Angus Abdullah and Others on behalf of Njamal/Western Australia/Barry Neil Kayes

[2006] NNTTA 107

NATIONAL NATIVE TITLE TRIBUNAL

Angus Abdullah and Others on behalf of Njamal/Western Australia/Barry Neil Kayes, [2006] NNTTA 107 (4 August 2006)

Application No:        WF06/65

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

Angus Abdullah and Others on behalf of Njamal (WC99/8) (Applicant/native title party)

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The State of Western Australia (Government party)

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Barry Neil Kayes (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  4 August 2006

Catchwords:  Native title – future act – application for determination for the grant of mining lease – named applicants not signed agreements – decision making process – native title party as a whole consent to the determination – consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38, 109

Cases: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, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date:  4 August 2006

Counsel for the
native title party:                 Ms Christina Araujo, Pilbara Native Title Service

Representative of the
grantee party:  Mr Barry Kayes

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

1. On 18 January 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of mining lease M45/1134 ('the proposed lease') under the Mining Act 1978 (WA) to Barry Neil Kayes (‘the grantee party’).

2. The area, location and percentage to which the proposed lease overlaps the Njamal registered native title claim (WC99/8, registered from 3 June 1999) is 19.63 hectares, 84 kilometres westerly of Marble Bar in the Shire of East Pilbara, 100% overlap.

3. The native title party with respect to these proceedings is Mr Angus Abdullah, Mr Barry Taylor, Mr Biddy Norman, Mr Colin Malana, Mr Dan Murphy, Mr Eddie McPhee, Name Withheld for Cultural Reasons, Mr Ernie Johnson, Mrs Jan Taylor, Mr Johnson Taylor, Mr Kevin Allen, Mr Maurice Coppin, Mr Peter Coppin, Mr Rodney Monaghan, Mr Teddy Allen, Ms Alice Mitchell, Ms Lorraine Williams for and on behalf of Njamal.

4. On 19 July 2006, being a date more than six months after the s 29 notice was given, the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) made an application pursuant to s 35 of the Act for a future act determination under s 38 on behalf of the native title party.

5. The native title party requested that the future act determination be made by consent. A minute of a consent determination was later forwarded in the following terms, executed by Mr Jeremy Ryan of YMBBMAC on behalf of the native title party, Mr Trevor Creewel (State Solicitor’s Office) on behalf of the Government party and Mr Barry Kayes on behalf of the grantee party:

‘CONSENT DETERMINATION UNDER SECTION 38 OF

THE NATIVE TITLE ACT 1993 (CTH)

1. The Government Party has complied with the requirements of s31(1)(a) of the Native Title Act 1993

2. The Government Party, the Grantee Party and the Native Title Parties have complied with the requirements of s31(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 s38 of the Native Title Act 1993 that the 'act' being the grant of Mining Lease M45/1134 may be done.’

4. 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.  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).

5. The native title party has provided an affidavit of Christina Araujo, solicitor employed by the YMBBMAC who represents the native title party.  On the basis of the material contained in the affidavit I find:

• The Njamal native title claim group has adopted a decision making process to deal with matters arising from it’s native title claim which includes authorising 13 members (‘the Njamal working group’) of the native title claim group to deal with day to day matters including matters the subject of these proceedings.

• The Njamal working group met with Mr Kayes on 7 March 2006 at which an agreement was reached about the grant of the proposed mining lease and unanimously resolved to recommend to the Njamal native title claim group that they authorise the registered native title claimants to enter into the agreement with Mr Kayes.

• At a meeting on 29 May 2006 the Njamal claim group unanimously resolved that the registered native title claimants enter into the agreement and subject to it consent to the grant of the proposed lease.

• The agreement provides for matters customarily found in agreements of this kind including ongoing consultation between the native title party and Mr Kayes, employment, training and business opportunities, compensation and access to the area of the mining lease subject to operational and safety constraints.

• Twelve of the sixteen registered native title claimants (or more accurately twelve of the persons who jointly comprise the registered native title claimant) have executed the agreement.  Mr Angus Abdullah is sick and unable to sign, Eddie McPhee has refused to sign but given no reason why and logistical difficulties have been encountered in obtaining the signatures of Barry Taylor and Maurice Coppin.

The inquiry

1. On 4 August 2006, the Tribunal conducted a hearing at which all parties were represented. All parties present confirmed their consent to the determination in the terms sought. Ms Christina Araujo, counsel for the native title party, advised she was satisfied on the basis of the material in her affidavit that she and YMBBMAC had been properly instructed by the native title party to consent to the determination. Despite the failure of four of the persons named as part of the applicant to execute an agreement (either the Ancillary Agreement or s 31(1)(b) State Deed) I am satisfied that the Njamal has agreed to the grant of the proposed lease and consents to the determination sought.

2. The Tribunal has now made a number of determinations by consent involving the Njamal native title party in similar circumstances.   My findings are the same as those made in 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, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner at [13] which also involved the Njamal claimants. I also adopt my findings in para [14] of that determination (a native title party is all the persons named as part of the applicant acting jointly and not each individual named person – Monkey Mia at [19]-[21]) and para [20] (a representative body has a formal responsibility under the Act to represent and protect the interests of native title parties and the Tribunal is to carry out its functions in an informal and prompt way and is not bound by technicalities, legal forms or rules of evidence (s 109) which provides a basis for accepting the advice of solicitors for YMBBAC that the native title party’s consent has been properly given).

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining lease M45/1134 to Barry Neil Kayes, may be done.

Hon C J Sumner
Deputy President
4 August 2006