Muccan Minerals Pty Ltd/State of Western Australia/Johnson Taylor and Others on behalf of Njamal
[2007] NNTTA 77
•31 August 2007
NATIONAL NATIVE TITLE TRIBUNAL
Muccan Minerals Pty Ltd/State of Western Australia/Johnson Taylor and Others on behalf of Njamal, [2007] NNTTA 77 (31 August 2007)
Application No: WF07/25
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Muccan Mineral Pty Ltd (Applicant/grantee party)
- and -
The State of Western Australia (Government party)
- and -
Johnson Taylor and Others on behalf of Njamal (WC99/8) (native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 31 August 2007
Catchwords: Native title – future act – application for determination for the grant of mining lease – named applicants not signed s 31(1)(b) agreement – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109, 203BC(2)(b)
Mining Regulations 1981 (WA), Reg 75
Cases:Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, NNTT WF06/6, [2006] NNTTA 26 (24 March 2006), Hon C J Sumner
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 Date: 29 August 2007
Counsel for the Mr Rainer Mathews,
native title party: Yamatji Marlpa Barna Baaba Maaja Aboriginal Corporation
Representative of the Mr Dennis Jacobs,
native title party: Yamatji Marlpa Barna Baaba 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 Paola O’Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 17 January 2007, 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 M45/1164 (‘the proposed lease’) under the Mining Act 1978 (WA) to Muccan Minerals Pty Ltd (‘the grantee party’).
On 24 May 2007 the grantee party submitted an application to transferred its entire interest in the proposed lease to Moly Metals Australia Pty Ltd (‘Moly’) pursuant to Regulation 75 of Mining Regulations 1981 (WA).
The proposed lease comprises an area of 901.13 hectares, located 39 kilometres southerly of Shay Gap in the Shire of East Pilbara, and is entirely overlapped by the registered native title claim of the Njamal People (WC99/8 - registered from 3 June 1999).
On 17 August 2007 the Njamal People’s claim was amended in the Federal Court pursuant to s 66B of the Act. Those persons jointly comprising the applicant for the claim and therefore the native title party with respect to these proceedings are now:
Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Rodney Monaghan, Ms Alice Mitchell, Ms Lorraine Williams, Mr Tony Taylor, Mr Willie Jumbo and Ms Jean Walker on behalf of Njamal (WC99/8).
On 13 August 2007, being a date more than six months after the s 29 notice was given, Muccan Minerals Pty Ltd 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 28 August 2007 the Tribunal was provided with a minute of consent determination dated 24 August 2007 and executed in counterparts by Mr Rainer Mathews (Solicitor employed with Yamatji Marlpa Barna Baaba Maaja 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 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 M45/1164
We the solicitors for the parties consent to the following determinations being made in relation to the act the subject of this application, namely the proposed grant of Mining Lease 45/1164 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 s31(1)(b) of the Native Title Act 1993.
3. The act, namely the proposed grant of Mining Lease M45/1164 under the Mining Act 1978 (WA), may be done.’
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).
On 29 August 2007 I convened a preliminary conference at which all parties were represented. The Tribunal was advised that parties had in fact reached agreement over the doing of the act and each representative confirmed its consent to a determination that the act can be done. Mr Mathews for the native title party confirmed that on 17 August 2007 the Njamal working group instructed PNTS to do everything necessary to enable the making of a consent determination on the basis of terms contained within an agreement known as the Moly-Njamal Land Access Agreement which contemplate tenement applications made by third parties and subsequently transferred to Moly.
Mr Green, for the grantee party, referred to his sworn affidavit of 28 August 2007, in which he makes reference to paras 18 and 19 of an affidavit of Rainer Mora Mathews affirmed on 21 February 2007 and submitted as evidence in a previous s 35 application before the Tribunal (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, para [9] (‘Moly’)). Mr Green relevantly deposes:
‘5.Under the interim agreement [between Moly and Njamal], the Njamal People are obliged to:
…
(2) comply with certain provisions of the Moly – Njamal Land Access Deed, including clause B1.9 of the Moly – Njamal Land Access Deed which obliges the Njamal People to assist the grant of certain mining tenements applied for by persons other than Moly.
6.The provisions of the Moly – Njamal Land Access Deed are in all material respects identical to the provisions of the “Land Access Deed” referred to in paragraph 18 of the Matthews (sic) Affidavit.
7.On 13 August 2007, Moly served the Njamal People documents which satisfied the requirements of clause B1.9 of the Moly – Njamal Land Access Deed and which required the Njamal People to assist the grant of M45/1164 (“Notice to Assist”).
8.In response to the Notice to Assist, the Njamal People delivered to Moly a counterpart of a Minute of Consent Determination signed by Rainer Mora Matthews (sic) as the legal practitioner for the Njamal People. This counterpart has been filed with the National Native Title Tribunal in this matter.’
Mr Green also disposes that the Interim Agreement considered in Moly is no longer operative because the applicant for native title has been reconstituted and the Moly-Njamal Land Access Deed is now in operation. I am satisfied that the native title party is consenting to the determination pursuant to its obligations under the Interim Agreement and the Moly-Njamal Land Access Deed.
In the Moly case and other previous and subsequent matters involving the Njamal People (eg. 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 (‘BHP’)) it was not possible to obtain the signatures of all the persons named as part of the applicant to a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act) because some were deceased, and one of them (Mr Eddie McPhee) refused to sign. In another matter there were logistical difficulties in locating named applicants that precluded execution of the State Deed (Angus Abdullah and Others on behalf of Njamal/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, NNTT WF06/6, [2006] NNTTA 26 (24 March 2006), Hon C J Sumner). However, because the Njamal applicant for native title has now been reconstituted the issues which arose in the previous matters are no longer applicable (eg. Mr Eddie McPhee is no longer a named applicant), and Mr Mathews has confirmed that no logistical difficulties exist in that the nine persons now collectively comprising the applicant all live in or around Port Hedland.
In this matter the primary impetus for the request that a determination that the act can be done by consent was made because the grant of M45/1164 was specifically contemplated in the Interim Agreement and at the time the s 35 application was lodged the logistical and other difficulties (i.e. Mr McPhee’s refusal to sign agreements) remained because the Njamal applicant group had not been reconstituted. As a result to date no steps have been taken to secure signatures on a State Deed. Mr Mathews and Mr Green independently confirmed that a great deal of time and effort had gone into the making of the agreement between Moly and Njamal and that consent determination would be the most cost effective and expeditious method of proceeding. In addition, Mr Green confirmed that neither the agreements between Moly and Njamal, nor the agreement between Moly and Muccan Minerals in relation to M45/1164 contemplate execution of a State Deed by the grantee party.
In Monkey Mia the Tribunal set out in detail the basis upon which consent determinations are made. Ordinarily the Tribunal is prepared to act on consent of the parties as conveyed by their solicitors. However, there have been circumstances where the Tribunal has required further information about the consent particularly where one or other of the persons named as applicant have refused to sign a State Deed. As a result of the reconstitution of the claim group the Njamal native title party is no longer in this situation and there is no difficulty in accepting that their solicitor has been properly instructed to consent. 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 203BC(2)(b) of the Act. I also adopt my findings in BHP at 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 act, namely the grant of mining lease M45/1164 to Muccan Minerals Pty Ltd may be done.
Hon C J Sumner
Deputy President
31 August 2007
0
4
0