Ollan Dimer and Others on behalf of Ngadju/Leonne Velickovic and Others on behalf of the Widji People/Western Australia/Focus Minerals Ltd
[2007] NNTTA 63
•18 July 2007
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of Ngadju/Leonne Velickovic and Others on behalf of the Widji People/Western Australia/Focus Minerals Ltd, [2007] NNTTA 63 (18 July 2007)
Application Nos: WF07/9
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
Ollan Dimer and Others on behalf of Ngadju (WC99/2)(Applicant/Ngadju native title party)
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Leonne Velickovic and Others on behalf of the Widji People (WC98/27)(Widji native title party)
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The State of Western Australia (Government party)
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Focus Minerals Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 18 July 2007
Catchwords: Native title — future act — application for determination for the grant of mining lease — named applicants signed state deed in the name of the wrong grantee party — logistical difficulties — Ancillary Agreements (Area Agreement) executed by grantee party and native title parties — 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, 41A
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Ollan Dimer on behalf of the Ngadju People/Australian Gold Resources Ltd/Western Australia, NNTT WF07/3, [2007] NNTTA 49 (29 May 2007), Daniel O’Dea
Hearing date: 12 July 2007
Representative of the Mr Shannon McMahon
grantee parties: McMahon Mining Titles Services Pty Ltd
Representative of the Mr Murray Hutchings
native title party: Goldfields Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the 12 January 2005 the Government party gave notice under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) of future act, namely the grant of mining lease M15/1431 (‘the proposed lease’) to Austminex NL (‘the grantee party’). On 23 December 2004 an Application to Amend (name) was lodged by the grantee party to register as Austminex Ltd. A subsequent Application to Amend (name) was lodged on 23 January 2006 to register as Focus Minerals Limited.
The proposed lease is 3 hectares in extent, located 38 kilometres southerly of Kambalda in the Shire of Coolgardie, and is 100 per cent overlapped by the registered claims of the Ngadju (WC99/2, registered from 28 September 2000) and the Widji People (WC98/27, registered from 15 June 1998).
The native title parties in respect of these proceedings are:-
·Arthur Dimer (deceased), Betty Bullen, Georgina Schultz (deceased), Jack Schultz, John Walter Graham, Katie Ray, Mabel Wilson (deceased), Maureen Young (deceased), Ollan Dimer and Sonny Graham on behalf of Ngadju (WC99/2)(‘Ngadju native title party’)
·Gary Dimer, Leonne Dale Velickovic, Lisa Bonney, Mary Anne Velickovic and Olivia Dimer on behalf of the Widji People (WC98/27)(‘Widji native title party’)
On 9 September 2005 a State Deed for the proposed licence was lodged with the Tribunal by the Government party in accordance with s 41A of the Act, fully executed by the Widji native title party, the Government party and the grantee party (at that time being Austminex Ltd).
On 26 June 2007, being a date more than six months after the s 29 notice was given, the Ngadju 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 proposed lease. The Ngadju native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, subsequently executed by Mr Murray Hutchings for and on behalf of the Ngadju native title party, Mr Peter Williams (Director) and Mr Ken Maguire (Secretary) 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)
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 15/1431 may be done’
Paragraph 10 of the application explains why a consent determination is sought:
“1.The negotiation parties have been able to execute a formal agreement (State Deed) of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 in respect of the future act (see attached).
2.The native title party consents to the proposed act being done, that is the grant of Mining Lease 15/1431 the subject of this Consent Determination. The grantee party and the native title party confirm that a ancillary agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that the Mining Lease 15/1431 can therefore be granted in pursuance to the consent determination.
3.At the signing of the formal agreement (State Deed) a grantee party name change from Austminex P/L to Focus Minerals Ltd had occurred and the formal agreement (State Deed) was mistakenly signed by all parties in the name of Austminex P/L thus making the agreement invalid.
4.There are logistical difficulties in arranging for the native title party to execute a State Deed in respect of the tenement sought by the Grantee Party as contemplated by s31(1)(b) of the NTA. These logistical difficulties include arranging for travel for a solicitor to travel from Kalgoorlie to Norseman, the time taken to arrange a meeting with the named applicants on the native title claim Ngadju (WC99/2).”
Appended to the application is a State Deed executed by all the living persons comprising the Ngadju native title party applicant and the grantee party under the name of Austminex Ltd.
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. 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).
Findings in relation to the Widji native title party
On the basis that a State Deed for the proposed licence dated 9 September 2005 has been lodged with the Tribunal, fully executed by the Widji native title party, the Government party and the grantee party which at that time was Austminex Ltd, I am satisfied the Widji native title party consent to the doing of the act.
The inquiry and findings in relation to the Ngadju native title party
On 13 July 2007 the Tribunal conducted a hearing at which the grantee, Government and Ngadju native title parties were represented and confirmed their consent to the determination in the terms sought. Mr Murray Hutchings, solicitor at Goldfields Land and Sea Council (“GLSC”), appeared as counsel for the Ngadju native title party, confirmed that the statement at paragraph 10 of the application was correct and that he was satisfied the Ngadju native title party consented to the determination.
On the basis of the information contained in the application, the confirmation provided by Mr Hutchings at the hearing, and the evidence of a State Deed executed by all the living persons comprising the applicant and the grantee party (albeit under its previous name), I am satisfied that the Ngadju native title party has consented to the doing of the act. The Tribunal is entitled to accept the evidence of GLSC’s legal representative on whether the appropriate consent has been given by the Ngadju native title party and there is nothing to suggest the contrary. The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Ngadju native title party applicant in Ollan Dimer on behalf of the Ngadju People/ Australian Gold Resources Ltd/Western Australia, NNTT WF07/3, [2007] NNTTA 49 (29 May 2007), Daniel O’Dea. As a consequence, I am satisfied that the Ngadju native title party has consented to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M15/1431 to Focus Minerals Ltd, may be done.
Daniel O’Dea Member
18 July 2007
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