Western Australia/Njamal/Palyku/Millenium Minerals Limited/David John Taylor
[2012] NNTTA 74
•28 June 2012
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Njamal/Palyku/Millenium Minerals Limited/David John Taylor, [2012] NNTTA 74 (28 June 2012)
Application No: WF12/11
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
The State of Western Australia (Applicant/Government party)
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Njamal (WC99/8) (Njamal native title party)
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Palyku (WC99/16) (Palyku native title party)
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Millenium Minerals Limited and David John Taylor (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 28 June 2012
Catchwords: Native title - future act - application for determination for the grant of mining leases – Njamal named applicants not signed state deed –native title party as a whole consents to the determination - consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 203
Mining Act 1978 (WA)
Cases:Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, [2006] NNTTA 14
Angus Abdullah and Others on behalf of Njamal/John van Uden/Western Australia, [2006] NNTTA 20
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, [2005] NNTTA 40
Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70
Foster and Others v Copper Strike Ltd and Another (2006) 200 FLR 182; [2006] NNTTA 61
Dimer and Sambo and Nudding and The State of Western Australia and Boyes [2003] NNTTA 117
Hearing date: Determined on the papers
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
Representative of the
Njamal native title party: Mr Rodney Nichole, Yamatji Marlpa Aboriginal Corporation
Representative of the
Palyku native title party: Ms Alisha Maharaj-MacLean, MacLean Legal
Representative of the
grantee party: Mr Simon Pooley, Millennium Minerals Limited
REASONS FOR FUTURE ACT DETERMINATION
Background
On the following dates, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act, NTA) of future acts, namely the grant of the following mining leases under the Mining Act 1978 (WA) (the proposed leases), located in the Shire of East Pilbara, to the following grantee parties:
- 29 November 2000: M46/245 comprising 15.64 hectares, located 57 kilometres east of Nullagine, to David John Taylor;
- 16 October 2002: M46/263 comprising 364.35 hectares, located 3 kilometres northeast of Nullagine, to Michael Ruane;
- 10 August 2005: M46/272 comprising 879.10 hectares, M46/275 comprising 896.44 hectares, M46/276 comprising 954.89 hectares, M46/277 comprising 239.90 hectares, M46/278 comprising 920.92 hectares, M46/279 comprising 928.40 hectares, M46/283 comprising 636.85 hectares and M46/303 comprising 636.86 hectares, located between 24 and 39 kilometres east of Nullagine, to Wedgetail Exploration NL;
- 14 December 2005: M46/430 comprising 200.22 hectares and M46/447 comprising 200.24 hectares, located between 15 and 16 kilometres east of Nullagine, to Wedgetail Exploration NL;
- 30 January 2008: M46/426, M46/427, M46/428 and M46/429 comprising a total of 2546.75 hectares, located 41 kilometres east of Nullagine, to Wedgetail Mining Ltd; and
- 12 March 2008: M46/432 comprising 528.84 hectares located 4 kilometres south of Nullagine, and M46/434 comprising 463.77 hectares located 34 kilometres east of Nullagine, to Wedgetail Mining Ltd
With the exception of M46/432, each of the proposed licences is 100 per cent overlapped by the Njamal native title claim (WC99/8 – registered from 3 June 1999). M46/432 is overlapped by the Njamal native title claim at 32.6 per cent and the Palyku native title claim (WC99/16 – registered from 30 March 1999) at 100 per cent. M46/263 is also overlapped by the Palyku native title claim at 40.5 per cent. The Njamal and Palyku are native title parties to these proceedings, to the extent that each overlap the proposed mining leases.
An Australian Securities and Investments Commission (ASIC) Certificate of Registration, issued 26 March 2007, notes Wedgetail Exploration NL changed its name to Wedgetail Mining Limited on 26 October 2006. A second ASIC Certificate of Registration issued 7 March 2008 notes Wedgetail Mining Limited changed its name to Millennium Minerals Limited on 7 March 2008.
On 26 April 2012, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Act for a determination under s 38 of the Act (the application). At paragraph 10 of the application the Government party states:
‘10.1The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth)...
10.2The Department has been advised by Millennium Minerals Ltd that a whole of claim Land Access Agreement has been entered into between Millenium Minerals Ltd and the Njamal People (Agreement) and also Millenium Minerals and the Palyku People.
10.3The Department has been advised by Millenium Minerals Ltd that pursuant to the Agreement the Njamal People have contractually agreed to not lodge any objections of any description to Millenium Minerals Ltd tenement applications.
10.4A State Deed for M46/432 has been lodged with the National Native Title Tribunal on 12/4/2012 for Millenium Minerals Ltd and the Palyku People. A State Deed for M46/263 has been signed by 3 of the 4 Palyku applicants and is in the process of being executed by the last applicant.’
At paragraph 9 of the application, the Government party states the “[c]urrent holder for M46/245 is David John Taylor. Millennium Minerals Ltd have purchased the tenement from David John Taylor in February 2007. The tenement will be transferred to Millennium Minerals Ltd on grant”.
A Mining Tenement Register Report for M46/263 attached to the application lists the current holder as Millennium Minerals Ltd via deemed transfer from Michael Ruane on 17 October 2002.
On 3 May 2012, I was appointed Member to conduct an inquiry into the application. The application was accepted on 29 May 2012 following an amendment to the application on 23 May 2012.
On 22 May 2012, parties were notified via email that, subject to acceptance of the application, a preliminary conference would be held on 5 June 2012. The Tribunal also requested:
‘the Njamal and Palyku native title parties to please advise before the preliminary conference whether they consent to a determination, and if so, to submit evidence of consent in the form of:
(a) s31(1)(b) agreement/s or State Deed/s (if not already lodged with the DMP and Tribunal); and/or
(b) A copy of any other agreement reached between the parties; and/or
(c) An affidavit from the legal representative advising he/she has been instructed by the native title party to consent to the grant of the proposed mining leases and is satisfied that there is sufficient evidence of consent.’
On 5 June 2012, a preliminary conference was held at which all parties were legally represented with the exception of the Njamal native title party. All present confirmed that a s 31(1)(b) agreement in the form of a State Deed for M46/432, signed by the Palyku native title party, the Government and grantee parties, had been lodged with the Tribunal on 12 April 2012. The Palyku native title party representative advised that a State Deed was also almost completed for M46/263 and would be lodged with the Tribunal shortly.
In relation to the Njamal native title party, no correspondence had been received from its legal representative prior to the preliminary conference. The grantee party representative advised that in 2005 a Land Access Agreement had been reached with the Njamal native title party which provided for the grant of existing and future mining tenement applications, including the proposed mining leases. The grantee party representative agreed to submit a copy of the Land Access Agreement following the conference. In the absence of any legal representation at the conference, nor any confirmation of consent or contest, I directed the Njamal native title party to advise the Tribunal and all parties of its position by 11 June 2012, and made directions for a s 39 inquiry requiring the Njamal native title party to lodge submissions by 25 June 2012, the grantee and Government parties to lodge its submissions in relation to the tenements which overlapped the Njamal claim area by 16 July 2012, and a hearing, if deemed necessary, on 23 July 2012.
Evidence and findings in relation to the Palyku native title party - M46/432 and M46/263
As noted above, on 12 April 2012, a State Deed for M46/432, signed by the Palyku native title party, the Government and grantee parties, was lodged with the Tribunal. On 9 June 2012, a State Deed for M46/263, signed by the Palyku native title party, the Government and grantee parties, was lodged with the Tribunal. I am satisfied that these State Deeds are evidence of the Palyku native title party’s consent to the determination.
Evidence in relation to the Njamal native title party
On 5 June 2012, the grantee party representative submitted a copy of a Land Access Agreement dated 2 December 2005 between Wedgetail Exploration NL and the Njamal native title party. Tribunal records indicate that as at 2 December 2005, the following persons were noted on the Register of Native Title Claims (RNTC) as living and comprising the Njamal native title party applicant:
- Mr Angus Abdullah, Mr Barry Taylor, Mr Biddy Norman, Mr Colin Malana, Mr Dan Murphy, Mr Eddie McPhee, Mr Ernie Johnson, Mr Jan Taylor, Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Peter Coppin, Mr Rodney Monaghan, Mr Teddy Allen, Ms Alice Mitchell and Ms Lorraine Williams
The Land Access Agreement is signed by all of the above persons with the exception of Mr Eddie McPhee, Mr Ernie Johnson and Mr Angus Abdullah.
Tribunal records indicate that between June 2005 and August 2006, a number of consent determinations were made by the Tribunal in relation to the Njamal native title party, because certain persons comprising the Njamal native title party Applicant had not executed the relevant State Deed and associated Ancillary Agreement. In most cases these persons were Mr Eddie McPhee, Mr Ernie Johnson and Mr Angus Abdullah (see for example: 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, [2005] NNTTA 40 (Njamal/BHP Billiton); Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, [2006] NNTTA 14 (Njamal/BGC Contracting); and Angus Abdullah and Others on behalf of Njamal/John van Uden/Western Australia, [2006] NNTTA 20 (Njamal/John van Uden)).
Tribunal records also indicate that the RNTC was subsequently amended following a Federal Court Order made under s 66B of the Act on 17 August 2007:
‘Johnson Taylor, Rodney Monaghan, Maurice Coppin, Alice Mitchell, Lorraine Williams, Kevin Allen, Tony Taylor, Willie Jumbo and Jean Walker (‘the replacement applicant’) do jointly replace all of the people currently comprising the applicant on the grounds that:
(a) P.C., Teddy Allen, Eddie McPhee, E.J., E.S, Dan Murphy, Biddy Norman, Jan Taylor, Barry Taylor, Colin Malana and Angus Abdullah are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it: and
(b) The replacement applicant is authorised by the claim group to make application and deal with matters arising in relation to it.’
On 10 June 2012, the following statement was submitted via email by Mr Rodney Nichole, Deputy Principal Legal Officer for the Yamatji Marlpa Aboriginal Corporation (YMAC), the representative body for the Pilbara region and the legal representative for the Njamal native title party:
‘The native title party confirms that it has entered into an Ancillary Agreement with the Grantee Party dated 2 December 2005 and consents to the grant of the Mining Leases by Consent Determination in terms of clause 2.3 of the Agreement and pursuant to Section 35 of the NTA.’
Clause 2 of the Land Access Agreement, entitled “Signing of State Deeds” notes:
2.3Where it is not practical for the Native Title Party to execute a State Deed it may, as an alternative, give its consent to a future act determination by the National Native Title Tribunal pursuant to s 35 of the NTA.’
In addition, clause 3 of the Land Access Agreement, entitled “Grant of Future Tenements” notes:
‘3.1In consideration of and subject to the terms of this Deed and provided that the Company complies with its obligations under this Deed, the Native Title Party will not, and will not encourage others to:
(a)Dispute, challenge or contest in any manner whatsoever the validity of the grant of any Future Tenement or Ancillary Tenure;
(b)Object pursuant to Section 24MD(6B)(d) of the NTA or under the Mining Act to the grant of Miscellaneous Licence that are future Tenements or Ancillary Tenure;
(c)Object to the State’s use of the expedited procedure as outlined in Section 32 of the NTA in respect of and Future Tenement or Ancillary Tenure.’
On 11 June 2012, a minute of consent determination in the following terms was submitted to the Tribunal executed, in counterpart, by Mr Rodney Nichole for the Njamal native title party, Mr Simon Durack, Director, for the grantee party, and Mr Jeff O’Halloran, State Solicitor’s Office, for the Government 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 has 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 Leases 46/245, 46/263, 46/272, 46/275, 46/276, 46/277, 46/278, 46/279, 46/283, 46/303, 46/426, 46/427, 46/428, 46/429, 46/430, 46/432, 46/434 & 46/447 may be done.’
On the basis of the above evidence, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
Findings in relation to the Njamal native title party
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. With reference to Njamal/BHP Billiton at [13-14], Njamal/BGC Contracting at [10] and Njamal/John van Uden at [10], I note that YMAC is the designated representative body under the Act for the Njamal native title party. As such, YMAC 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); and being satisfied that persons they represent, including native title parties, understand and consent to a course of action (s203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). In the absence of any evidence to the contrary, I accept that YMAC has been, and is satisfied that it has been, sufficiently instructed by the native title party to consent to the determination.
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)). Whilst this does not mean that the Tribunal can act without evidence, it does mean that it has some flexibility to make a determination by consent, once satisfied that the fundamental issue of whether the claim group has consented is established. Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the Applicant for a native title determination, acting jointly or collectively, and not each individually named person (see, for example, Dimer and Sambo and Nudding and The State of Western Australia and Boyes [2003] NNTTA 117; Foster and Others v Copper Strike Ltd and Another (2006) 200 FLR 182; [2006] NNTTA 61; and Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70).
On the basis of the evidence before me, and taking the above findings into account, I am satisfied that the Njamal native title party, as a whole, has agreed to the grant of the proposed mining leases and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of Mining Leases M46/245 to David John Taylor and M46/263, M46/272, M46/275, M46/276, M46/277, M46/278, M46/279, M46/283, M46/303, M46/426, M46/427, M46/428, M46/429, M46/430, M46/432, M46/434 and M46/447 to Millennium Minerals Limited, may be done.
Helen Shurven
Member
28 June 2012
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