Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People/Western Australia/Cameco Australia Pty Ltd
[2008] NNTTA 68
•30 May 2008
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People/Western Australia/Cameco Australia Pty Ltd, [2008] NNTTA 68 (30 May 2008)
Application Nos: WF08/18 and WF08/19
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into Future Act Determination applications
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) on behalf of the Martu People (WC96/78) (First Applicant (WF08/19), Martu native title party)
-and-
Jeffrey James and Others on behalf of the Martu People (WC96/78)(Applicant (WF08/18) and Second Applicant (WF08/19), Martu native title party)
-and-
The State of Western Australia (Government party)
-and-
Cameco Australia Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place:Perth
Date:30 May 2008
Catchwords: Native title – future acts – application for determination for the grant of exploration licences – logistical difficulties – land access agreement – native title parties consent to the determination – consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner.
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People; Annette Kogolo and Others on behalf of the Ngurrara People/Western Australia/ New Standard Exploration NL, NNTT WF06/25 [2006] NNTTA 101 (3 August 2006), Hon C J Sumner.
Hearing date: Determination made on the papers
Representative of the Ms Jennifer Parks, Regional Director
grantee party: Cameco Australia Pty Ltd
Counsel for the Mr Malcolm O’Dell, Principal Legal Officer
Martu native title parties: Central Desert Native Title Services Limited
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Paola O’Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the future acts, namely the grant of exploration licences (‘the proposed licences’) under the Mining Act 1978 (WA) to Cameco Australia Pty Ltd (‘the grantee party’).
On or before 18 December 1996 – E45/1772, E45/1773 and E45/1774; and
On 19 May 1999 – E45/1970.
Included in each notice the Government party considered the grants of the proposed licences attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required under s 31 of the Act).
The details of the proposed licences are as follows:
WF08/18
E45/1773 comprises an area of 60.14 square kilometres and located 70 kilometres southerly of Telfer in the Shire of East Pilbara;
WF08/19
E45/1772 comprises an area of 33.64 square kilometres and located 65 kilometres southerly of Telfer in the Shire of East Pilbara;
E45/1774 comprises an area of 6.33 square kilometres and located 70 kilometres southerly of Telfer in the Shire of East Pilbara; and
E45/1970 comprises an area of 114.81 square kilometres and located 75 kilometres southerly of Telfer in the Shire of East Pilbara.
The native title parties with respect to these proceedings, and the extent to which each of their native title interests overlaps the proposed licences, are as follows:
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikuna) (Prescribed Body Corporate) (the ‘First Applicant’ Claim No. WC96/78) – 100 per cent overlap of proposed licence E45/1772, 1.7 per cent overlap of proposed licence E45/1774 and 0.1 per cent overlap of proposed licence E45/1970.
Jeffrey James and Others on behalf of the Martu People (the ‘Applicant’ and the ‘Second Applicant’ Claim No.WC96/78 – registered from 26 June 1996) – 100 per cent overlap of proposed licence E45/1773, 98.3 per cent overlap of proposed licence E45/1774, and 100 per cent overlap of the proposed licence E45/1970.
The Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikuna) (‘WDLAC’) is the nominated Prescribed Body Corporate for the First Applicant. On 27 September 2002, pursuant to section 87(3) of the Act and with the consent of the parties, the Federal Court of Australia made a Determination of Native Title regarding the application Jeffrey James & Others on behalf of the Martu People v the State of Western Australia and Others. A portion of the registered native title claimant application for WC98/78 remains undetermined.
The s 29 notices in relation to the proposed licences E45/1772, E45/1773 and E45/1774 were issued pursuant to the old Act, and overlapped by the claimant applications for the Martu People (WC96/78), Nomads (WC96/84) and Ngolibardu Peoples (WC96/9). The Nomads (WC96/84) were registered from 10 July 1996 to 29 January 1999 and the application withdrawn on 7 January 1999. The Ngolibardu Peoples (WC96/9) were registered from 2 February 1996 to 7 January 1999 and the application withdrawn on 7 January 1999.
As noted in para [2] above, based on the assertion of the Government party that the grant of the proposed licences attracted the expedited procedure the following expedited procedure objection applications were lodged with the Tribunal in response:
E45/1772, E45/1773, E45/1774
Form 4 Objection to Inclusion in an Expedited Procedure Application designated WO97/16 – lodged on 18 February 1997 by Pincher Rubin & Others on behalf of the Martu People (WC96/78). On 9 April 1997 by consent the determination of the Tribunal was the grant of the proposed licences E45/1772, E45/1773 and E45/1774 to Cameco Australia Pty Ltd were not acts attracting the expedited procedure.
E45/1970
Form 4 Objection to Inclusion in an Expedited Procedure Application designated WO99/156 – lodged on 23 May 2000 by Jeffrey James & Others on behalf of the Martu People (WC96/78). On 23 May 2000 by consent the determination of the Tribunal was that the grant of the proposed licence E45/1970 to Cameco Australia Pty Ltd is not an act attracting the expedited procedure.
Following the making of the above determinations, the right to negotiate under s 31 of the Act applied in respect of the proposed licences. Parties subsequently sought Tribunal assisted mediation pursuant to s 31(3) of the Act, to negotiate an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. State Deed). This application for mediation assistance was designated WM02/10.
On 22 April 2008, being a date more than six months after the s 29 notices were given, Central Desert Native Title Services Limited (‘CDNTS’) on behalf of both the determined and undetermined portions of the Martu claim lodged the following applications pursuant to s 35 of the Act for a future act determination under s 38 of the Act and requested that the future act determination be made by consent.
WF08/18
Jeffrey James and Others on behalf of the Martu People (WC96/78) as the Applicant in respect of the proposed licence E45/1773.
WF08/19
WDLAC as the First Applicant in respect of the proposed licences E45/1772, E45/1774 and E45/1970.
Jeffrey James and Others on behalf of the Martu People (WC96/78) as the Second Applicant in respect of the proposed licences E45/1772, E45/1774 and E45/1970.
On 20 May 2008 the Tribunal was provided with minutes of consent determination in relation to each of the s 35 applications in the following terms and executed by Mr Malcolm O’Dell on behalf of the Martu native title parties. The minutes of consent were subsequently executed by Ms Jennifer Parks on behalf of the grantee party and Mr Jeff O’Halloran on behalf of 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 grant of Exploration Licences E45/1772, E45/1774 and E45/1970 may be done.’
The minute of consent determination in relation to the proposed licence E45/1773 was made in identical terms.
The Tribunal has the 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 parties) are legally represented and those representatives have advised the Tribunal of the consent. CDNTS is the recognised representative body under the Act for both the Martu native title holders and the Martu native title claimants. 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 reasons for seeking a consent determination are set out in paragraph 10 of the applications and subsequently received as evidence in the form of the affidavit of Mr O’Dell, Principal Legal Officer with CDNTS, sworn on the 20th Day of May 2008. Mr O’Dell deposes the following:
‘I, Malcolm O’Dell, of the Central Desert Native Title Services Ltd, 170 Wellington Street, Perth in the State of Western Australia (“Central Desert”), make oath and say as follows:
1. Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.
2. I am the Principal Legal Officer at Central Desert and in that capacity I act for the applicant in native title determination application WAD 6110/98 – Martu (“NTP 1”) and this matter for Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) (ICN 4207) (“WDLAC”).
3. I have ongoing instructions from NTP 1 that where practical, in mining matters affecting native title determination application WAD 6110/98 – Martu, WDLAC shall negotiate and enter into agreements on behalf of NTP 1. Any instructions to give effect to any negotiated agreement may then be made on behalf of NTP 1 by WDLAC. These instructions are subject to WDLAC entering into such agreements in accordance with its rules.
4. On 8 April 2008 I received instructions from Katherine Hill, Legal Counsel at WDLAC as follows:
1.WDLAC has entered into an agreement with Cameco Australia Pty Ltd [‘Cameco’] entitled Land Access & Mineral Exploration Agreement dated 6th March 2007 [‘the First Agreement’].
2.The First Agreement was amended by a further agreement with Cameco entitled Agreement on Uranium Exploration Conditions & Technical Amendments to the Kintyre Land Access Agreement dated 11 January 2008 [‘the Second Agreement’].
3.The First Agreement and the Second Agreement together provide that WDLAC agrees, on behalf of both the Martu claim group and the Martu native title holders, to the grant of tenements ELA 45/1775, ELA 45/1772, ELA 45/1774, ELA 45/1773, ELA 45/1970, EL 45/1686, EL 45/1687, EL 45/2003 to Cameco and the conduct of certain activities by Cameco within the tenement area, subject to certain conditions.
4.WDLAC executed the First Agreement on 27th February 2007 in accordance with a resolution passed on 27th February 2007. I attended that meeting, gave legal advice to WDLAC about this agreement (then as an employee of the Ngaanyatjarra Council) and was present when that resolution was passed. I consider that the decision to execute that agreement was properly made.
5.WDLAC executed the Second Agreement on 11 January 2008 in accordance with a resolution passed on 24 October 2007. I attended that meeting and gave legal advice to WDLAC about this agreement and was present when that resolution was passed. I consider that the decision to execute that agreement was properly made.
6.ELA 45/1775 is 100% within the Martu determination area. WDLAC has therefore executed a State Deed in relation to the grant of this tenement and sent it to Cameco for execution and provision to DOIR.
7.The remaining tenements which are the subject of this brief are either 100% within the Martu claim area or partly within the Martu claim area and partly within the Martu determination area. We prefer to assist Cameco to obtain grant of these tenements by consent determination rather than State Deed because it will be logistically difficult to obtain the signatures of all the named applicants for the Martu claim.
5. By paragraph 3 of the above-mentioned instructions both WDLAC (on behalf of the Martu native title holders) and the Martu claim group have agreed to the grant of tenements ELA 45/1772, ELA 45/1773, ELA 45/1774, ELA 45/1970, to Cameco
6. By paragraph 5 of the above-mentioned instructions the decision to execute the agreement to grant the tenements to Cameco was ‘properly made’. I am informed by Katherine Hill that this means that the decision was made in accordance with the rules of WDLAC.
7. At paragraph 7 of the above mentioned instructions is a request that inter alia the grant of tenements ELA 45/1772, ELA 45/1773, ELA 45/1774, ELA 45/1970 be dealt with by a consent determination before the National Native Title Tribunal rather than by the execution of a State Deed, due to the severe logistical difficulties in obtaining the signatures of the applicant in native title determination application WAD 6110/98 – Martu.
8. In accordance with the above instructions from WDLAC and my ongoing instructions from the NTP 1, I am satisfied that WDLAC and NTP 1 understand and consent to the grant of tenements ELA 45/1772, ELA 45/1773, ELA 45/1774, ELA 45/1970 by consent determination under section 38 of the Native Title Act 1993 (Cth).’
Because logistical difficulties preclude the execution of an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. State Deed) by the Martu native title parties the Tribunal must consider whether the matter can be resolved by way of consent determination.
The Inquiry
The Tribunal has previously accepted statements by Mr O’Dell and the Ngaanyatjarra Council (now CDNTS) where logistical difficulties in obtaining signatures of a native title party to a State Deed have existed as a legitimate basis for seeking a consent determination (see for example Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner). Findings in paragraph [9] of that determination were adopted in Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People; Annette Kogolo and Others on behalf of the Ngurrara People/Western Australia/ New Standard Exploration NL, NNTT WF06/25 [2006] NNTTA 101 (3 August 2006), Hon C J Sumner.
Given the reasons for seeking a consent determination were explored in previous applications, and based on the evidence provided in the affidavit of Mr O’Dell I sought submissions from parties on the appropriateness of conducting the inquiry ‘on the papers’ (i.e. without a formal hearing). As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.
Findings
On the basis of the information contained in the affidavit of Mr O’Dell and the signed minutes of consent executed by all parties, I adopt the findings in paragraph [9] of the following determination: Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People; James and Others on behalf of the Martu People; Annette Kogolo and Others on behalf of the Ngurrara People/Western Australia/ New Standard Exploration NL, NNTT WF06/25 [2006] NNTTA 101 (3 August 2006), Hon C J Sumner). The findings are in relation to the responsibilities of the CDNTS as a representative body under the Act to protect the interests of native title parties, the manner in which the Tribunal is to carry out its responsibilities under s 109 of the Act and that for these reasons the Tribunal is entitled to accept as evidence the advice of CDNTS’s legal representative that the appropriate consent has been given by the Martu native title parties. I am satisfied that both Martu native title parties consent to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licences E45/1772, E45/1773, E45/1774 and E45/1970 to Cameco Australia Pty Ltd, may be done.
John Catlin
Member
30 May 2008
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