Pilbara Manganese Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal
[2008] NNTTA 97
•30 July 2008
NATIONAL NATIVE TITLE TRIBUNAL
Pilbara Manganese Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal, [2008] NNTTA 97 (30 July 2008)
Application No: WF08/25
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Pilbara Manganese Pty Ltd (Applicant/grantee party)
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The State of Western Australia (Government party)
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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: 30 July 2008
Catchwords: Native title – future act – application for determination for the grant of mining lease – State Deed incorrectly executed by grantee party – native title party as a whole consent to the determination – consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38, 66B, 109
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd/Ronald Crowe and Others on behalf of Gnulli/Western Australia, NNTT WF04/25, [2004] NNTTA 95 (20 October 2004), 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
Solicitor for the Mr Rodney Nichole
native title party: Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Representative of the
grantee party: Ms Natalie Faas, Pilbara Manganese Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Paola O’Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 6 December 2006, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of the future act, namely the grant of mining lease M45/1115 (‘the proposed lease’) under the Mining Act1978 (WA) to Pilbara Manganese Pty Ltd (‘the grantee party’).
The proposed lease is entirely overlapped by the registered native title claim of the Njamal People (WC99/8 - registered from 3 June 1999). The proposed lease comprises an area of 155.81 hectares and is located 106 kilometres westerly of Telfer in the Shire of East Pilbara.
On 17 August 2007 the native title party’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, name withheld for cultural reasons, Mr Tony Taylor, Mr Willie Jumbo and Ms Jean Walker on behalf of Njamal.
On 10 July 2008, 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 future act determination under s 38. Paragraph 10 of the application states that the grantee and native title party have entered into an Ancillary Agreement regarding the proposed lease and executed a State Deed. However, it is said that the State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act) was inadvertently prepared with the incorrect name of the proposed tenement holder. Paragraph 10 of the applications states:
‘The holder of the tenement application Pilbara Manganese Pty Ltd is a subsidiary of Consolidated Minerals Limited who has subsequently executed the formal agreement (State Deed) which is invalid.’
Appended to the application is the copy of the State Deed and counterpart executed by all living named applicants of the native title party and the Director and Company Secretary of Consolidated Minerals Limited the subsidiary company of the correct grantee party, Pilbara Manganese Pty Ltd.
Appended to the application is a minute of consent determination in the following terms executed by Mr John Abbott, Company Secretary for Pilbara Manganese Pty Ltd, and subsequently executed by Mr Rodney Nichole, Senior Legal Officer employed by Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) on behalf of the native title 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 45/1115 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 native title party and has represented them in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service. 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
Given the reasons for seeking a consent determination were set out in paragraph 10 of the application I am satisfied from the evidence produced that the misdescription of the proposed tenement holder’s name on the State Deed was a clerical error. The error does not call into question the consent of the parties to the grant of the proposed lease. On this basis I sought submissions from the parties on the appropriateness of conducting the inquiry ‘on the papers’ (i.e. without a formal hearing). As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.
Findings
In previous matters involving this native title party consent determinations have been sought because it was not possible to obtain the signatures of the named applicants for the State Deed. This is not such a case. If not for the inadvertent error in the preparation of the State Deed as explained in paragraph 10 of the application the proposed lease would have proceeded to grant on the execution of the State Deed. The Tribunal has previously considered a similar circumstance in Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd/Ronald Crowe and Others on behalf of Gnulli/Western Australia, NNTT WF04/25, [2004] NNTTA 95 (20 October 2004), Hon C J Sumner and decided that a consent determination was appropriate. In that matter the State Deed was executed by the grantee party and each of the named applicants for the native title party however one of the company names contained a “clerical error”.
On the basis of the signed minute of consent executed by all the parties and the existence of a State Deed executed by all named applicants I am satisfied there is evidence to support my finding that in this matter all parties (including the native title party) consent to the determination in the terms sought. Furthermore, I adopt my findings from 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 at para [20] in relation to the responsibilities of the recognised native title representative body for the region and the Tribunal’s own responsibilities under s 109 of the Act. On the evidence provided I am satisfied that the native title party has consented to the grant of the proposed lease.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M45/1115 to Pilbara Manganese Pty Ltd may be done.
Hon C J Sumner
Deputy President
30 July 2008
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