Widi Mob v Dene Thomas Solomon & Glenn Frederick Solomon - [2015] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Widi Mob v Dene Thomas Solomon & Glenn Frederick Solomon and Another [2015] NNTTA 63 (21 December 2015)

Application No: WF2015/0025

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Widi Mob (WC1997/072) (native title party)

- and –

Dene Thomas Solomon & Glenn Frederick Solomon (grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal: Mr JR McNamara

Place: Brisbane

Date: 21 December 2015

Catchwords: Native title – future act – proposed grant of mining lease – parties consent to grant – parties unable to formalise s 31(1)(b) agreement – Tribunal to take into account any agreement on issues relevant to determination – the act may be done

Legislation: Native Title Act 1993 (Cth), ss 31, 35, 37, 39

Cases:Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’)

Representative of the Mr Dene Solomon

grantee party

Representative of the Ms Julie Lewis
native title party

Representatives of the     Ms Sarah Power, State Solicitor’s Office
Government party           Ms Faye Mitchell and Mr Dennis Jacobs, Department of Mines
  and Petroleum

REASONS FOR DETERMINATION

This decision concerns an application made to the National Native Title Tribunal seeking a determination that mining lease 70/1323 may be granted. The parties agree to the grant but have been unable to finalise an agreement to that effect.
The lease is approximately 1.34 square kilometres in size and is located approximately 47 kilometres south easterly of Morawa, Western Australia. The lease was applied for by the proponent, Dene Thomas Solomon and Glenn Frederick Solomon. The native title claim of the Widi Mob (WC1997/072) wholly overlaps the lease and there are no other native title parties for the relevant area.
Once the State gives notice of its intention to grant a mining lease, the proponent, the State and any ‘native title party’ for the relevant area must negotiate in good faith with a view to obtaining the agreement of each native title party about grant of the lease. If after six months the parties are unable to agree, then any of the parties may apply to the Tribunal asking for a determination to be made. The determination can be that the lease may be granted, with or without conditions, or that it must not be granted.
On 22 October 2015, Julie Lewis, one of the persons named on the Widi Mob’s claim, made a future act determination application on behalf of the Widi Mob. Ms Lewis is listed as the representative on the Widi Mob’s native title determination application proceedings in the Federal Court and she has provided information during this inquiry that she represents Widi Mob in future act proceedings. I note that Mr Dene Solomon has represented himself and Glenn Frederick Solomon, as the proponents, during negotiations and this inquiry.
The Tribunal’s President, Ms Raelene Webb QC, appointed me to constitute the Tribunal for the purposes of conducting an inquiry and making the determination. I accepted the application and I note the application satisfied the requirements under s 35(1) of the legislation as it was made more than six months after the lease was notified and no s 31(1)(b) agreement had been made. A s 31(1)(b) agreement concerns grant of the tenement and is regarded as being between the ‘negotiation parties’ (i.e. between each grantee party, each native title party and the State: see Aston Coal 2 v Gomeroi People).
Within the future act determination application, it states there is no s 31(1)(b) agreement between the negotiation parties, and furthermore:
The native title party consents to the proposed act being done, that is, the grant of Mining Lease 70/1323 the subject of this consent determination. The grantee party and the native title party confirm that an agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Mining Lease 70/1323 can therefore be granted in pursuance to the consent determination.
Ms Lewis provided an accompanying statutory declaration dated 20 October 2015. I note the following excerpts from the statutory declaration:
1.     I am a named applicant in the native title claim of the Widi Mob (WC97/72) and the Widi Mob’s authorised representative in future act matter.
2.     I am authorised to make this statutory declaration in support of the grant of any mining leases within the Widi Mob Native Title Claim on the Widi Mob behalf.
3.     The matters set out in this statutory declaration are within my own knowledge where I have identified matters as being true to the best of my knowledge, information and belief based on my reading of document or inquiries.
Decision-making process
4.     The Widi Mob’s laws and customs do not provide for a traditional decision-making process which must be followed for authorising the making of agreements, even though they use traditional principles of decision-making as far as possible.
5.     The agreed and adopted decision-making process of the Widi Mob for authorising the making of native title agreements under the Native Title Act 1993 (Cth) is by way of resolutions made by consensus at a meeting of all persons comprising the Registered Native Title Claimant for the Widi Mob (“the named applicants”) under the leadership of our Elder, Irwin Tasman Lewis.
6.     The Widi Mob has given authorisation for the named applicants to negotiate and enter into native title agreements on the behalf of the Widi Mob.
7.     The named applicants have regular meetings to discuss any mining business involving the Widi Mob.
Agreements
8.     On the 30 September 2015 the Widi Mob Applicants met with Perangery Pastoral Company and reached agreement on the terms for mining lease M70/1323.
9.     At this meeting on the 30 September 2015, the named applicants passed a resolution by consensus to authorise the making of the Agreement.
10.   The resolution was agreed to by all the named applicants except for Gregory Denis Martin.
11.   Mr Martin has refused to sign any agreements on behalf of the Widi Mob or take any part in Widi Mob business due to personal issues unrelated to this or any Mining Agreements.
12.   The Widi Mob consent to the grant of mining lease M70/1323 pursuant to the Agreement, and in light of Mr Martin’s issues have decided to pursue a consent determination for the grant of M70/1323.
Future Agreements and Change of Address
13. A resolution was passed, at the meeting on the 30 September 2015, that as long as the five applicants: Irwin Tasmin Lewis, Darryl Noel Woods, Julie Lewis, William (Bill) Lewis, and Gloria May Lewis were in agreeance all future Agreements would not require Gregory Denis Martin’s signature.
...
I am satisfied that: no s 31(1)(b) agreement has been executed (if there had been, I would be unable to make a determination due to s 37 of the Act); Widi Mob consent to the future act; and Mr Gregory Martin’s withholding of his signature is for reasons unrelated to the content of the agreement.
In making the determination I must consider the criteria set out in s 39 of the Act. Section 39(4) prescribes that if there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then in making my determination I must take that agreement into account, and need not take into account the matters in s 39(1) to the extent those matters relate to the issues agreed: see s 39(4) of the Act.
Section 39(1)(a)-(f) sets out a range of factors to be taken into account. In summary, they are the effect of the mining lease on: the enjoyment by the native title parties of their registered native title rights and interests; the way of life, cultural and traditions; development of their social, cultural and economic structures; their freedom of access, and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to the native title parties in accordance with their traditions. In determining the effect of the lease on those matters just listed, I am to take into account the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the native title parties. I must also take into account the interests, proposals, opinions and wishes of the native title parties in relation to the management, use or control of the relevant land or waters; the economic or other significance of the mining lease to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in the mining lease; and any other matter I consider to be relevant.
During a preliminary conference for this matter I explained the above provisions and that, even in circumstances of agreement, I must consider the s 39 criteria. I then directed parties to provide a statement of the issues and facts they agree upon. That statement, signed by each party, was provided as follows:
Statement of agreed facts and issues
1. The Government party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth) (NTA)
2. The Native Title Party, Grantee Party and Government Party have negotiated in good faith in accordance with section 31(1)(b) of the NTA in relation to the grant of mining lease M70/1323 under the Mining Act 1978 (WA).
3. The Native Title Party consents to the grant of mining lease M70/1323: see statutory declaration of Julie Lewis at [9].
4. The Native Title Party has not executed an agreement with the Grantee Party expressing their consent to the grant of mining lease M70/1323 due to issues with one named applicant signing documents: see statutory declaration of Julie Lewis at [11]-[12].
5. The Native Title Party and Grantee Party have addressed the effect of mining lease 70/1323 regarding each of the matters outlined in section 39(1)(a) of the NTA to their mutual satisfaction in a bipartite mining agreement (Mining Agreement): see statutory declaration of Julie Lewis at [8]-[9] and future act determination application filed 22 October 2015 (Form 5) at [10(2)].
6. The Native Title Party and Grantee Party both consent to the Tribunal taking into account the fact that they:
a. have addressed the matters outlined in s39(1)(a) of the NTA to their mutual satisfaction in the Mining Agreement; and
b. agree that the grant of mining lease M70/1323 will have no significant adverse effect on those matters,
in making its determination.
7. On that basis, the Native Title Party and Grantee Party also consent to the Tribunal having no further regard to the matters outlined in section 39(1)(a) of the NTA, in reliance on section 39(4) of the NTA.
8. The Government Party relies on the statements made by the Native Title Party and Grantee Party above at [6] and, on that basis, consents to the Tribunal taking those statements into account and having no further regard to the matters in section 39(1) of the NTA.
9. The Native Title Party, Grantee Party and Government Party have conferred as to the matters outlined in sections 39(1)(b)-(f) of the NTA and each party agrees to make no further submissions on these matters.
10. The Native Title Party, Grantee Party and Government Party consent to a determination under section 38 of the NTA that the grant of mining lease M70/1323 may be done.
It is clear from the material provided that all parties agree to the grant of M70/1323 and there is agreement regarding the factors in s 39(1). Taking into account the matters outlined above and the relevant legislation, I make the following determination.

Determination

The determination of the Tribunal is that the act, namely the grant of mining lease 70/1323 to Dene Thomas Solomon & Glenn Frederick Solomon, may be done.

Mr JR McNamara
Member

21 December 2015