Simba Holdings Pty Ltd/Johnson Taylor and Others on behalf of Njamal/Western Australia
[2010] NNTTA 219
•22 December 2010
NATIONAL NATIVE TITLE TRIBUNAL
Simba Holdings Pty Ltd/Johnson Taylor and Others on behalf of Njamal/Western Australia, [2010] NNTTA 219 (22 December 2010)
Application No: WF10/32
IN THE MATTER of the Native Title Act1993 (Cth)
- and –
IN THE MATTER of an inquiry into a future act determination application
Simba Holdings Pty Ltd (the “grantee party”)
- and -
The State of Western Australia (the “Government party”)
- and -
Johnson Taylor and Others on behalf of Njamal (WC99/8) (the “native title party”)
FUTURE ACT DETERMINATION
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 22 December 2010
Catchwords: Native title – future act – application for determination for the grant of mining lease – named applicant not signed agreement – 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
Mining Act 1978 (WA)
Cases:Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd, NNTT WF08/12, [2008] NNTTA 35 (20 March 2008), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Representatives of the Ms Maimbo Chilala, Pilbara Native Title Service
native title party: Mr Rainer Mathews, Pilbara Native Title Service
Representative of the
grantee party: Mr Peter Hwang, Blake Dawson Waldron
Representatives of the Ms Faye Mitchell, Department of Mines and Petroleum
Government party: Mr Rod Wahl, State Solicitors Office
REASONS FOR FUTURE ACT DETERMINATION
Background
On 19 September, 2001, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of a future act, namely, the grant of Mining Lease M46/200 (the proposed lease) under the Mining Act1978 (WA) to Simba Holdings Pty Ltd (the grantee party).
The native title party in respect of this proceeding is Johnson Taylor, Kevin Allen, Maurice Coppin, Rodney Monaghan, Alice Mitchell, Lorraine Williams, Tony Taylor, Willie Jumbo and Jean Walker on behalf of Njamal (WC99/8 – registered from 3 June 1999) (the native title party).
The s 29 notice describes the area of the proposed lease as comprising 700.26 hectares and located 32 kilometres east of Nullagine in the Shire of East Pilbara. The registered claim of the native title party entirely overlaps the proposed lease. No other registered claims overlap the proposed lease.
On 5 October, 2010, being a date more than six months after the s 29 notice was given, an application was made pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed lease. The application requested that the future act determination be made by consent.
Paragraph 10(b) of the application states that a deed between the grantee party and Wedgetail Explorations NL (Wedgetail) was made on 1 October, 2001. Accompanying the application was a copy of that deed which states, at p. 4, that ‘Wedgetail intends to establish a mining and treatment operation near Nullagine’ and that the grantee party agrees ‘to grant Wedgetail a licence to carry out the operations on the tenements’. Further accompanying the application was an extract from the Australian Securities and Investments Commission which records the change of name of Wedgetail from Wedgetail to Millennium Minerals Limited. Accordingly, Millennium Minerals Limited is now the licensee of the proposed licence.
A minute of consent was provided subsequent to the lodging of the application, made in the following terms and executed in counterpart by Mr Rainer Mathews on behalf of the native title party, Mr Rod Wahl on behalf of the Government and Mr Duncan Young, Director of Simba Holdings Pty Ltd, on behalf of the grantee 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 have 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 46/200 may be done.’
Paragraphs 10 to 12 of the statutory declaration of Mr Rainer Mathews, Lawyer at YMAC acting for the native title party, dated 23 November, 2010, affirm execution of a Deed between Millennium Minerals Limited and the Njamal Native Title Applicants (‘Njamal Millennium Deed’) as follows:
‘10.I have reviewed the file relating to the Native Title Party and their relationship with Wedgetail Exploration (now Millennium Minerals). On the basis of the files I have reviewed, I understand that a deed between the Native Title Party and Wedgetail Exploration was authorised at a duly convened Community meeting. I have seen the Deed between Wedgetail Exploration NL and the Njamal Native Title Applicants (‘Njamal Millennium Deed’) which was authorised and executed by some members of the Native Title Party on 24 November 2005.
11.One member of the Njamal Applicant refused to sign the deed but in doing so was acting outside the authority bestowed on him by the Njamal people. He was subsequently removed as a member of the applicant. The deed was executed by all the other members of the applicant following recommendation by the working group and authorisation at a duly convened community meeting.
12.The Njamal Millennium Deed provides for, amongst other things, aboriginal cultural heritage protection, compensation, employment, education, training, contracting opportunities and for the grant of tenure to Millennium Minerals and related bodies corporate as defined in the Corporations Act 2001 (Cth), including, from time to time, the execution of deeds for the grant of mining tenements.’
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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
YMAC is the designated 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 inquiry findings
On the basis of the information contained in the application, affidavit, executed minute, and the consent of the parties, I am satisfied that I can adequately determine the matter ‘on the papers’.
Mr Mathews’ statutory declaration attests that, for a range of reasons, including logistical impediments and the members of the applicant refusing at various times to sign documents for unrelated reasons, it has not been possible to obtain fully signed State Deeds for the grant of this tenement.
In previous matters involving the native title party, the Tribunal has made a consent determination despite the refusal of persons named as the applicant for native title (and registered native title claimant) to sign a State Deed (see for example Johnson Taylor and Others on behalf of Njamal/Western Australia/M R Millwood Pty Ltd, NNTT WF08/12, [2008] NNTTA 35 (20 March 2008), Hon C J Sumner at [9]) when satisfied that the native title party collectively consents to the determination. Based on the evidence provided, I am satisfied that the native title party consents to the determination in the terms sought and further note that the Tribunal is entitled to accept the evidence of the YMAC legal representative on the consent given by the native title party when there is nothing before me to suggest the contrary. YMAC, as the recognised representative body under the Act, has responsibilities to protect the interests of the native title holders.
Determination
By consent, the determination of the Tribunal is that the act, namely, the grant of mining lease M46/200 to Simba Holdings Pty Ltd, may be done.
Neville MacPherson
Member
22 December 2010
0
2
0