Phanerozoic Energy Pty Ltd/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia
[2009] NNTTA 31
•31 March 2009
NATIONAL NATIVE TITLE TRIBUNAL
Phanerozoic Energy Pty Ltd/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, [2009] NNTTA 31 (31 March 2009)
Application No: WF09/3
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
Phanerozoic Energy Pty Ltd (Applicant/grantee party)
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Aden Eades and Others on behalf of Southern Noongar (WC96/109) (Southern Noongar native title party)
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Alan Bolton and Others on behalf of Wagyl Kaip (WC98/70) (Wagyl Kaip native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Mr Daniel O'Dea, Member
Place:Perth
Date:31 March 2009
Catchwords: Native title — future act — application for determination for the grant of mining lease — named applicants not signed state deed — native title parties as a whole consent to the determination — consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 39, 66
Mining Act 1978 (WA)
Cases:Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Daniel O’Dea, Member
Gary Dimer and Others on behalf of the Widji People/Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson/Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) The Hon C J Sumner, Deputy President
James Dimer on behalf of the Esperance Nyungar People (WC96/64)/Paul Winston Askins /James Ian Stewart/Western Australia WF05/14 [2006] NNTTA 70 (8 June 2006) Mr Daniel O’Dea, Member
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President
Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President
Hearing date: 27 March 2009
Representative of the
grantee party: Ms Simone Muller, Pullinger, Readhead, Lucas Lawyers for
Phanerozoic Energy Pty Ltd
Representative for the Ms Maryse Aranda
Southern Noongar and South West Aboriginal Land and Sea Council
Wagyl Kaip native title
parties:
Representatives of the Ms Shelley Moore, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 17 November 1999, 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 M74/107 (‘the proposed lease’) under the Mining Act 1978 (WA) to Outokumpu Mining Australia Pty Ltd.
The Mining Tenement Register indicates that there have been several share transfers over the past nine years that have resulted in changes to the ownership of the proposed lease from the original application made by Outokumpu Mining Australia Pty Ltd to Phanerozoic Energy Pty Ltd (‘the grantee party’).
The proposed lease comprises an area of 411.2ha and is located 21 kilometres easterly of Ravensthorpe in the Shire of Ravensthorpe. The registered claims of the Southern Noongar People (WC96/109 registered from 18 November 1996) and Wagyl Kaip People (WC98/70 registered from 29 September 1998) each overlap the proposed lease by 100 per cent.
The native title parties with respect to these proceedings are:
Aden Eades, Dallas Coyne, Glen Colbung, Jerry Narkle, Justin Miniter and Rita Dempster on behalf of the Southern Noongar Families (WC96/109) ('Southern Noongar native title party'); and
Alan Bolton, Glen Colbung, Hazel Brown, Ken Colbung, Kevin Miller, Mark Smith, Mingli Wanjurri-Nungala, Rita Dempster, Rose Pickett and Sam Miller on behalf of Wagyl Kaip (WC98/70) ('Wagyl Kaip native title party')
The right to negotiate under s 31 of the Act applied in respect of the proposed lease. Application to the Tribunal for mediation assistance was sought by the grantee party on 4 April 2008 and the matter designated WM08/30 and WM08/37. On 13 February 2009 the legal representative for the grantee party Ms Simone Muller and the representative for the Southern Noongar and Wagyl Kaip native title parties Ms Maryse Aranda, Legal Officer from South West Aboriginal Land and Sea Council (SWALSC) advised the Tribunal that the parties had reached an in principle agreement. Ms Aranda indicated at the time that she believed that a consent determination pursuant to s 35 would be necessary as there were difficulties in obtaining all the applicants’ signatures. Ms Aranda advised that instructions would be obtained on the in principle agreement, and the consent of the native title parties to the s 35 application, at a Working Group Meeting to be held on 12 and 13 February 2009. The parties consented to my dealing with the s 35 determination application.
On 23 February 2009, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed lease ('the application').
At paragraph 10 of the application, there is a statement that the parties have not been able to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed lease. Relevantly, paragraph 10(1) of the application states:
‘1.The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31 (1) (b) of the Native Title Act 1993 (Cth) in respect of the future act. The parties have finalised the terms of an agreement however not all of the registered native title claimants are available to execute the agreement.’
Appended to the application was a minute of a consent determination in the following terms, executed by Ms Simone Muller on behalf of the grantee party. The minute was later executed by Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party and by Mr Richard Hickson, Principal Legal Officer of SWALSC on behalf of the Southern Noongar and Wagyl Kaip native title parties:
‘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 consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease Application 74/107 may be done.’
The Tribunal has 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/parties) are legally represented and those representatives have advised the Tribunal of the consent. SWALSC is the recognised representative body under the Act for the Southern Noongar and Wagyl Kaip native title parties and represents the native title parties in these proceedings. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon C J Sumner, Deputy President).
The inquiry
On 27 March 2009, the Tribunal conducted a hearing at which all parties were represented. Ms Aranda, Legal Officer from SWALSC represented the Southern Noongar and Wagyl Kaip native title parties, Ms Simone Muller represented the grantee party, and Ms Shelley Moore and Ms Faye Mitchell appeared for the Government party.
Findings on the native title parties consent to a determination
At the hearing the Government, grantee and Southern Noongar and Wagyl Kaip native title parties confirmed their consent to the determination in the terms sought. The reason for seeking the determination in respect of the Southern Noongar and Wagyl Kaip native title parties was because the State Deed had not been executed by three of the Wagyl Kaip named applicants being Mr Mark Smith, Mr Sam Miller and Mr Kevin Miller who are the subject of proceedings initiated under s 66B of the Act. The difficulties in obtaining the signatures for these native title parties were considered by me in detail in Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Daniel O’Dea, Member.
The affidavit of Mr Hickson, Principal Legal Officer of SWLASC filed with the Tribunal on 11 March 2009 attests that instructions were obtained from the Southern Noongar and Wagyl Kaip native title parties by the passage of a resolution at the Working Group Meeting held on 11 and 12 February 2009. The affidavit of Mr Hickson confirms that the Southern Noongar and Wagyl Kaip native title parties consent to the determination being made in relation to the proposed lease. A copy of the Southern Noongar and Wagyl Kaip native title parties resolution is attached as ‘Exhibit A’ to Mr Hickson’s affidavit.
The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination (see Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President; Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia [2006] NNTTA 84 (6 July 2006), Mr Daniel O’Dea, Member). In this matter the application was brought by the grantee party apparently with a view to expediting the grant of the tenement. That circumstance does not materially affect the question of whether the parties can properly consent.
Further, the Tribunal has on numerous occasions held that a native title party is all the named applicants for a native title determination acting jointly or collectively and not each individually named person. Where it is clear that the native title party or claim group as a whole consent to a determination despite dissent from some named applicants, the Tribunal will make a determination by consent (see for example Gary Dimer and Others on behalf of the Widji People/Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson/Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) The Hon C J Sumner; Bradley Foster & Ors (Waanyi People QC99/23)/Copper Strike/QLD 2006, NNTT QF06/1 and QF06/2 [2006] NNTTA 61 (19 May 2006) John Sosso, Member; and James Dimer on behalf of the Esperance Nyungar People (WC96/64)/Paul Winston Askins /James Ian Stewart/Western Australia WF05/14 [2006] NNTTA 70 (8 June 2006) Mr Daniel O’Dea, Member. In this matter the refusal of the three named applicants to sign the State Deed is not related to the nature or content of the agreement reached between the native title party and the grantee party but rather to a series of broader historical issues. I am satisfied that based on the evidence provided to the Tribunal, the Southern Noongar and Wagyl Kaip native title parties as a whole have agreed to the grant of the proposed lease and consent to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M74/107 to Phanerozoic Energy Pty Ltd, may be done.
Daniel O'Dea
Member
31 March 2009
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