Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People (WC97/56) and Carlene Sceghi and Others on behalf of Central West Goldfields People (WC99/29)/Western Australia

[2002] NNTTA 134

NATIONAL NATIVE TITLE TRIBUNAL

Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People (WC97/56) and Carlene Sceghi and Others on behalf of Central West Goldfields People (WC99/29)/Western Australia, [2002] NNTTA 134 (8 July 2002)

Application No:        WF02/16

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

Portman Iron Ore Limited (Grantee Party)

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Alan Jones and Others on behalf of Ballardong People (WC97/56)
and
Carlene Sceghi and Others on behalf of Central West Goldfields People (WC99/29) (Native Title Parties)

- and -

The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Hon CJ Sumner, Deputy President
Place:  Perth

Date:  8 July 2002

Catchwords:    Native title - future act - application for determination for the grant of mining leases - consent determination that the act may be done with conditions.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Dates:                 8 July 2002

Counsel for the

Grantee Party:                Mr Geoff Gishubl, Blake Dawson Waldron, Barristers & Solicitors

Counsel for the Central  Ms Kathy Burns, Goldfields Land & Sea Council

West Goldfields Native
Title Party:

Counsel for the               Mr Paul Tolcon, Mony De Kerloy, Barristers & Solicitors

Ballardong Native Title

Party:  

Solicitor for the               Mr Gerhard Beukes, South West Aboriginal Land & Sea Council

South West Aboriginal   

Land & Sea Council:     

Counsel for the

Government party:         Mr Mark Di Renzo, Crown Solicitor’s Office

Representative of the     Mr Phil Mirabella, Department of Mineral & Petroleum Resources

Government party:

REASONS FOR FUTURE ACT DETERMINATION

1. On 26 July 2000, the State of Western Australia (‘the Government Party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant under the Mining Act 1978 (WA) of mining leases M77/988, M77/989, M77/990 to Portman Iron Ore Limited; and mining leases M77/993, M77/994, M77/995, M77/996, M77/997, M77/998, M77/999, M77/1000 & M77/1001 to Angang Australia Pty Ltd and Portman Iron Ore Limited.

2. On 5 September 2001, the Government party gave notice under s 29 of the Act of future acts namely the grant of mining leases M77/959, M77/960, M77/961 under the Mining Act 1978 (WA) to Portman Iron Ore Limited. Portman Iron Ore Limited has the authority to act on behalf of Angang Australia Pty Ltd in connection with the matter. A reference to ‘the Grantee Party’ in the Determination and Reasons is, as appropriate, a reference to both Angang Australia Pty Ltd and Portman Iron Ore Limited.

3. The native title parties in respect of these proceedings are:

• Alan Jones, Alec Yarran, Cedric Anderson, Doug Nelson, Reg Hayden, Reg Yarran, Ricky Nelson, Robert Riley, Robin Yarran, Saul Yarran, Tim Riley, William Riley, Dianne Taylor, Winnie McHenry (Ballardong People - WC97/56); (‘the Ballardong Native Title Party’); and

• Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt, Victor Cooper (Central West Goldfields People - WC99/29), (‘the Central West Goldfields Native Title Party’).

1. On 3 July 2002 being a date more than six months after the s 29 notice was given Portman Iron Ore Limited made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to M77/959, M77/960, M77/961, M77/988, M77/989, M77/990, M77/993, M77/994, M77/995, M77/996, M77/997, M77/998, M77/999, M77/1000 and M77/1001. The application sought a determination by consent of all parties. 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) 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

2. On 8 July 2002, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the futures act may be done in terms of the minute submitted by the Grantee Party. The Ballardong People were represented by Mr Paul Tolcon, of counsel (Mony De Kerloy, Barristers and Solicitors), with Mr Gerhard Beukes a solicitor with the South West Aboriginal Land & Sea Council in attendance, and the Central West Goldfields People by Ms Kathy Burns a solicitor with the Goldfields Land & Sea Council, the Government party by Mr Mark Di Renzo of the Crown Solicitor’s Office, and the grantee party by Mr Geoff Gishubl, Blake Dawson Waldron, Barristers & Solicitors. Both the South West Aboriginal Land and Sea Council and the Goldfields Land & Sea Council are recognised representative Aboriginal/Torres Strait Islander bodies under the Act.

3. Paragraph 10 of the s 35 application said:

   ‘A statement that the parties have not been able to reach agreement about the act within 6 months of the notice being given.

   Although the parties have reached agreement as to the doing of the acts and the Ballardong and Central West native title claim groups as a whole have given their consent, one registered Ballardong native title claimant, Mr Robin Yarran, has failed to execute the State Deed allowing the acts to be done.  The following is a summary of the relevant facts.

   (a)Portman has been engaged in negotiations with the Ballardong and Central West peoples in relation to Portman's proposal to significantly expand its iron ore mining operations near Koolyanobbing, on the land the subject of the proposed acts from around July 2000.

   (b)The Central West people were at all material times represented by, and obtained legal advice from, the Goldfields Land and Sea Council.

   (c)Each of the Ballardong and Central West peoples formed a negotiation working group, to negotiate with Portman.

   (d)Portman provided a first draft of a comprehensive land use agreement relating to the project and the proposed grants of, among others, the acts, to a joint meeting of the Ballardong and Central West groups, on 22 and 23 November 2000.

   (e)The Noongar Land Council facilitated some meetings between Portman and the Ballardong people in July and September 2000.  However, as of 25 January 2001, the Ballardong people (through an appointed and authorised Ballardong working group) appointed independent solicitors, Messrs Mony de Kerloy, to represent and advise them in relation to the negotiations with Portman.  Portman provided financial resources to enable that advice to be given.

   (f)Portman, the Ballardong and Central West negotiating groups and their respective advisers, met on numerous occasions during late 2000 and throughout 2001 to discuss Portman's proposal for a comprehensive land use agreement to facilitate the development of its project and, among other things, the doing of the acts.  Several drafts of the proposed agreement (which included the provisions of an indigenous heritage protection agreement) were exchanged between the parties and their legal advisers during that time.

   (g)During the course of negotiations, Portman provided commercial information concerning its existing and proposed operations to a mineral economist engaged by the Central West people.  The mineral economist provided commercial advice to the Central West and Ballardong peoples, to which Portman is not privy.  Portman provided financial resources to enable that advice to be given.  Portman also provided financial assistance to enable the Ballardong people and Central West people to obtain specialist taxation advice in relation to the proposed agreement.

   (h)The Central West and Ballardong negotiating groups and their legal advisers jointly met with Portman in Kalgoorlie on December 13 2001 ("December 2001 meeting").

   (i)At the December 2001 meeting, Portman, the Ballardong and the Central West representatives reached a non-binding agreement in principle in relation to the major commercial terms of the proposed comprehensive land use agreement.  Those terms included substantial benefits to the native title claim groups for the doing of the acts, provisions relating to the compensation of any loss or diminution of native title rights arising from the doing of the acts and provision for employment, training and other benefits.  

   (j)The parties also agreed in principle at the December 2001 meeting that they should conclude an agreement for the management and protection of indigenous heritage values within an area of land including the land the subject of the acts.  The Portman and the native title parties subsequently executed an agreement entitled "Aboriginal Heritage Protection Agreement" dated 28 June 2002 ("Heritage Protection Agreement").

   (k)During the months following the December 2001 meeting, documentation of the proposed comprehensive land use agreement was progressed through several meetings between Portman and the members of the Ballardong and Central West Peoples' negotiation working groups and their advisers.

   (l)The form of the proposed comprehensive land use agreement was finalised in principle by May 2002 so that it could be for considered for execution by the Ballardong and Central West peoples.

   (m)Portman is informed by Mr Darryl Pearce of the South West Aboriginal Land and Sea Council (“SWALSC”) that:

   (i)A meeting of the full Ballardong claimant group was convened on 23 May 2002 at York, Western Australia upon notice to all interested Ballardong people.

   (ii)The 23 May meeting was convened in accordance with the established custom of the Ballardong people.

   (iii)The 23 May meeting was attended by, among others Mr Darryl Pearce of SWALSC, Mr Paul Tolcon of Mony de Kerloy and numerous members of Ballardong claimant group including Mr Robin Yarran.

   (iv)Copies of the proposed land use agreement were distributed and its meaning and effect explained.

   (v)The Ballardong claimant group approved entry into the proposed comprehensive land use agreement and, among other things, the doing of the acts.

   (vi)A further meeting of the Ballardong people was convened on 30 May 2002 to confirm the views of some Ballardong people who had been unable to attend the 23 May meeting in person.  Those present at the 30 May meeting endorsed the outcome of the 23 May meeting.

   (vii)All of the registered Ballardong claimants (namely Mr Alan Jones, Mr Alec Yarran, Mr Cedric Anderson, Mr Doug Nelson, Mr Reg Hayden, Mr Reg Yarran, Mr Rickie Nelson, Mr Robert Riley, Mr Saul Yarran, Mr Tim Riley, Mr William Riley, Ms Dianne Taylor and Ms Winnie McHenry) with the exception of Mr Robin Yarran have executed the comprehensive land use agreement entitled "Area Indigenous Land Use Agreement" between Portman, the Central West People and the Ballardong People ("the Land Use Agreement") and a State Deed ("the State Deed") authorising the doing of the acts without conditions.

   (n)All of the Central West Goldfields registered claimants, namely, Ms Carlene Sceghi, Mr Dennis Sambo, Ms Dorothy Dimer, Ms Elizabeth Sambo, Ms Linda Champion, Ms Nancy Wilson, Ms Sue Wyatt and Mr Victor Cooper have executed the Land Use Agreement and the State Deed.

4. The Tribunal also received into evidence an affidavit of Doug Nelson, one of the applicants on the Ballardong Native Title Claim. Mr Nelson has been involved in the negotiations with the Grantee Party for the last 18 months or so. He says that a State Deed (tri-partite agreement of all negotiation parties of the kind mentioned in s 31(1)(b) of the Act) to authorise the grant of the mining leases and an Area Indigenous Land Use Agreement(‘the Land Use Agreement’) have been executed by all applicants on the Ballardong claim except Robin Yarran, whose opposition was not known until the meeting of 23 May 2000. Mr Nelson says that the facts set out in paragraphs 10(a) and 10 (c) to (m) of the application are true and correct. Mr Nelson’s affidavit also attached a copy of the front page and contents page of the Land Use Agreement, which indicates that it is a comprehensive agreement covering the topics that are customarily found in agreements dealing with mining on land that is subject to a native title claim. Mr Nelson says that he and 14 of the other 16 applicants on the claim agree to a consent determination that the mining leases may be granted.

5. The Tribunal also received the following documents. 

• A copy of the Land Use Agreement executed by the Central West Goldfields applicants and by all of the Ballardong applicants (except Robin Yarran) and two State Deeds, one executed by all the Central West Goldfields applicants and the other executed by all the Ballardong applicants except Robin Yarran.

• A copy of an Aboriginal Heritage Protection Agreement between the Grantee Party and the Central West and Ballardong Native Title Parties, which is an existing agreement applicable to the mining leases for the protection and management of Aboriginal Heritage values.

• An affidavit sworn by Darryl Pearce, Chief Executive Officer of the South West Aboriginal Land & Sea Council which supports the evidence of Mr Doug Nelson in relation to the meeting of claimants on 23 May 2002.

• An affidavit of Paul Tolcon, which supports the evidence of Mr Doug Nelson.  Mr Tolcon also says that a Deed of Undertaking and Acknowledgment has been signed by all Ballardong applicants except Mr Robin Yarran in which they acknowledge they have entered into the Land Use Agreement unconditionally after receiving advice from Mony De Kerloy.  Mr Tolcon has formed the belief that the Ballardong People except Robin Yarran want the grants made subject to the Land Use Agreement being honoured.

1. I find that the facts set out in paragraph 10 of the application are established and am satisfied that the Ballardong Native Title Party as a group consent to the determination in the terms requested by the Grantee Party. The Ballardong Native Title Party have been represented in this matter throughout by the designated representative Aboriginal/Torres Strait Islander body under the Act (initially the Noongar Land Council, now the South West Aboriginal Land & Sea Council) or solicitors engaged by them. Mr Tolcon confirmed at the hearing the claim group as a whole consented to the determination. Despite the refusal of one registered native title claimant to sign the State Deed and the Land Use Agreement I am satisfied that the determination can be made. This matter is not dissimilar to Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001, where the Tribunal made a determination that the act may be done even though two of the 38 registered native title claimants refused to sign but the evidence established that the claim group as a whole consented.

2. I am also satisfied by the evidence produced that the Central West Goldfields Native Title Party as a group consent to the determination in the terms requested by the Grantee Party. They have been represented in this matter throughout by the designated representative Aboriginal/Torres Strait Islander body under the Act and solicitors engaged by them. Ms Burns confirmed at the hearing the claim group consented to the determination.

3. The Heritage Protection Agreement will ensure that the grant of the mining leases will not affect any sites of particular significance to the native title party in accordance with their traditions which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. The determination of the Tribunal is that the acts, being the grant of mining leases M77/959, M77/960, M77/961, M77/988, M77/989, M77/990, M77/993, M77/994, M77/995, M77/996, M77/997, M77/998, M77/999, M77/1000 and M77/1001 can be done subject to the condition that upon:

1. delivery to the Grantee Party of the counterpart of the Land Use Agreement partially executed by the Ballardong Native Title Party; and

2. the undertakings of the Ballardong and Central West Goldfields Native Title Parties to be bound by the Land Use Agreement upon its execution by the Grantee Party (despite it not having been executed by Mr Robin Yarran),

the Grantee Party execute and be bound by the Land Use Agreement.

Hon CJ Sumner
Deputy President

8 July 2002