Quantum Holdings Pty Ltd/Western Australia/Martha Borinelli and Others on behalf of the Yued People - [2007] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Quantum Holdings Pty Ltd/Western Australia/Martha Borinelli and Others on behalf of the Yued People, [2007] NNTTA 34 (30 April 2007)

Application No: WF06/81

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

Quantum Holdings Pty Ltd (applicant/grantee party)

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The State of Western Australia (Government party)

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Martha Borinelli and Others on behalf of the Yued People (WC97/71) (native title party)

FUTURE ACT DETERMINATION

Tribunal: Daniel O’Dea

Place: Perth
Date: 30 April 2007

Catchwords: Native title – future act – application for determination for the grant of mining lease – certain named applicants not signed agreements – native title party as a whole consents to the determination – terms of consent determination – consent determination that the act may be done

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109, 203

Cases: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
Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner
Evans v Western Australia (1997) 77 FCR 193
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date: 13 April 2007

Representatives of the Mr Rod Wahl, State Solicitor’s Office

Government party: Ms Janice Goodwin, Department of Industry and Resources

Representative of the Mr Stefan Le Roux, Mr Ettienne Van Tonder

native title party: South West Aboriginal Land and Sea Council

Representatives of the Ms Pamela Kaye

grantee party: DLA Phillips Fox

REASONS FOR FUTURE ACT DETERMINATION

Background

On 25 February 2004, 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 M70/1161 (‘the proposed lease’) under the Mining Act 1978 to Quantum Holdings Pty Ltd (‘the grantee party’).
The proposed lease is 52.66 hectares in extent and is located in the Shire of Dandaragan, 12 kilometres northerly of Jurien Bay. It is 100 per cent overlapped the Yued registered native title claim (WC97/71, registered from 22 August 1997).
The native title party with respect to these proceedings is as follows:
· Martha Borinelli, Arnold Franks, Charmaine Walley, Dianne Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder and a deceased person whose name is withheld for cultural reasons on behalf of the Yued People (WC97719) (‘the native title party’).
On 7 November 2006, 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 of the Act.
Paragraph 10 of the application lodged by the grantee party states:
“The parties have held a number of meetings, beginning in January 2004. They have also sought mediation assistance from the NNTT. The Grantee Party provided the Native Title Party with a draft agreement on 21 July 2006, but has been advised by the Native Title Party’s representative that the benefits offered are unacceptable. It is therefore seeking to have the matter resolved by way of a future act determination.”
Directions were set by Member O’Dea at a pre-inquiry hearing convened on 24 November 2006. Subsequently, on 29 November 2006, Mr Etteinne van Tonder, barrister and solicitor, representative of the native title party, advised the Tribunal in writing that he sought amendment of the directions to allow the South West Aboriginal Land and Sea Council the opportunity to take instructions from the native title party. He advised that formal instruction could be obtained from the native title party at a working party meeting scheduled to take place in January or February 2007 ‘at the earliest’.
On 1 December 2006 Mr van Tonder wrote to the Tribunal requesting a 10 week extension of time in order for the native title party representative to obtain instructions. Based on oral advice from Ms Pamela Kaye, representative of the grantee party, on 4 December 2006 that this application for an extension of time would be opposed, I convened a directions hearing on 6 December 2006. At this hearing, after hearing submissions from the parties, I extended the directions by 14 days and encouraged the parties to meet with a view to reaching agreement.
Parties subsequently consented to a one day extension of the first date contained in the directions made on 6 December 2006 to allow time for the native title party and grantee party to meet on Monday 19 February 2007 to address several outstanding issues.
On 10 April 2007 the grantee party forwarded to the Tribunal a minute of consent, executed by all parties, in the following terms:

‘MINUTE OF CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)

AGREED FACTS
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 have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3.The Native Title Party and the Grantee Party agree to be bound by the terms of the Ancillary Agreement between the Native Title Party and the Grantee Party dated 5 April 2007 (despite it not having been executed by all registered claimants).
AGREED CONSENT
4.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 the mining lease 70/1161 may be done.’

The Tribunal has before it a copy of the following agreement:
· Jurien Bay Mining Project Agreement Quantum Holdings Pty Ltd Yued People (‘the ancillary agreement’)

The ancillary agreement has been executed by the grantee party, a SWALSC representative and five of the eight living persons named as the native title party applicant namely Mr Diane Mippy, Ms Jenny Mogridge, Mr Mal Ryder, Ms Martha Borinelli and Ms Charmaine Walley.

Because an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. the State Deed) has not been executed by all the persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination. 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 their consent. SWALSC is the recognised representative body under the Act for the native title party and Mr Stefan Le Roux, solicitor, has represented them in these proceedings. 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

On 13 April 2007, a hearing was conducted at which all parties were represented and confirmed their consent in the terms sought. Mr Stefan Le Roux, representative of the native title party, stated he was satisfied SWALSC had been properly instructed by the native title party to consent to the determination. At this hearing Ms Kaye also sought directions that the contents of the ancillary agreement not be disclosed to parties other than the parties to the agreement. Only the Tribunal received the document for the purposes of this determination and it will not disclose the contents of the document to anyone and will return all copies both hard and electronic to Ms Kaye as far as that is possible.
The issues raised by the refusal of persons named as part of the applicant to execute documents giving effect to agreements reached with the Yued native title party has been considered by the Tribunal on a number of occasions (see for example Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006) Hon C J Sumner (‘Enmic’) at [7]–[8] and Western Australia/ Martha Borinelli and Others on behalf of the Yued People/ Westralian Gas and Power Limited, [2007] NNTTA 31 (5 April 2007) Hon C J Sumner at [8]–[9]). In those matters the Tribunal was satisfied, on the basis of documentary and oral evidence presented by SWALSC, the claimants consented to the act being done. The ‘native title party’ is not each individual person named as part of the applicant and registered native title claimant but the applicant and registered native title claimant acting collectively as representatives and agents for the claimant group and individual persons named as part of the applicant are not entitled to separate representation (Monkey Mia at [19]–[21]). If the Tribunal is satisfied that the applicants and registered native title claimants (or more accurately the persons named as part of the applicant and registered native title claimant) collectively consent, then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made.
In the present case I am satisfied by the evidence that the native title party as a group consent to the determination. The native title party has been represented in this matter throughout by the recognised representative Aboriginal/Torres Strait Islander body for the area (SWALSC) and solicitors engaged by them. As the recognised representative body under the Act, SWALSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representatives on whether the appropriate consent has been given by the native title party.

The terms of the consent determination

The major issue in this matter, as in Enmic, is whether the Tribunal can make a determination in the terms of the minute of consent referred to above.
The Tribunal has a broad power to impose conditions subject to some limitations, the most specific of which is that the Tribunal cannot impose a condition for payments to be made to a native title party based on the amount of profits made, income derived or things produced by the grantee party as a result of the doing of the future act (s 38(2); see discussion in Evans v Western Australia (1997) 77 FCR 193 at 213–214). In Enmic the Hon C J Sumner stated at [10] ‘[t]he Tribunal is aware that ‘Ancillary Agreements’ between native title parties and grantee parties (i.e. not involving the Government party) in Western Australia sometimes contain terms which could not be made conditions of a determination. If the Tribunal’s determination were to have the effect of making the terms of the agreement conditions of the determination, then it would not be appropriate to make the proposed determination without seeing the Ancillary Agreement. ... If the Tribunal is not aware of an agreement’s contents, there is the possibility that a determination could be made which is not within the Tribunal’s power’.
There is a provision in the ancillary agreement presently under consideration for payment of compensation based on the amount of mining resource produced (clause 4.1.2). It would not be within the power of the Tribunal in my view to make such a provision a condition of the determination. Again adopting the reasoning in Enmic ‘[t]he next issue is whether the consent minute has this effect. The draft made the determination subject to the undertakings of the grantee party and native title party to ‘be bound’ by the terms of the Ancillary Agreement. It is in similar terms to a consent determination made in 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. In that matter the parties submitted that they were not seeking to make the actual terms of the agreement a condition of the Tribunal’s determination and that making the determination subject to a condition that the parties are bound by it did not have this effect. Reference was made to the broad discretion which the Tribunal has to make a determination by reference to the criteria in s 39 of the Act and its scope and purpose (Evans v Western Australia (1997) 77 FCR 193 at 213; Re Koara People (1996) 132 FLR 73 at 93). Taking account the consent of all three negotiation parties the Tribunal accepted that a determination subject to a condition that the parties were ‘bound’ by the agreement was within power on the basis that the condition did not make the terms of the agreement themselves conditions of the determination’ (Hon C J Sumner at [12]).
Following consideration of these issues in Enmic, the parties in that matter executed and lodged with the Tribunal a minute of consent containing two parts, the first referring to ‘agreed facts’ and the second to ‘agreed determination’. Under the ‘agreed facts’ set out in that minute, the native title party agreed to be bound by the ancillary agreement and the grantee party confirmed that it was bound by the agreement despite it not having been executed by all the named claimants.
In the present matter, the minute of consent executed and lodged with the Tribunal is substantially similar to that in Enmic. The agreed facts recorded in para 3 state that the native title party and grantee party agree to be bound by the terms of the ancillary agreement ‘despite it not having being executed by all registered claimants’.
The consent determination sought is thus a bare determination which avoids the potential difficulty of imposing a condition which it may be outside the Tribunal’s power to impose. Instead of imposing a condition making the determination subject to the ancillary agreement, the agreement between the native title party and the grantee party are recorded in these reasons. I accept that this agreement has been made and I am satisfied that all parties consent to the determination.