Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people
[2000] NNTTA 67
•16 February 2000
NATIONAL NATIVE TITLE TRIBUNAL
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people, [2000] NNTTA 67
(16 February 2000)
Application No: WF99/5
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of a Future Act Determination Application
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited (applicant/grantee party)
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The State of Western Australia (Government party)
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Ron Harrington-Smith & Ors on behalf of the Wongatha people (native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon CJ Sumner, Member
Place: Perth
Date: 16 February 2000
Catchwords: Native Title – future act- application for a determination in relation to mining leases – request for adjournment refused - consent determination can be made – determination that the act may be done subject to conditions – individual applicants on a native title claim not entitled to be separately represented
Legislation:Native Title Act 1993 ss 35, 36
Cases:Western Australia/Ted Coomanoo Evans (Koara People)/Quinton Tucker (Ngurludharra Waljan People)/Townson Holdings NL, NNTT WF98/6, Hon CJ Sumner, 11 December 1998
Western Australia/Rita Dempster & Ors (Southern Noongar Families)/Paul Shiner & Ors, NNTT WF98/194, Prof Douglas Williamson QC, 3 June 1999
REASONS FOR DECISION
Background
The State of Western Australia (‘the Government party’) proposes, pursuant to the Mining Act 1978 (WA), to grant mining leases M38/675, M38/677, M38/690, M38/691 and M38/692 to Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited (‘the grantee party’/‘Granny Smith’). The proposed mining leases are in the mineral field of Mt Margaret and part of the Wallaby Project for the expansion of the Granny Smith Gold Mine located some 30 kilometres south easterly of Laverton.
The grants are future acts covered by s 26(1)(c)(i) of the Native Title Act 1993 (Cth) (‘the Act’) and cannot validly be done unless the right to negotiate provisions of the Act are complied with. The relevant provisions which are applicable to this matter are in Part 2, Division 3, Subdivision P (ss 25-44) of the new Act which came into operation on 30 September 1998 following amendments to the Act.
The Government party gave notice of its intention to grant the mining leases in accordance with s 29 of the Act on 14 October 1998.
On 27 October 1999 the grantee party, pursuant to s 35 of the Act, made a future act determination application to the Tribunal.
At the time that the notice was given the following persons were registered native title claimants over all of the proposed mining leases and native title parties in relation to the matter (s 29(2)(b)(i)).
| · | WC94/8 | Leo Thomas, Lois Thomas, Bertha Thomas, Preston Thomas (Jr), Beverley Lynch, Fay Sambo, Jennifer Lynch, Quinton Tucker, Roberta Thomas |
| · | WC95/57 | Dimple Sullivan |
| · | WC96/4 | Sadie Canning |
| · | WC97/4 | Aubrey Lynch, Ross Victor Lynch |
| · | WC97/10 | Barron Bonney, Alison Tucker, Hilda Dimer, Marjorie Bonney |
| · | WC97/35 | Sadie Canning, Dimple Sullivan, Tomasisha Passmore, Fred Meredith, Rommel McGrath, William Vincent, Laurel Cooper, Murray Stubbs, Elvis Stokes, Lois Thomas, Beverley Lynch, Fay Sambo, Allison Tucker, Marjorie Bonney, Barron Bonney, Hilda Dimer, Ross Lynch, Bertha Thomas, Cyril Barnes, Aubrey Lynch, Edward McGrath, Dennis Forrest, Adrian Meredith, Celia Sullivan, Preston Thomas (Jr) |
| · | WC97/64 | Pearlie Wells, Marjorie Strickland |
No other persons had made native title determination applications by 14 January 1999 (3 months from the notification day) and there were therefore no other persons who had become native title parties by 14 February 1999 (4 months from the notification day) (s 30(1)(a)).
On 22 January 1999, the Federal Court combined twenty claims, including the seven claims specified above, into the Wongatha claim. The applicants on the Wongatha claim were specified as Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O’Loughlin and Sadie Canning. In Evans (Koara) & Ors/Anaconda Nickel Ltd & Ors/Western Australia, NNTT WF98/267 & Ors, Hon CJ Sumner, 15 July 1999 the Tribunal decided that the effect of the Federal Court order was to replace the registered native title claimants on each of the pre-combination claims with the Wongatha applicants and then combine them.
On 26 February 1999 the Wongatha claim was accepted for registration under s 190A of the new Act and placed on the Register of Native Title Claims on 3 March 1999. The applicants on the Wongatha claim thereby became the registered native title claimants and hence the native title party in the matter.
On 16 November 1999, the Federal Court (WA v Native Title Registrar & Ron Harrington-smith & Ors on behalf of the Wongatha People [1999] FCA 1593, Carr J) decided that the Native Title Registrar had breached the rules of natural justice in considering whether to accept the combined Wongatha claim for registration. The decision to accept the claim for registration was set aside and on 10 December 1999 the Wongatha claim was removed from the Register and the pre-combination claims were reinstated.
On 10 February 2000 the Wongatha claim was again placed on the Register of Native Title Claims, after it was further amended and the Registrar had again accepted it for registration. This means that the Wongatha applicants are the native title party in this application.
On 21 December 1999 the Tribunal found the Government and grantee parties had fulfilled the obligation to negotiate in good faith as required by s 31(1)(b) of the Act and that the Tribunal had jurisdiction to conduct an inquiry and make a determination.
Representation at the hearing
At the hearing the Government party was represented by Mr Graeme Carlin of the Crown Solicitor’s Office and the grantee party by Mr Ken Jagger of Freehill, Hollingdale and Page, solicitors. Eleven of the Wongatha applicants (that is, all except Dimple Sullivan) were represented by Mr Paul Tolcon and Mr Russell Trott of Mony de Kerloy, solicitors and Mr Neil Bell, solicitor with the Goldfields Land Council (‘the GLC’). Dimple Sullivan was represented by Mr Steve Povey, a friend of Mrs Sullivan.
The representation issue
Prior to the good faith hearing an issue arose with respect to the separate representation of members of the native title party claim group. I expressed the preliminary view that, despite policy considerations to the contrary, the Act appeared to permit the individual Wongatha applicants to be separately represented but invited the parties to make written submissions to enable the issue to be further considered. In the interests of proceeding with consideration of the good faith and other preliminary issues as expeditiously as possible I declined to make a final decision on this point prior to the good faith hearing and permitted counsel to appear and make written and oral submissions on behalf of four of the Wongatha applicants (Dimple Sullivan, Pearlie Wells, Thomasisha Passmore and Thelma O’Loughlin). In any event, at the time of the good faith hearing (13 December 1999) these persons were entitled to be separately represented as the combined claim had been removed from the Register and the individual pre-combination claims reinstated.
The Government party submitted that separate representation is not permitted by the Act. The GLC are of the same opinion and have recently filed written submissions. The grantee party did not contest the Tribunal’s preliminary view.
At the time of the future act determination application hearing on 14 February 2000 the only person who sought separate representation was Mrs Dimple Sullivan. By this time the combined Wongatha claim had been reinstated on the Register. I advised the parties that I had decided that the native title party is all of the registered native title claimants acting jointly or collectively. Individual applicants on a combined claim do not have a right of separate representation to make submissions contrary to those determined collectively by the claim group. Written reasons will be provided as soon as practicable.
The consequence of this decision is that Mrs Sullivan has no status as a party separate from the combined Wongatha claimants. Nevertheless, as I had only just arrived at the decision and because until 10 February 2000 (the date of re-registration of the Wongatha claim) Mrs Sullivan was a native title party by virtue of her own pre-combination claim, I permitted her representative (Mr Povey) to speak on her behalf at the hearing.
The hearing
The hearing was conducted in Perth. Witnesses’ statements and accompanying documents filed by the grantee party and documents filed by the Government party were received into evidence. No evidence was tendered by the native title party or Mrs Sullivan.
At the time of the good faith hearing all Wongatha applicants except Sadie Canning and Dimple Sullivan had signed a State Deed which is an agreement of the kind mentioned in s 31(b) of the Act. Following the hearing Sadie Canning (on 21 December 1999) and Dimple Sullivan (on 22 December 1999) also signed the State Deed. Had this remained the position the arbitration proceedings would have been terminated on lodgement of the State Deed with the Tribunal.
On 11 January 2000, the grantee party received a facsimile from Mrs Sullivan which the grantee party regarded as the withdrawal of her agreement. This correspondence was sent to the Tribunal on 1 February 2000. In it Mrs Sullivan says that she did not want to sign the agreement; and that Tjinitjarra people wanted to have their own lawyer and their own claim. On receipt of the correspondence, the Tribunal’s Case Manager telephone Mrs Sullivan and informed her that if she wished to withdraw from the Wongatha claim and make her own claim she would need to apply to the Federal Court.
Mrs Sullivan was informed of the date and time of the listing hearing on 9 February 2000 but she did not participate although arrangements for her to participate by telephone had been made by the Tribunal.
On 9 February 2000, the Tribunal wrote to Mrs Sullivan and:
confirmed that the hearing of the inquiry was to proceed in the following week and specified the time of commencement;
informed her that all the other parties were to seek a consent determination from the Tribunal that the mining leases be granted subject to conditions, the text of which was supplied to her; and
requested her to advise the Tribunal whether she intended to participate at the hearing and give evidence.
Mrs Sullivan did not personally participate in the hearing either in person or by telephone but Mr Povey appeared for her.
Request for an adjournment
At the hearing, the native title party sought an adjournment of two weeks to enable further discussions to be held with Mrs Sullivan to see if, after obtaining independent legal advice, she would agree to the terms of the State Deed and ancillary agreement.
Mr Povey supported the adjournment request. He submitted that Mrs Sullivan was not well, still had concerns about certain issues such as the protection of bush medicine and that further time should be allowed to sort things out. He also reiterated Mrs Sullivan’s desire to pull out of the North East Independent Body (which is an organisation covering the Wongatha claimants) and the Wongatha claim. Mr Murray Stubbs (Acting Chair of the NEIB), Ms Thomasisha Passmore and Mr Leo Thomas spoke in support of the adjournment.
The grantee party opposed any adjournment and advised the Tribunal that as no agreement had been reached with all Wongatha applicants, it wished to proceed to arbitration. It was no longer prepared to proceed by way of agreement. The Government party also opposed the adjournment.
I refused the adjournment request because:
the extensive negotiations which had taken place and in particular the attempts to resolve matters with Mrs Sullivan had not been successful and on the material before me, it was unlikely that they would be resolved if an adjournment was granted;
the grantee party was no longer prepared to resolve the matter by agreement; and
the Act makes it clear that future act determination applications should be resolved as expeditiously as practicable (s 36).
Consent determination
The parties then requested the Tribunal to make a consent determination that the mining leases be granted subject to certain agreed conditions. On behalf of Mrs Sullivan, Mr Povey did not formally oppose this course of action but I assume from Mrs Sullivan’s previous letter to the Tribunal that, as she was not prepared to agree to the mining leases being granted, she would not consent to a determination as she no longer wished to be part of the Wongatha claim.
I do not regard this as an impediment to making a determination agreed to by the parties. First, Mrs Sullivan is currently an applicant on the Wongatha claim and until she applies to amend the claim to withdraw from it and make her own application (which would need to be considered for registration) she has no status as a separate native title party but is part of the Wongatha claim group native title party, which has collectively agreed to the determination. Second, I also note that even when Mrs Sullivan had a right of separate representation (ie from 10 December 1999 to 10 February 2000) no contentions were filed by her and she did not indicate to the Tribunal that she wished to give evidence.
The Tribunal can make a determination with the consent of the parties if it regards it as appropriate (see for example Western Australia/Ted Coomanoo Evans (Koara People)/Quinton Tucker (Ngurludharra Waljan People)/Townson Holdings NL, NNTT WF98/6, Hon CJ Sumner, 11 December 1998 and Western Australia/Rita Dempster & Ors (Southern Noongar Families)/Paul Shiner & Ors, NNTT WF98/194, Prof Douglas Williamson QC, 3 June 1999).
In this case the following factors support the making of a determination.
There have been extensive negotiations about the issues and agreement on the consent determination has been reached between all the parties (albeit that Mrs Sullivan is a dissenting voice within the native title party claim group).
The evidence produced for the inquiry (including at the good faith hearing) clearly establishes that this is an appropriate case for a determination that the mining leases be granted.
The parties have been represented by legal practitioners.
I am mindful of the fact that the consent conditions fall short of the terms of the ancillary agreement between the grantee party and native title party. This is a regrettable situation but not one which can be resolved by the Tribunal. The right to negotiate provisions of the Native Title Act have been complied with and there have been extensive negotiations which have failed to produce a s 31 agreement which can be lodged with the Tribunal. In the circumstances the determination with conditions sought by the parties (with some drafting changes) is appropriate.
I was concerned that the draft conditions submitted did not adequately cover the situation where the mining leases were assigned, so as to ensure that any assignee was contractually bound to the native title party by the conditions (see discussion in Western Australia/Evans (Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5 and WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 at 47-49). The parties agreed to amendments to meet this concern.
Determination and Conditions
Determination
The determination of the Tribunal is that Mining Leases M38/675, M38/677, M38/690, M38/691 and M38/692 may be granted to Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd subject to the following conditions to be complied with by the Government party, the native title party and the grantee party.
Conditions
Access
Any right of the native title party to access or use the Tenements is not to be restricted except:
(a) in relation to those parts of the Tenements which are used for exploration or mining operations;
(b) for health, safety or security reasons relating to exploration or mining operations; or
(c) to give effect to the requirements of law or the requirements of any governmental authority.
Productive mining – information provisions
2.1 If the grantee party intends to submit to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity (a Notice of Intent), the grantee party will at least 28 days prior to submitting that Notice of Intent give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure.
2.2 The native title party may forward comments to the grantee party regarding the proposal within that 28 day period.
2.3Where there is a material change proposed to the Notice of Intent provided to the State Mining Engineer the grantee party must advise the native title party in writing of the proposed change.
Aboriginal Heritage
2.1In the event that the grantee party intends to make an application pursuant to s 18 of the Aboriginal Heritage Act 1972 in respect of an aboriginal site or sites situated on the Tenements, the grantee party will:
(a)notify the native title party of that intention at least 28 days prior to submitting the s 18 application; and
(b)during that 28 day period, consult with the native title party for the purpose of discussing methods for protecting or minimising the impact on the aboriginal site or sites the subject of the proposed s 18 application.
Assignment
4.1These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the Tenements).
4.2The grantee party must not assign the Mining Leases unless and until the assignee executes and delivers to the native title party a deed expressed to be for the benefit of the native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(i)to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the Tenements, or if it appoints a receiver to enter into possession of the Tenements; and
(ii)not to transfer the Mining Leases under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the native title party by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.
4.3Upon the delivery to the native title party of a duly executed deed in compliance with condition 4.2, the native title party must execute a deed expressed to be for the benefit of the assignee by which the native title party undertakes to be bound by these conditions.
4.4For the purpose of conditions 4.1 and 4.2, ‘grantee party’ includes any person to whom the mining lease is assigned.
Application of conditions
5.1 These conditions apply to only that part of the Tenements which remains subject to:
(a) the native title claim,
(b) another claim made by or on behalf of the native title party (either alone or in conjunction with others); or
(c) an approved determination that the native title party holds native title (either alone or in conjunction with other persons) in respect of that part of the Tenements.
5.2 These conditions only apply to the extent that the Mining Leases (including renewals) remain in force.
5.3 These conditions only apply to the grantee party to the extent that the grantee party remains the holder of one or more of the Mining Leases.
Notices
6.1 For the purposes of these conditions, any notice required to be given by the grantee party is deemed to have been duly served if it is delivered to the Goldfields Land Council at PO Box 10006, Kalgoorlie, Western Australia.
6.2 Notices or other communications under these conditions may be given by delivery, post or facsimile.
6.3 Any party may by notice in writing change its address or facsimile numbers.
6.4 A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.
General
The Government party must endorse on the Mining Leases the fact that the grantee party and any assignee is subject to the terms and conditions of a determination by the National Native Title Tribunal dated 15 February 2000.
Definitions
For the purposes of these conditions the following terms have the following meanings:
“assign” includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; “assignment” and “assignee” have corresponding meanings.
“aboriginal site” has the same meaning as in the Aboriginal Heritage Act 1972.
“exploration” includes the activities referred to in section 66 of the Mining Act 1978 and the activities referred to in the definition of “explore” in section 253 of the Native Title Act 1993.
“Government party” means the State of Western Australia.
“grantee party” means Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd.
“Mining Leases” means each of Mining Leases M38/675, M38/677, M38/690, M38/691 and M38/692 or other authority to mine granted to the grantee party in respect of the areas the subject of these mining leases.
“mining operations” has the same meaning as in the Mining Act 1978 and includes any works associated with mining operations including but not limited to the construction of access roads, pipelines, power lines, buildings, other plant and infrastructure and work preparatory to mining operations.
“native title claim” means the native title determination application (in its form from time to time) WAG6005/98, WC99/1 made by Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O’Loughlin and Sadie Canning.
“native title party” means:
(i) the registered native title claimants in respect of the native title claims and all persons on whose behalf the native title claims are made; and
(ii) in a case where an approved determination is made that the native title party holds native title to the whole part of the Tenements (either alone or in conjunction with other persons) means the native title holder.
“registered native title claimant” has the meaning given in the Native Title Act 1993, and if there is more than one person who constitutes the registered native title claimant, means the first named registered native title claimant, and in the event of an approved determination that the native title party holds native title to the area of the Tenements, means the registered native title body corporate in respect of the native title claim.
“Tenements” means the area of each of the Mining Leases.
The Hon C.J. Sumner
Member
16 February 2000
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