Portman Iron Ore Ltd/Alan Jones and Others on behalf of the Ballardong People/Western Australia
[2003] NNTTA 123
•12 December 2003
NATIONAL NATIVE TITLE TRIBUNAL
Portman Iron Ore Ltd/Alan Jones and Others on behalf of the Ballardong People/Western Australia, [2003] NNTTA 123 (12 December 2003)
Application No: WF03/21
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 Ltd (Applicant/grantee party)
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Alan Jones and Others on behalf of the Ballardong People (WC97/56) (the Ballardong native title party)
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Dennis Sambo and Others on behalf of the Central West Goldfields People (WC99/29) (the Central West Goldfields native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 12 December 2003
Catchwords: Native title – future act – application for determination for the grant of mining leases – consent determination that the act may be done – existing ancillary agreement dealing with further future acts.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 39(4)
Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001
Portman Iron Ore Limited/Alan Jones and Others on behalf of the Ballardong Peopl; Carlene Sceghi and Others on behalf of the Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 Hon C J Sumner, 8 July 2002
Hearing date: 10 December 2003
Counsel for the
Grantee party: Mr Geoff Gishubl, Blake Dawson Waldron, Barristers & Solicitors
Solicitor for the
South West Aboriginal Ms Christine Cooper, Solicitor, South West Aboriginal Land and
Land & Sea Council: Sea Council
Representative of the Mr Rod Wahl, Crown Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 16 October 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of mining leases M77/1038, M77/1039 and M77/1040 (‘the Mining Leases’) under the Mining Act 1978 (WA) to Portman Iron Ore Ltd (‘the grantee party’).
There are two relevant native title parties in these proceedings, 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 Robin Yarran, Mr Saul Yarran, Mr Tim Riley, Mr William Riley, Ms Dianne Taylor and Ms Winnie McHenry on behalf of the Ballardong People (WC97/56) (‘the Ballardong native title party’); and
Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper on behalf of the Central West Goldfields People (WC99/29)(‘the Central West Goldfields native title party’).
On 20 November 2003, 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 in relation to the Mining Leases 77/1038, 77/1039 and 77/1040. The grantee party seeks a determination that the acts be done by consent.
The National Native Title Tribunal (‘the Tribunal’) has power to make a determination with the consent of the parties. While 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 (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001), the absence of legal representation for the native title party does not preclude a consent determination being made provided the Tribunal is satisfied that the native title party has properly consented. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate.
On 10 December 2003, the Tribunal conducted a hearing. Mr Geoff Gishubl appeared for the grantee party along with Mr Peter Winter, Tenement and Land Administration Manager for Portman Iron Ore Ltd. Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party. Ms Christine Cooper represented the South West Land and Sea Council, the designated Representative Body under the Act for the area covered by the Ballardong claim. Two of the named applicants on the Ballardong claim, Mr Rickie Nelson and Mr Doug Nelson, were also present.
Findings relating to the Central West Goldfields native title party
A State Deed (i.e. a s 31 agreement signed by all three negotiation parties) which permits the grant of all three Mining Leases has been executed on behalf of the Central West Goldfields native title party and the Government and grantee parties. It was lodged with the Tribunal on 1 October 2003 and bears the number MO668. This Deed has been signed by Mr Dennis Sambo one of the named applicants on the Central West Goldfields claim and Ms Kathy Burns, Future Acts Solicitor at the Goldfields Land and Sea Council (the designated Representative Body under the Act for the area covered by the Central West Goldfields claim). I also had in evidence before me a document provided by the grantee party entitled ‘Power of Attorney, Central West Native Title Claimants Re Area Indigenous Land Use Agreement with Portman Iron Ore Ltd’ prepared by solicitors Blake Dawson Waldron. The Power of Attorney is signed by all the named claimants for the Central West Goldfields native title party and nominates as joint power of attorney Dennis Sambo and the person engaged by the Goldfields Land and Sea Council from time to time to act as their future act solicitor (currently identified in the document as Katherine Amanda Burns) to act in the name of the Central West Goldfields claimants to do anything which the claimants are obliged to do in accordance with the Agreement between Portman Iron Ore Ltd, the Central West Goldfields claimants and the Ballardong People dated 12 July 2002. This Agreement is entitled ‘Area Indigenous Land Use Agreement’ (‘the Land Use Agreement’) and is referred to in more detail below. I am satisfied that in using the Power of Attorney to execute the State Deed, Dennis Sambo and Kathy Burns were giving effect to the obligations of the Central West Goldfields native title party under the Land Use Agreement to agree to the grant of the Mining Leases.
Also, before the Tribunal was a Minute of Consent Determination in the following terms:
‘MINUTE OF CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)
1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth).
2.The Government Party, the Grantee Party and the Ballardong and Central West Goldfields Native Title Parties have complied with the requirements of section 31(1)(b) of the Native Title Act 1993 (Cth).
3.The Government Party, the Grantee Party and the Ballardong and Central West Goldfields Native Title Parties consent to a determination under section 38 of the Native Title Act 1993 (Cth) that the “acts” being the grant of mining leases 77/1038, 77/1039 and 77/1040, may be done’
The Minute has been signed by Kathy Burns of Goldfields Land and Sea Council on behalf of the Central West Goldfields native title party, Geoff Gishubl, Solicitor on behalf of the grantee party and Mr Trevor Creweel, Crown Solicitor’s office on behalf of the Government party. It has not been signed by a representative for the Ballardong native title party.
No one appeared at the hearing on behalf of the Central West Goldfields native title party but they were notified of it and Ms Burns confirmed to the Tribunal’s Case Manager that they had no objection to the determination sought. I accept that the Central West Goldfields native title party consent to the determination that the act can be done.
Findings in relating to the Ballardong native title party
On 8 July 2002 I made a determination that a number of acts, being the grant of certain mining leases to Portman Iron Ore Ltd and in some cases to Portman and an associated company, could be done (Portman Iron Ore Limited/Alan Jones and Others on behalf of the Ballardong People and Carlene Sceghi and Others on behalf of the Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 Hon C J Sumner, 8 July 2002) subject to a condition that the grantee party execute and be bound by the Land Use Agreement (referred to above). At the relevant time the Ballardong Native Title party was represented by Mr Paul Tolcon of Mony De Kerloy, Barristers and Solicitors. Mr Tolcon filed an affidavit that said that a Deed of Undertaking and Acknowledgement had been signed by all the Ballardong named applicants except Mr Robin Yarran, in which they acknowledged that they entered into the Land Use Agreement unconditionally after receiving legal advice. I was satisfied in that determination that the Ballardong native title party had as a group consented to the determination in the terms requested by the grantee party.
Following that determination the grantee party executed the Land Use Agreement a copy of which has been provided as evidence in this matter.
An affidavit of Peter Arthur Winter, Tenement and Land Administration Manager of the grantee party, affirmed on 1 December 2003, attached relevant documents and asserted that the terms of the Land Use Agreement obliged the native title parties to agree to the grant of the Mining Leases the subject of these proceedings. From my perusal of the Land Use Agreement and there being no evidence to the contrary I accept that it remains in force and applies to an area of land which includes the area the subject of the Mining Leases.
Clause 3.3 of the Land Use Agreement defines “New Titles” as including the grant of interests under the Mining Act 1978 (WA) to the grantee party after the date of the agreement primarily for “Project Purposes”. “Project Purposes” is defined to mean any purpose directly or indirectly connected with existing or potential iron ore Exploration or Mining Operations or any infrastructure facilities, services or activities (including secondary processing) necessary or, in the opinion of Portman, desirable to give effect to any of those purposes. Mr Winter deposes that the grantee party intends to use the area of the Mining Leases for mine site infrastructure and security relating to the proposed development of the Windarling iron ore deposits located on mining leases 77/999 to 77/1001 inclusive (three of the mining leases the subject of the determination in WF02/16) which are adjacent to the proposed Mining Leases to the north. He says that infrastructure including waste dumps, access corridors, haul roads, camps and other incidental facilities are anticipated.
Mr Winter asserts and I accept that:
the Mining Leases are New Titles as defined in the Land Use Agreement; and
under clause 4.2 of the Land Use Agreement both the Ballardong and Central West Goldfields native title parties consent and agree to the grant, creation and doing of all New Titles and agree to do all things necessary or desirable to enable the grant or creation of New Titles which means that they have agreed to the grant of the Mining Leases.
I have already referred to the evidence of consent to the grants of the Mining Leases of the Central West Goldfields Native Title party, and note their compliance with clause 4.2 of the Agreement by their execution of a State Deed .
The evidence in relation to the Ballardong native title party is that the South West Aboriginal Land and Sea Council have attempted to arrange the execution of a State Deed in accordance with the requirements of the Land Use Agreement to enable the grant of the Mining Leases but that:
two of the named applicants are deceased (although both have signed the Land Use Agreement);
Mr Cedric Anderson and Mr Robert Riley were not able to be located (although both have signed the Land Use Agreement); and
Mr Robin Yarran and Mr Reg Yarran have declined to sign the State Deed (although Mr Reg Yarran has signed the Land Use Agreement).
Despite there not being a legal representative for the Ballardong native title party in these proceedings I consider that there is nothing inappropriate in making a consent determination in the terms sought. I note when the Land Use Agreement was negotiated and executed in July 2002 the Ballardong native title party had the benefit of legal advice and representation and that the terms of the Land Use Agreement oblige the native title parties to consent to the grant of the Mining Leases. I also have regard to the fact that at the hearing two of the named applicants Rickie and Doug Nelson had no objection to the determination sought.
In making this determination I have also taken into account that:
pursuant to s 39(1)(f) of the Act the existence of the Land Use Agreement is a relevant factor;
the Land Use Agreement provides for monetary payments to be made to the native title parties as compensation for any interference with their native title rights and interests; and
there is an ‘Aboriginal Heritage Protection Agreement’ in place between the grantee and native title parties for the protection and management of Aboriginal heritage which covers the area of the Mining Leases and will help to ensure the protection of sites of particular significance to the native title parties in accordance with their traditions which is one of the criteria to be taken into account under the Act in making a determination (s 39(1)(a)(vi)).
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining leases ML77/1038, ML77/1039 and ML77/1040 to Portman Iron Ore Ltd may be done.
Hon C J Sumner
Deputy President
12 December 2003
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