Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd)/Martha Borinelli and Others on behalf of the Yued People/Western Australia
[2006] NNTTA 144
•26 October 2006
NATIONAL NATIVE TITLE TRIBUNAL
Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd)/Martha Borinelli and Others on behalf of the Yued People/Western Australia, [2006] NNTTA 144 (26 October 2006)
Application No: WF06/77
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd) (Applicant/grantee party)
- and -
Martha Borinelli and Others on behalf of the Yued People (WC97/71) (native title party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 26 October 2006
Catchwords: Native title – future acts – application for determination for the grant of mining leases – certain named applicants not signed agreements – native title party as a whole consents to the determination – agreement recorded in Tribunal’s reasons – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109, 203
Cases:Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 20 October 2006
Counsel for the Mr Ettienne van Tonder
native title party: South West Aboriginal Land and Sea Council
Representatives of the
grantee party: Ms Christine Bean and Mr David Charles, TiWest Joint Venture
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 3 November 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of mining leases M70/1162 and M70/1163 (‘proposed leases’) under the Mining Act 1978 (WA) to Yalgoo Minerals Pty Ltd and KMCC Western Australia Pty Ltd (‘the grantee party’). The proposed leases are located 28 kilometres easterly of Cervantes in the Shire of Dandaragan and comprise 527.41 and 705.30 hectares respectively.
The native title party with respect to these proceedings, and the extent to which its registered claim overlaps the proposed leases, is as follows:
· Martha Borinelli, Arnold Franks, Charmaine Walley, Dianne Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder and a deceased person whose name is withheld for cultural reasons on behalf of the Yued People (WC97719) (‘the native title party’) - 100% overlap.
On 6 September 2006, being a date more than six months after the s 29 notice was given, Tiwest Joint Venture on behalf of the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act. Both Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd are registered as owners of Tiwest Joint Venture. Tronox Western Australia Pty Ltd was formerly known as KMCC Western Australia Pty Ltd.
The grantee party requested that the future act determination be made by consent and paragraph 10 of the applications states:
‘The parties have in place an Ancillary Agreement between the Yued Poeple and TiWest in relation to any mining in the agreement area. The parties are seeking a Consent Determination of the grant of Mining Lease Applications 70/1162 and 70/1163. All parties agree that the Consent Determination is subject to, and the terms and conditions of the agreement will apply in respect to the grant of mining leases 70/1162 and 70/1163.
The Ancillary Agreement and the State Deed have been signed by some of the Yued Applicants, and the South West Aboriginal Land and Sea Council is in the process of obtaining the remaining signatures on both the State Deed and the Ancillary Agreement.’
Forwarded to the Tribunal prior to the hearing were statements executed by seven of the eight living persons named as the native title party applicant, namely Martha Borinelli, Diane Mippy, Jenny Mogridge, Edna Ryder, Joseph Ryder, Mal Ryder and Charmaine Walley. The statements, identical in terms except for the relevant name and address, are as follows:
‘I [name] of [address], being a Named Applicant for the Yued Native Title Claim (WC97/71) agree to the grant of Mining Leases 70/1162 and 70/1163 to Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd notwithstanding that one or more of the Named Applicants for the Yued Native Title Claim Group refuse to sign the Section 31(1)(b) agreement (Falcon Lease Agreement) or State Deed for the purposes of the grant of Mining Leases 70/1162 and 70/1163 and I support Tronox Western Australia Pty Ltd and Yalgoo Minerals Pty Ltd in their Section 35 Consent Determination application to the National Native Title Tribunal for the making of a determination to allow the grant of Mining Leases 70/1162 and 70/1163, subject to the provisions of the Falcon Lease Agreement.’
The Tribunal has before it the following agreements:
· ‘Deed for Grant of Mining Tenements: Native Title Act 1993 (Cth) - Sections 28(1)(f) and 31(1)(b)’ (‘State Deed’)
· ‘Falcon Lease Native Title Agreement: Tiwest Pty Ltd ACN 009 343 364 for and on behalf of the Tiwest Joint Venture and Yued Native Title Party for and on behalf of the Yued People’ (‘Ancillary Agreement’)
Both agreements have been executed by the grantee party and by seven of the eight living persons named as the native title party applicant namely Martha Borinelli, Diane Mippy, Jenny Mogridge, Edna Ryder, Joseph Ryder, Mal Ryder and Charmaine Walley. The State Deed is for the proposed licences and the Ancillary Agreement includes the proposed licences "or further or substitute applications ... over the whole or any part of (but not greater than) the area the subject of the proposed licences" (page 6).
Because an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. the State Deed) has not been executed by all the persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination. 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 their consent. SWALSC is the recognised representative body under the Act for the native title party and Mr Ettienne van Tonder, solicitor, has represented them in these proceedings. 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 inquiry
On 20 October 2006, a hearing was conducted at which all parties were represented. The wording of a proposed minute of a consent determination was discussed at length, with reference to the issues recently raised in Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner (‘Enmic’) (paragraphs [9]-[19]) in relation to the power of the Tribunal to make determinations with conditions for payments of compensation or of the kind mentioned in s 38(2) of the Act.
In summary, the native title party proposed a minute of a consent determination similar in terms to that proposed in Enmic (at paragraph [18]) and the grantee party indicated it would consent to those terms. The Government party sought an adjournment to seek further instructions. Consequently I adjourned the matter to a second hearing on 24 October 2006.
Prior to the second hearing, a proposed minute of a consent determination in the following terms was lodged with the Tribunal, executed by Simon Blackshield, Principal Legal Officer of the South West Aboriginal Land and Sea Council (‘SWALSC’) for the native title party, Mr David Charles for the grantee party and Mr Trevor Creewel for the Government party:
‘MINUTE OF CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
AGREED FACTS
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 Native Title Party and Grantee Party agree to be bound by:
a. the terms of the Ancillary Agreement between the Native Title Party and Grantee Party Ltd dated 30 August 2006 (despite it not having being executed by all registered claimants).
AGREED CONSENT
4.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 70/1162 and 1163 may be done.’
Given the consent evidence by this minute I consider it appropriate to make the determination based on the proceedings and evidence to date without a further hearing.
The issues raised by the refusal of Mr Franks to execute documents giving effect to agreements reached with the Yued native title party has been considered by the Tribunal on a number of occasions, most recently in Enmic (at [7]-[8]. In that matter the Tribunal was satisfied, on the basis of documentary and oral evidence presented by SWALSC, that the claimants consented to the act being done. The ‘native title party’ is not each individual person named as part of the applicant and registered native title claimant but the applicant and registered native title claimant acting collectively as representatives and agents for the claimant group and individual persons named as part of the applicant are not entitled to separate representation (Monkey Mia at [19]-[21]). If the Tribunal is satisfied that the applicants and registered native title claimants (or more accurately the persons named as part of the applicant and registered native title claimant) collectively consent, then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made.
In the present case I am also satisfied by the evidence that the native title party as a group consent to the determination. Seven of the eight living persons named as the native title party applicant have signed the State Deed, Ancillary Agreement and statements confirming their consent to the determination. The native title party has been represented in this matter throughout by the recognised representative Aboriginal/Torres Strait Islander body for the area (SWALSC) and solicitors engaged by them. As the recognised representative body under the Act, SWALSC 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)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). 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)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representatives on whether the appropriate consent has been given by the native title party.
Finally, as I observed in Enmic at paragraph [22], the difficulties in relation to Mr Arnold Franks giving effect to the collective decisions of the native title party have been known for some time. The claim group and SWALSC should give consideration to rectifying this unsatisfactory situation by replacing Mr Franks as one of the persons jointly comprising the applicant.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of mining leases M70/1162 and M70/1163 to Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd), may be done.
Hon C J Sumner
Deputy President
26 October 2006
1
2
0