Western Australia/Anaconda Nickel Ltd; Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd/Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells,...
[2001] NNTTA 58
•3 July 2001
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Anaconda Nickel Ltd; Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd/Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomashisha Passmore Thelma O’Loughlin, Sadie Canning, (WC99/1 – Wongatha People); Richard Guy Evans (WC95/1 – Koara People), [2001] NNTTA 58 (3 July 2001)
Application No: WF01/3
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
The State of Western Australia (Applicant/Government party)
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Anaconda Nickel Ltd
Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd (Grantee parties)
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Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomashisha Passmore Thelma O’Loughlin, Sadie Canning, (WC99/1 – Wongatha People)
- and -
Richard Guy Evans (WC95/1 – Koara People) (Native title parties)
FUTURE ACT DETERMINATION
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date:3 July 2001
Catchwords: Native title – future acts – application for a determination in relation to mining and general purpose leases – jurisdiction – no future act if native title extinguished – application dismissed in relation to general purpose leases as native title extinguished – consent determination that the mining leases may be granted with conditions.
Legislation:Native Title Act 1993 (Cth) ss 35, 38
Cases: Western Australia v Ward (2000) FCA 191, 99 FCR 316, 170 ALR 159
Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People) and Richard Guy Evans (Koara People), NNTT WF00/2, WF00/3, WF00/4 and WF00/5, Hon CJ Sumner, Mr J Sosso & Ms J Stuckey-Clarke, 8 December 2000
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder & Ors, NNTT WF01/2, Hon CJ Sumner, 22 June 2001
REASONS FOR FUTURE ACT DETERMINATION
Background
The State of Western Australia (the Government party) gave notice pursuant to s 29(1) of the Native Title Act 1993 (Cth) (the NTA) of the following future acts being the grant of mining leases and general purpose leases under the Mining Act 1978 (WA):
· mining leases M39/737 and M39/738 to Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd (a grantee party) – notification day 6 October 1999; and
· general purposes leases G39/13 and G39/14 for the purpose of waste dumps to Anaconda Nickel Ltd (a grantee party) – notification day 20 October 1999.
The following are native title parties in respect of these proceedings:
· Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomashisha Passmore Thelma O’Loughlin, Sadie Canning, (Claim No WC99/1) on behalf of the Wongatha People in relation to all four grants; and
· Richard Guy Evans (Claim No WC95/1) on behalf of the Koara People in relation to M39/738.
On 28 May 2001, being a date more than six months after the Government party gave notice of the future acts, the Government party applied pursuant to s 35 of the NTA for a future act determination under s 38 in relation to the proposed grants.
At a preliminary conference convened by the Tribunal on 13 June 2001 the Tribunal questioned whether it had jurisdiction to make a determination in relation to the two general purpose leases. The issue arises because in Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People) and Richard Guy Evans (Koara People), NNTT WF00/2, WF00/3, WF00/4 and WF00/5, Hon CJ Sumner, Mr J Sosso & Ms J Stuckey-Clarke, 8 December 2000 (Anaconda 3) the Tribunal found that it did not have jurisdiction to make a determination in relation to certain mining leases (including M39/686) which were situated on the Yundamindra pastoral lease (3114/0942). The proposed general purpose leases are situated adjacent to mining lease M39/686 in Pikes Paddock which the Tribunal found was fenced and therefore ‘enclosed’ and over which native title had consequently been extinguished by application of the decision of the Full Federal Court in Western Australia v Ward (2000) FCA 191, 99 FCR 316, 170 ALR 159. If native title has been extinguished there is no future act to attract the jurisdiction of the Tribunal as a future act is one which affects native title (s 233(1) NTA).
The proposed mining leases are on Glenorn pastoral lease (3114/0990) and because the lessee of the pastoral lease (Sturic Pty Ltd) holds Glenorn as a trustee for persons who have made a native title claim over the area (that is, some of the members of Wongatha native title party claim group in these proceedings) any extinguishment of native title is to be disregarded (s 47(1)(b)(ii) NTA). For this reason the Tribunal has jurisdiction to make a determination in relation to the proposed mining leases.
The preliminary conference was adjourned to give parties time to consider the jurisdictional issue raised by the Tribunal. At the adjourned preliminary conference on 27 June 2001, the grantee party contended that native title had been extinguished over the areas of the general purpose leases and that there was no jurisdiction to make a determination in relation to them. The Government and native title parties made no submissions in relation to the issue. My finding is that, consistent with the decision of the Tribunal in Anaconda 3, native title has been extinguished over the area of the general purpose leases and that the application in relation to them must be dismissed.
With respect to the proposed mining leases each party, through their legal representatives, consented in writing to a determination that the act may be done subject to certain agreed conditions. The Tribunal has recently confirmed that it can 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 (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder & Ors, NNTT WF01/2, Hon CJ Sumner, 22 June 2001). At the preliminary conference Mr Hyams acting for both native title parties on behalf of the Goldfields Land Council (the representative Aboriginal and Torres Strait Islander body under the NTA) said that he knew nothing to suggest that the making of a consent determination was inappropriate. The Tribunal is also aware that the agreed conditions are in substantially the same terms as those imposed in Anaconda 3.
The Tribunal’s decision and determination
(1) The application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth) in relation to general purpose leases G39/13 and G39/14 as the Tribunal is not entitled to deal with them.
(2)The Tribunal makes determinations that the acts namely the grant of mining leases M39/737 and M39/738 may be done with conditions in the terms set out in the Appendices I and II to these Reasons.
Hon C J Sumner
Deputy President
3 July 2001
NATIONAL NATIVE TITLE TRIBUNAL, WF01/3
REASONS FOR FUTURE ACT DETERMINATION, 3 JULY 2001
APPENDIX I
DETERMINATION AND CONDITIONS – MINING LEASE M39/737
Determination
The determination of the Tribunal is that mining lease M39/737 may be granted to Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd with conditions (1-11) to be complied with by the Government party, the grantee party, and by the Wongatha native title party.
Conditions
Access
Any right of the Wongatha native title party to access or use the mining lease is not to be restricted except in relation to those parts of the mining lease which are used for exploration or mining operations or for safety or security reasons relating to exploration or mining operations.
Notice of grant
The grantee party must give to the Wongatha registered native title claimants details of the grant of the mining lease, including the conditions and endorsements, within 21 days of the date on which it was granted.
Aboriginal Sites
3.1The grantee party must comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation.
3.2If the grantee party gives notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) it must forthwith serve a copy of that notice on the Wongatha registered native title claimants and the Government party, advising the Government party that any decision to consent or not to consent pursuant to s 18 must be notified to the Wongatha registered native title claimants.
3.3Within 30 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), the Wongatha registered native title claimants must inform the grantee party in writing if the Wongatha native title party wishes to be consulted concerning the proposed use of the land in the notice under s 18 of that Act. If so informed, the grantee party will promptly supply details of the proposed use and make itself available to meet with the Wongatha registered native title claimants to describe that proposed use within 21 days of the Wongatha registered native title claimants giving it notice. The Wongatha registered native title claimants must organise for interested members of the Wongatha native title party to attend the meeting.
3.4Where the Minister gives or declines to give consent under s 18 of the Aboriginal Heritage Act to the proposed use of the land the subject of the notice and recommendation, the grantee party must forthwith inform the Wongatha registered native title claimants of the decision.
Productive mining - information and environment provisions
4.1If the grantee party submits to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity (a Notice of Intent) on the mining lease, then at the same time the grantee party must give to the Wongatha registered native title claimants:
(a)a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations, and
(b)information on the following matters (if not included in the proposal):
(i)the likely timetable for, and duration of, the mining operations;
(ii)the likely effect of the proposed mining operations on the environment and proposals to minimise the environmental impact of such mining operations; and
(iii)details of any proposed environmental monitoring program.
4.2Where there is a material change proposed to the proposal (the Notice of Intent) provided to the State Mining Engineer the grantee party must, prior to implementing the change, advise the Wongatha registered native title claimants in writing of those proposed changes.
4.3The State Government must provide a copy of these conditions to the State Mining Engineer and to the Environmental Protection Authority.
Assignment
5.1These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the mining lease).
5.2The grantee party must not assign the mining lease unless and until the assignee executes and delivers to the Wongatha registered native title claimants a deed expressed to be for the benefit of the Wongatha native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(i)to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the mining lease, or if it appoints a receiver to enter into possession of the mining lease; and
(ii)not to transfer the mining lease under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the Wongatha native title party by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.
5.3For the purpose of conditions 5.1 and 5.2, ‘grantee party’ includes any person to whom the mining lease is assigned.
Application of conditions
6.1These conditions apply only to that part of the mining lease which remains subject to:
(i)a claim made by or on behalf of the Wongatha native title party (either alone or in conjunction with others); or
(ii)an approved determination that the Wongatha native title party, or some of them, hold native title (either alone or in conjunction with other persons) in respect of that part of the mining lease.
6.2These conditions apply only while the mining lease (including renewals) is in force.
6.3These conditions do not apply to the grantee party if it ceases to be the holder of the mining lease and an assignee of the mining lease executes a deed as required by condition 5.2. This condition does not relieve the grantee party of any liability incurred under these conditions prior to it ceasing to be the holder of the mining lease.
Notices
7.1For the purpose of these conditions, the Wongatha registered native title claimants (from time to time) are authorised to give or receive any notice or other document on behalf of the Wongatha native title party
7.2Notices or other communications under these conditions may be given by delivery, post or facsimile and each party must nominate a postal address and facsimile address for that purpose. Until a party has made such a nomination, its address for service will be taken to be:
Wongatha Claimants
c/o Goldfields Land Council Aboriginal Corporation
67-71 Dugan Street
KALGOORLIE WA 6433Glenmurrin Pty Ltd
Murrin Murrin Holdings Pty Ltd
C/-Anaconda Nickel Ltd
Level 12, Quayside
2 Mill Street
Perth WA 6000
Minister for State Development on behalf of the State of Western Australia
Department of Minerals and Energy
100 Plain StreetPERTH WA 6000
7.3Any party may by notice in writing change its addresses or facsimile numbers.
7.4A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.
General
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents, servants and contractors.
The Government party must make conditions 1, 3.1, 3.2, 4.1 and 5.2 conditions of the mining lease.
The Government party must endorse on the mining lease the fact that the grantee party and any assignee is subject to the terms and conditions of a determination by the National Native Title Tribunal dated 3 July 2000.
Definitions
For the purpose of this determination and conditions the following terms have the following meanings:
“assign” includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; "assignment" and "assignee" have corresponding meanings.
“exploration” includes the activities referred to in s 66 of the Mining Act 1978 (WA) and the activities referred to in the definition of “explore” in s 253 of the Native Title Act 1993 (Cth).
“Government party” means the State of Western Australia.
“grantee party” means Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd.
“mining lease” means mining lease M39/737
“mining operations” means:
(i)mining operations as defined in the Mining Act 1978 (WA) other than any activity associated with exploration activities; and
(ii)any work associated with mining operations including construction of access roads, buildings and work preparatory to mining operations.
Reference to a “site” imports the meaning given by s 39(1)(a)(v) of the Native Title Act 1993 (Cth).
“Wongatha native title claim” means the native title determination application identified with the National Native Title Tribunal number WC99/1.
“Wongatha native title party” means:
(i)all persons on whose behalf the Wongatha native title claim was made; and
(ii)any person on whose behalf the Wongatha native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons).
“Wongatha registered native title claimants” means:
(i)the applicants on the Wongatha claim identified with the National Native Title Tribunal number WC99/1; and
(ii)in the event of an approved determination that the Wongatha applicants hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons), means the registered native title body corporate
NATIONAL NATIVE TITLE TRIBUNAL, WF01/3
REASONS FOR FUTURE ACT DETERMINATION, 3 JULY 2001
APPENDIX II
DETERMINATION AND CONDITIONS – MINING LEASE M39/738
Determination
The determination of the Tribunal is that mining lease M39/738 may be granted to Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd with conditions (1-11) to be complied with by the Government party, the grantee party, and by the Wongatha and Koara native title parties.
Conditions
Access
Any right of the Wongatha and Koara native title parties to access or use the mining lease is not to be restricted except in relation to those parts of the mining lease which are used for exploration or mining operations or for safety or security reasons relating to exploration or mining operations.
Notice of grant
The grantee party must give to the Wongatha and Koara registered native title claimants details of the grant of the mining lease, including the conditions and endorsements, within 21 days of the date on which it was granted.
Aboriginal Sites
3.5The grantee party must comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation.
3.6If the grantee party gives notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) it must forthwith serve a copy of that notice on the Wongatha and Koara registered native title claimants and the Government party, advising the Government party that any decision to consent or not to consent pursuant to s 18 must be notified to the Wongatha and Koara registered native title claimants.
3.7Within 30 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), the Wongatha and Koara registered native title claimants must inform the grantee party in writing if the Wongatha and Koara native title parties wishes to be consulted concerning the proposed use of the land in the notice under s 18 of that Act. If so informed, the grantee party will promptly supply details of the proposed use and make itself available to meet with the Wongatha and Koara registered native title claimants to describe that proposed use within 21 days of the Wongatha and Koara registered native title claimants giving it notice. The Wongatha and Koara registered native title claimants must organise for interested members of the Wongatha and Koara native title parties to attend the meeting.
3.8Where the Minister gives or declines to give consent under s 18 of the Aboriginal Heritage Act to the proposed use of the land the subject of the notice and recommendation, the grantee party must forthwith inform the Wongatha and Koara registered native title claimants of the decision.
Productive mining - information and environment provisions
4.1If the grantee party submits to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity (a Notice of Intent) on the mining lease, then at the same time the grantee party must give to the Wongatha and Koara registered native title claimants:
(c)a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations, and
(d)information on the following matters (if not included in the proposal):
(iv)the likely timetable for, and duration of, the mining operations;
(v)the likely effect of the proposed mining operations on the environment and proposals to minimise the environmental impact of such mining operations; and
(vi)details of any proposed environmental monitoring program.
4.2Where there is a material change proposed to the proposal (the Notice of Intent) provided to the State Mining Engineer the grantee party must, prior to implementing the change, advise the Wongatha and Koara registered native title claimants in writing of those proposed changes.
4.4The State Government must provide a copy of these conditions to the State Mining Engineer and to the Environmental Protection Authority.
Assignment
5.1These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the mining lease).
5.2The grantee party must not assign the mining lease unless and until the assignee executes and delivers to the Wongatha and Koara registered native title claimants a deed expressed to be for the benefit of the Wongatha and Koara native title parties by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(iii)to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the mining lease, or if it appoints a receiver to enter into possession of the mining lease; and
(iv)not to transfer the mining lease under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the Wongatha and Koara native title parties by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.
5.3For the purpose of conditions 5.1 and 5.2, ‘grantee party’ includes any person to whom the mining lease is assigned.
Application of conditions
6.1These conditions apply only to that part of the mining lease which remains subject to:
(iii)a claim made by or on behalf of the Wongatha or Koara native title parties (either alone or in conjunction with others); or
(iv)an approved determination that the Wongatha or Koara native title parties, or some of them, hold native title (either alone or in conjunction with other persons) in respect of that part of the mining lease.
6.2These conditions apply only while the mining lease (including renewals) is in force.
6.3These conditions do not apply to the grantee party if it ceases to be the holder of the mining lease and an assignee of the mining lease executes a deed as required by condition 5.2. This condition does not relieve the grantee party of any liability incurred under these conditions prior to it ceasing to be the holder of the mining lease.
Notices
7.3For the purpose of these conditions, the Wongatha and Koara registered native title claimants (from time to time) are authorised to give or receive any notice or other document on behalf of the Wongatha and Koara native title parties
7.4Notices or other communications under these conditions may be given by delivery, post or facsimile and each party must nominate a postal address and facsimile address for that purpose. Until a party has made such a nomination, its address for service will be taken to be:
Wongatha Claimants
c/o Goldfields Land Council Aboriginal Corporation
67-71 Dugan StreetKALGOORLIE WA 6433
Koara Claimants
c/o Goldfields Land Council Aboriginal Corporation
67-71 Dugan StreetKALGOORLIE WA 6433
Glenmurrin Pty Ltd
Murrin Murrin Holdings Pty Ltd
C/- Anaconda Nickel Ltd
Level 12, Quayside
2 Mill Street
Perth WA 6000
Minister for State Development on behalf of the State of Western Australia
Department of Minerals and Energy
100 Plain StreetPERTH WA 6000
7.3Any party may by notice in writing change its addresses or facsimile numbers.
7.4A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.
General
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents, servants and contractors.
The Government party must make conditions 1, 3.1, 3.2, 4.1 and 5.2 conditions of the mining lease.
The Government party must endorse on the mining lease the fact that the grantee party and any assignee is subject to the terms and conditions of a determination by the National Native Title Tribunal dated 3 July 2000.
Definitions
For the purpose of this determination and conditions the following terms have the following meanings:
“assign” includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; "assignment" and "assignee" have corresponding meanings.
“exploration” includes the activities referred to in s 66 of the Mining Act 1978 (WA) and the activities referred to in the definition of “explore” in s 253 of the Native Title Act 1993 (Cth).
“Government party” means the State of Western Australia.
“grantee party” means Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd.
“Koara native title claim” means the native title determination application identified with National Native Title Tribunal number WC95/1.
“Koara native title party” means:
(i)all persons on whose behalf the Koara native title claim was made; and
(ii)any person on whose behalf the Koara native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons); and
“Koara registered native title claimants” means:
(i)the applicants on the Koara claim identified with the National Native Title Tribunal number WC95/1; and
(ii)in the event of an approved determination that the Koara applicants hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons), means the registered native title body corporate
“mining lease” means mining lease M39/738.
“mining operations” means:
(iii)mining operations as defined in the Mining Act 1978 (WA) other than any activity associated with exploration activities; and
(iv)any work associated with mining operations including construction of access roads, buildings and work preparatory to mining operations.
Reference to a “site” imports the meaning given by s 39(1)(a)(v) of the Native Title Act 1993 (Cth).
“Wongatha native title claim” means the native title determination application identified with the National Native Title Tribunal number WC99/1.
“Wongatha native title party” means:
(iii)all persons on whose behalf the Wongatha native title claim was made; and
(iv)any person on whose behalf the Wongatha native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons).
“Wongatha registered native title claimants” means:
(iii)the applicants on the Wongatha claim identified with the National Native Title Tribunal number WC99/1; and
(iv)in the event of an approved determination that the Wongatha applicants hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons), means the registered native title body corporate.
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