent for the Njamal People. A true and correct copy of the execution page of the interim agreement is annexed to this affidavit and marked ‘RMM2’.
20.I am satisfied that, in accordance with the resolution passed by the Njamal community on 10 November 2006 authorising entry into the Land Access Deed and on the basis of the terms of the interim agreement, that the Njamal People consent to the grant of mining leases 45/1095, 1096 and 1097.’
The heading to Mr Mathews’s affidavit contains a record of relevant parties, and includes a list of Njamal named applicants. This list records the names of each of the Njamal named applicants unless deceased, in which case initials are used and a note in parenthesis states ‘name withheld for cultural reasons’. The same list is also used on the cover page of the appended State Deed. The order of named applicants referenced in para 11 of the affidavit accords with these lists rather than with the order of named applicants as listed on the Register of Native Title Claims.
The Tribunal is also in possession of a copy of the death certificate of the one deceased applicant referred to as E.S. confirming the facts asserted in para 15 of Mr Mathew’s affidavit. I am satisfied from the evidence in paras 13 and 14 of this affidavit that the persons referred to as P.C. and E.J. are deceased.
Findings
On 1 March 2007, the Tribunal conducted a hearing at which the parties’ representatives confirmed their consent to the determination. Mr Davies for the native title party confirmed that the Executive Director of YMBBMAC was authorised by the native title party to enter into the interim agreement referred to in para 19 of Mr Mathew’s affidavit.
I am satisfied that the Njamal native title party have consented to the determination in accordance with a process of the kind referred to in s 203 BC(2)(b) of the Act. All but one of the living persons comprising the applicant and native title party have executed a State Deed (an agreement of the kind contemplated in s 31(1)(b) of the Act) and the Executive director of YMBBMAC has executed the interim ancillary agreement for and on behalf of YMBBMAC as agent for the Njamal People.
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 one other named 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 YMBBMAC that proper consent has been given to the determination by the native title party).
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of mining leases M45/1095 and M45/1096 to Moly Metals Australia Pty Ltd; and mining lease M45/1097 to Moly Metals Australia Pty Ltd and Kallenia Mines Pty Ltd, may be done.
Hon C J Sumner
Deputy President
2 March 2007
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