Venus Metals Corporation Limited/Irwin Tasman Lewis & Ors on behalf of the Widi Mob/Western Australia

[2013] NNTTA 87

NATIONAL NATIVE TITLE TRIBUNAL

Venus Metals Corporation Limited/Irwin Tasman Lewis & Ors on behalf of the Widi Mob/Western Australia [2013] NNTTA 87 (15 July 2013)

Application No:        WF2013/0004

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Venus Metals Corporation Limited (Applicant/grantee party)

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Irwin Tasman Lewis, Darryl Noel Woods, Name withheld for cultural reasons, Julie Lewis, Bill Lewis, Gregory Denis Martin, Gloria May Lewis (WC1997/072) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                  Helen Shurven, Member

Place:  Perth

Date:  15 July 2013

Catchwords:  Native title – future act – application for determination in relation to grant of mining lease – member of the applicant refuses to consent for reasons unrelated to the agreement – native title party as a whole consents to the determination – consent determination that the act may be done

Legislation:Native Title Act1993 (Cth) ss 29, 31, 38, 61(2), 62A, 109, 253

Cases:Placer (Granny Smith) Pty Ltd v Western Australia (2000) 163 FLR 87, ('Granny Smith')

Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, (‘Monkey Mia’)

Moore v Mungeranie (2005) 193 FLR 62, (‘Mungeranie’)

Foster v Copperstrike (2006) 200 FLR 182, ('Copperstrike')

Hearing Date:  8 July 2013

Representatives of the       Mr Jeff O’Halloran, State Solicitor’s Office

Government Party:           Mr Rod Wahl, State Solicitor’s Office

Ms Faye Mitchell, Department of Mines and Petroleum

Ms Jan Mason, Department of Mines and Petroleum

Representative of the    Ms Julie Lewis

native title party:               

Representative of the        Ms Christine Lovitt, Gilbert+Tobin Lawyers

grantee party:  Mr Kumar Arunachulam, Venus Metals Corporation Limited

REASONS FOR FUTURE ACT DETERMINATION

1. On 5 October 2011, the State of Western Australia (‘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 M59/742 (‘the proposed licence’) to Venus Metals Corporation Limited (‘the grantee party’) under the Mining Act 1978 (WA)

2. The proposed licence comprises an area of 4,773.82 hectares located 16 kilometres south-east of Yalgoo in the Shire of Yalgoo. The entire area is subject to the registered native title claim of the Widi Mob (WC1997/072 – registered from 12 December 2011). No other registered claim overlaps the proposed licence.

3. The registered native title claimants for the Widi Mob are Irwin Tasman Lewis, Darryl Noel Woods, Julie Lewis, Bill Lewis, Gregory Denis Martin and Gloria May Lewis (‘the native title party’).  Another person is listed on the Register of Native Title Claims as being part of the applicant group; however, that person’s name has been omitted for cultural reasons.

4. On 5 June 2013, being a date more than six months after the notification day, the grantee party applied to the Tribunal to make a determination under s 38 of the Act, in relation to the proposed licence. The application states that the grantee party has entered into an ancillary agreement with the native title party, under which the native title party has consented to the grant of the proposed licence, but one of the members of the applicant group has refused to sign the ancillary agreement or any s 31 deed relating to it.

5. I accepted the application on 21 June 2013.

6. On 25 June 2013, the grantee party circulated a proposed Minute of Consent Orders to the native title party, the Government party and the Tribunal. The Minute has been signed in counterpart by: Ms Lewis on behalf of the native title party; Ms Lovitt of Gilbert+Tobin on behalf of the grantee party; and Mr O’Halloran of the State Solicitor’s Office on behalf of the Government party. The Minute is made in the following terms:

   MINUTE OF PROPOSED ORDERS TO BE MADE BY CONSENT

   “CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT (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. 3(1)(b) of the Native Title Act 1993.

   3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under s. 38 of the Native Title Act 1993 that the “act” being the grant of Mining Lease 59/742, may be done.”

Legal Principles

1. Though the native title party may arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit, within the framework of the Act, only the person or persons comprising the applicant are authorised to bring a native title application or deal with matters arising from it (see in particular ss 61(2) and 62A of the Act). Part 2 of Division 3 of the Act, which concerns future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate (in the case of an area where a determination of native title has been made) or a Registered Native Title Claimant (where a native title application has been accepted for registration but not yet determined), (see s 29(2) of the Act). Relevantly, s 253 of the Act defines the Registered Native Title Claimant as ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims in relation to a claim to hold native title in relation to land or waters.’ However, the Tribunal has accepted that the native title party is not each registered native title claimant but the registered native title claimants acting collectively as representatives and agents of the claim group: Granny Smith at [50]-[56]; Monkey Mia at [19]; Mungeranie at [45].

2. Accordingly, in circumstances where one or more of the persons comprising the applicant are unable or unwilling to execute an agreement of the kind referred to in s 31(1)(b), the Tribunal has regarded itself as entitled to make a determination on the basis that the native title party as a whole consents to the doing of the act, unless there is a credible suggestion that such an approach is not appropriate: see Monkey Mia at [19]; Mungeranie at [63]. In determining whether or not that consent has been properly given, the Tribunal will have regard to all of the circumstances, including whether the agreement has been endorsed by the wider claim group or is of a type to which the claim group has previously consented, and whether the applicant’s failure to give effect to the claim group’s consent was related to the terms of the agreement or the decision-making process adopted by the claim group: see Copperstrike at [30]-[31]. The Tribunal will also have regard to whether the native title party was legally represented or had access to legal advice in the course of negotiations, whether by a Native Title Representative Body (‘NTRB’) or other entity: see Monkey Mia at [19]; Mungeranie at [58].

The inquiry

1. The relevant extract from the Register of Native Title Claims lists the native title party’s address for service as being care of Julie Lewis, who is also listed as one of the registered claimants. In the course of the Tribunal’s correspondence with parties following the lodgement of the application, it became apparent that the native title party is not currently represented by a NTRB or other legal practitioner, and that its affairs are managed by Ms Lewis. As the application was made on the basis that one of the registered claimants had not been willing to enter into a s 31(1)(b) agreement in respect of the proposed licence, and it appeared that the native title party would not be legally represented during the proceedings, I decided to conduct a hearing by way of a preliminary conference to determine whether a consent determination was appropriate in all the circumstances. The conference was convened on 8 July 2013 and was attended by: Ms Lewis for the native title party; Ms Lovitt and Mr Arunachulam of the grantee party; Mr Wahl of the State Solicitor’s Office; and Ms Mason and Ms Mitchell of the Department of Mines and Petroleum, for the Government party.

2. The following matters were established during the conference:

   ·The person who has refused to sign the agreement has made it clear that he does not intend to enter into any agreement of the kind referred to in s 31(1)(b), for this matter or any other matter.

   ·The claim group as a whole consent to the grant of the proposed licence on the terms set out in the agreement.

   ·The agreement is based on a standard agreement prepared by a legal practitioner for the native title party for use in such matters.

   ·The grantee party met with representatives of the native title party, including senior elders and members of the applicant group, on three occasions. Two of these meetings were held in the grantee party’s offices, and the third was held on site.

   ·Decisions of the claim group are made following consultation with senior elders. The two people regarded as the most senior members of the claim group are also members of the applicant group, and have accepted the agreement.

   ·The person refusing to sign the agreement is not a senior member of the claim group.

   ·Ms Lewis was elected by the claim group to be their representative in future act matters.

3. At the conclusion of the conference, I informed the parties that I was prepared to accept the statements made during the conference without the need for parties to provide further documentary evidence to the Tribunal (as envisioned by s 109 of the Act).

Findings

1. Based on the matters addressed at the preliminary conference, I find that the claim group as a whole consents to the grant of the proposed licence on the terms set out in the agreement. Insofar as one of the persons comprising the applicant has refused to give effect to that consent, I accept that his refusal to do so is entirely unrelated to the merits of the agreement or the decision-making process adopted by the claim group. There is no suggestion that the person refusing to sign the agreement represents any particular interests within the claim group. It is clear that senior elders of the claim group consent to the agreement and that while the native title party is not presently represented by a legal practitioner, the agreement is based on a standard template prepared by a legal practitioner for use by the native title party. On that basis, I am prepared to infer that the native title party has been advised of its rights and interests in relation to similar proposals and has in fact entered into comparable agreements in the past.    

2. In light of these findings, I am satisfied that the native title party, acting collectively, agree to the doing of the proposed act and consent to a determination in the terms sought. There is no credible suggestion that it would be inappropriate to make a determination on that basis.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of mining lease M59/742 to Venus Metals Corporation Limited, may be done.

Helen Shurven
Member
15 July 2013