Ollan Dimer and Others on behalf of the Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd

[2007] NNTTA 65

NATIONAL NATIVE TITLE TRIBUNAL

Ollan Dimer and Others on behalf of the  Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd, [2007] NNTTA 65 (7 August 2007)

Application No:         WF07/11

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 the  Ngadju People (WC99/2) (native title party)

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The State of Western Australia (Government party)

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Kinross Gold Australia Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:               Daniel O’Dea, Member

Place:  Perth
Date:  7 August 2007

Catchwords:  Native title — future act — application for determination for the grant of mining leases —  logistical difficulties — ancillary agreement executed by grantee party and native title 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, 203B

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/ Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Heron Resources Ltd/Western Australia, NNTT WF06/52, [2006] NNTTA 124 (22 August 2006), Daniel O'Dea

Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd NNTT WF06/72 and WF06/73 [2006] NNTTA 134 (12 October 2006), Daniel O’Dea

Ollan Dimer and Others on behalf of Ngadju/Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Frasex Pty Ltd, NNTT WF06/74 [2006] NNTTA 135 (12 October 2006), Daniel O’Dea

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

Representative of the          Mr Jehann Mendis, Mallesons Stephen Jaques
grantee party:  

Representative of the          Mr Murray Hutchings, Goldfields Land and Sea Council
native title party:                  

Representatives of the        Mr Rod Wahl, State Solicitor’s Office
Government party:               Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 8 September 1999, the State of Western Australia (‘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 Leases M63/515 and M63/516 (‘the proposed leases’) under the Mining Act 1978 (WA) to Kinross Gold Australia Pty Ltd (‘the grantee party’).

2. The native title party in respect of these proceedings is:

Arthur Dimer (deceased), Betty Bullen, Georgina Schultz (deceased), Jack Schultz, John Walter Graham, Katie Ray, Mabel Wilson, Maureen Young (deceased), Ollan Dimer and Sonny Graham on behalf of Ngadju (WC99/2) (‘the native title party’)

1. The area and location of the proposed leases are as follows:

   ·   M63/515 – 710.66 hectares, located 19 kilometres southerly of Norseman in the Shire of Dundas; and

   ·   M63/516 – 709.1 hectares, located 24 kilometres southerly of Norseman in the Shire of Dundas.

Each of the proposed leases is overlapped 100 percent by the registered claim of the Ngadju People (WC99/2 – registered from 28 September 2000). The Ngadju People are accorded procedural rights under Part 2, Division 3 Subdivision P of the Act by way of pre-combination Ngadju claim WC95/17, which was lodged and entered on the Register of Native Title Claims from 8 September 1995 to 21 September 2000, and which also entirely overlapped the proposed leases.

1. On 13 July 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. It is stated in paragraph 10 of the application that an Agreement has been reached between the grantee party and the native title party and that the grantee party has agreed to abide by the provisions of the agreement. As a consequence the Ngadju native title party request that the future act determination be made by consent on the basis that ‘logistical difficulties’ preclude arrangements for the native title party to execute a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). An affidavit of Mr Murray William Hutchings, Solicitor for the Goldfields Land and Sea Council, sworn on 13 July 2007 supported the application.

2. Subsequent to the lodgement of  the application a minute of consent determination was provided in the following terms, subsequently executed by Mr Murray Hutchings for and on behalf of the native title party, Mallesons Stephen Jaques, lawyers for 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 Leases 63/515 and 63/516 may be done’

3. 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).

The Inquiry

1. This matter has much in common with previous consent determination applications brought by the native title party (Ollan Dimer on behalf of the Ngadju People/ Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Heron Resources Ltd/Western Australia, NNTT WF06/52 [2006] NNTTA 124 (22 August 2006), Daniel O’Dea (‘Heron Resources’); Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd NNTT WF06/72 and WF06/73 [2006] NNTTA 134 (12 October 2006), Daniel O’Dea; Ollan Dimer and Others on behalf of Ngadju/Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Frasex Pty Ltd, NNTT WF06/74 [2006] NNTTA 135 (12 October 2006), Daniel O’Dea; 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). Given that the reasons for seeking a consent determination were explored in Heron Resources (at paras [6] and [12]), I sought submissions from parties on the appropriateness of conducting the inquiry 'on the papers' (ie without a formal hearing).  As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.

Findings

1. The basis for my finding is contained in the affidavit of Murray William Hutchings, Solicitor for the Goldfields Land and Sea Council (‘GLSC’) which is the representative body for native title claimants in the Goldfields region pursuant to s 203B of the Act and is instructed to act on behalf of the native title party. The affidavit was sworn on 13 July 2007 and asserts that at a full claim meeting held on 15 May 2007 in Kalgoorlie the native title party unanimously resolved as follows:

   ‘that the GLSC future acts lawyer can sign a consent determination on behalf of the Ngadju people allow the granting of mining tenements M63/515-516 to Kinross Gold Australia provided that the company provides information regarding payments that have been made in the past and honours the agreement’

As a consequence of this resolution, Mr Hutchings deposes that he believes he has the authority to bring an application seeking a consent determination in relation to the proposed leases. 

1. The resolution passed by the Ngadju People is curiously constructed in that it appears to be conditional upon the provision of certain financial information by the grantee to the native title party. Upon inquiry Mr Hutchings provided confirmation in writing that the grantee party had provided the requested information and that he consequently believed himself instructed to execute the consent minute as drafted. The Tribunal is entitled to accept the evidence of GLSC’s legal representative on whether the appropriate consent has been given by the native title party and there is no evidence to suggest the contrary.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of Mining Leases M63/515 and M63/516 to Kinross Gold Australia Pty Ltd, may be done.

Daniel O’Dea
Member

7 August 2007