Ollan Dimer and Others on behalf of Ngadju/Western Australia/Lake Johnston Ltd
[2008] NNTTA 62
•6 May 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of Ngadju/Western Australia/Lake Johnston Ltd, [2008] NNTTA 62 (6 May 2008)
Application No: WF08/8
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/native title party)
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The State of Western Australia (Government party)
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Lake Johnston Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 6 May 2008
Catchwords: Native title – future act – application for determination for the grant of mining leases – named applicants not signed state deed – logistical difficulties – ancillary agreement executed by grantee party – 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
Cases:Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/15 [2006], NNTTA 59 (17 May 2006), Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 1 April 2008
Solicitor for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
Representative of the
grantee party: Ms Kellie Hill, Kellie Hill Consulting
REASONS FOR FUTURE ACT DETERMINATION
On 13 September 2006 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 M63/523 and M63/524 (‘the proposed licences’) under the Mining Act 1978 (WA) to Lionore Australia (Nickel) Ltd (‘the grantee party’).
The Government party’s records note that on 12 November 2007 the grantee party registered a change of name to Lake Johnston Ltd.
M63/523 and M63/524 are located in the Shire of Dundas some 124 and 121 kilometres westerly of Norseman comprising 995.15 and 970.07 hectares respectively.
M63/523 is 28.78 per cent covered by the Ngadju native title claim (WC99/2, registered from 28 September 2000) and 71.22 per cent by the Central West Goldfields People’s native title claim (WC99/29, not accepted for registration on 18 September 2006). Following the recent technical amendments to the Act, the Central West Goldfields People’s native title claim has been again subjected to the registration test. At the time of this determination the delegate’s decision has not been issued. M63/524 is overlapped at 100 per cent covered by the Ngadju native title claim.
The native title party with respect to these proceedings is Ollan Dimer and Others on behalf of Ngadju (WC99/2, registered from 28 September 2000).
On 29 February 2008, being a date more than six months after the s 29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) on behalf of the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The applicant sought a consent determination on the basis that an ancillary agreement had been reached between the grantee party and the native title party but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) had not been executed by the persons comprising the native title applicant.
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. GLSC is the recognised representative body under the Act for the native title party. 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 Inquiry
The basis on which GLSC believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavit of Murray William Hutchings, forwarded to the Tribunal on 31 March 2008 and later affirmed on 16 April 2008. The affidavit refers to the proposed licences (amongst others the subject of other future act determination applications) and attests:
‘1. I am a solicitor employed by the Goldfields Land and Sea Council (“GLSC”)
2. I mainly work in the area of Future Acts….
5. Annexed hereto and marked “B” is copy of an affidavit dated 11th May 2006 (“the previous affidavit”).
6. The previous affidavit details the difficulties encountered in obtaining the signatures of all Ngadju People Applicants to sign the State Deed and the procedure that I followed to obtain the consent of the majority of the Applicants to proceed to consent determinations.
7. With respect to application WF08/8 Lionore Australia (Nickel) Ltd (“Lionore”) I realize that it is an application for mining licences. The previous affidavit at paragraph 15 details that the “blanket” permission to bring Consent Applications only applies to applications for exploration and prospecting licences. As application WF08/8 is an application for a mining licence I say the following
8. On or about 6/3/97 Lionore signed an agreement to provide certain benefits to the Ngadju People. That agreement also included any future tenements for mining that may be applied for within the boundaries of the Ngadju Peoples Native Title Claim area. It is therefore the case that the Ngadju People and Lionore have a current operational agreement in place and therefore the Ngadju People must consent to the granting of the new mining licence applications.
9. Following the outcomes achieved at the working party meting held on 23 November 2005 and as a result of my telephone conversation with the majority of Ngadju Applicants on 23 August 2007 I believe that I have the authority to bring applications to seek that determinations be made in the terms of the consent applications.’
The annexed affidavit of Mr Murray Hutchings dated 11 May 2006 has been set out and discussed in Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/15 [2006], NNTTA 59 (17 May 2006), Daniel O’Dea at paragraph [12] (‘WF05/15’).
On 1 April 2008 I convened a hearing at which all parties were represented, confirmed their consent and agreed that the inquiry could proceed on the papers pending the lodgement of Mr Hutching’s affirmed affidavit and the execution of minute/s for a consent determination. The affirmed affidavit was received at the Tribunal on 16 April 2008.
Consent determinations in the following terms have been provided, executed by Mr Murray Hutchings as representative of the native title party, Mr S M Le Messurier, Lake Johnston Ltd Registered Manager Lake Johnston, for the grantee party and Mr Trevor Creewel of State Solicitor’s Office for 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 Leases 63/523 & 63/524 may be done.’
The Tribunal has previously accepted the difficulties in obtaining signatures of the Ngadju named applicants to a State Deed as a legitimate basis for seeking a consent determination (WF05/15) and I adopt the relevant findings made in that determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Leases M63/523 and M63/524 to Lake Johnston Ltd, may be done.
Daniel O’Dea
Member
6 May 2008
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