FMG Pilbara Pty Ltd/Angelina Cox & Ors (Puutu Kunti Kurrama & Pinikura People); Wintawari Guruma Aboriginal Corporation/Western Australia, [2009] NNTTA 179 (24 December 2009)

IN THE MATTER of the Native Title Act 1993 (Cth)

IN THE MATTER of an Inquiry into a Future Act Determination Application

Angelina Cox, Angie Cox, Annabelle Stewart, Arness James, Charleston Cox, Chloe Hayes, Darryl Hughes, Gary Hughes, Harold Ashburton, Lily Mackay, Maudie Dowton, Mitchell Drage, Maurice Daublin on behalf of Puutu Kunti Kurrama & Pinikura People (WC01/5) (first native title party)

Wintawari Guruma Aboriginal Corporation (WC97/89) (second native title party)

Hearing dates: 5 June, 14 August, 21 August, 4 December, 15 December, 21 December 2009

Grantee Party: Mr. Ken Green, Green Legal Pty Ltd

First Native Title Party: Mr. Marshall McKenna and Melissa Watts, Hunt & Humphry Project Lawyers

Mr. Ibrahim Kakay and Mr. Shahzad Rind, Yamatji Marlpa Aboriginal Corporation

Second Native Title Party: Mr. Ronald Bower, Corser & Corser, Lawyers

Government Party: Mr. Domhnall McCloskey and Mr. Rod Wahl, State Solicitor's Office

Ms. Paola O'Neill, Department of Mines and Petroleum

Catchwords: Native title - future act determination application - proposed mining lease - native title party consents to the determination - consent determination that the act may be done

Legislation: Mining Act 1978 (WA) s 78

Native Title Act 1993 (Cth) ss. 28, 29, 31, 35, 36, 37, 38, 41, 41A, 75, 109, 193

Cases: Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, WF07/40, [2009] NNTTA 57 (15 June 2009) Deputy President Sosso

Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233

Button v Chapman [2003] FCA 861

Cox v Western Australia [2008] NNTTA 90; (2008) 219 FLR 72

Doolan v Native Title Registrar [2007] FCA 192; (2007) 158 FCR 56

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141

FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, WF08/32 and WF08/33, [2009] NNTTA 69 (8 July 2009) Member O'Dea

FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, WF08/31, [2009] NNTTA 91 (13 August 2009), Member O'Dea

FMG Pilbara Pty Ltd/Wintawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, WF09/1, [2009] NNTTA 99 (27 August 2009) Member O'Dea

Foster v Copper Strike Ltd (2006) 200 FLR 182

Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365

Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, WF04/22, [2004] NNTTA 85 (15 September 2004) Deputy President Sumner

Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People/Western Australia/Giralia Resources NL, WF06/82, NNTTA 10 (29 January 2007) Deputy President Sumner

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

Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo) WF02/17, 02/18 and 02/27 [2003] NNTTA 4 (21 January 2003) Deputy President Sumner

[1] On 25 April 2007, the State of Western Australia ("the government party") gave notice under section 29 of the Native Title Act 1993 (Cth) ("the Act") of its intention to grant Mining Lease 47/1404 ("the proposed tenement") to FMG Pilbara Pty Ltd ("the grantee party").

[2] The notice stated that the grant of the proposed tenement would authorise the grantee to mine for minerals for a term of 21 years from notification of grant, and a right of renewal for a further 21 years - see s.78(1) (a) and (b) of the Mining Act 1978 (WA).

[3] The proposed tenement, comprising 4341.19 hectares, is located approximately 65 kilometres west of Tom Price, situated at Latitude 22º 29' S, Longitude 117º12' E within the Shire of Ashburton. The tenement includes land and waters that comprise part of both the native title determination application area of the Puutu Kunti Kurrama Pinikura People ("first native title party"/"PKKP") and the area subject to an approved determination of native title in favour of the Wintawari Guruma Aboriginal Corporation ("second native title party"). The first native title party filed its native title determination application on 30 October 2001 and its current registered native title rights and interests were entered on the Register of Native Title Claims on 29 November 2001. The second native title party is a prescribed body corporate established following the Federal Court making a determination of native title in favour of the Eastern Guruma People on 1 March 2007 - Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365. The details required by s.193(2)(e) of the Act were entered in the National Native Title Register on 6 March 2007.

[4] On 23 November 2007, the grantee party lodged with the Tribunal, pursuant to sections 35 and 75 of the Act, an application for a future act determination under section 38. As at least six months had passed since the notification day, the grantee party was prima facie entitled to make this application - s.35(1)(a).

[5] On 14 January 2008, I was appointed the presiding Member to constitute the Tribunal for the purposes of conducting the inquiry into the future act determination application.

[6] The first and second native title parties challenged the power of the Tribunal to make a future act determination under section 38 on the basis that the grantee party had not negotiated in good faith, therefore depriving the Tribunal of its power to make a future act determination - see subsection 36(2). This challenge was upheld on 11 July 2008 - Cox v Western Australia [2008] NNTTA 90; (2008) 219 FLR 72 ("Cox"). On 30 April 2009 the Full Federal Court in FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141 set aside the decision of the Tribunal in Cox and declared that the grantee party had fulfilled its obligation to negotiate in good faith. The Court therefore determined that the Tribunal had the power to conduct an inquiry and make a determination under s.38 of the Act.

[7] On 8 May 2009 the Tribunal made Directions for the purpose of making a determination pursuant to section 38. In particular the Tribunal directed that the native title parties were to provide their contentions to each of the other parties on or before 2 June 2009. The first native title party filed a statement of contentions on 29 May 2009. The second native title party did not file any material.

[8] On 25 May 2009 the first native title party applied to the High Court of Australia for special leave to appeal from the whole judgement of the Full Federal Court, seeking, inter alia, an order that the decision of the Full Court be set aside and in lieu thereof and that the appeal from the decision of the Tribunal be dismissed.

[9] On 5 June 2009 the first native title party lodged a submission with the Tribunal seeking an adjournment of proceedings. For reasons detailed in Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, WF07/40, [2009] NNTTA 57 (15 June 2009), I varied Directions made on 8 May 2009 to allow the first native title party to lodge its submissions by 4 August 2009. Directions for all remaining parties were vacated and a listing hearing scheduled for August 2009.

[10] The first native title party complied with the Directions and filed with the Tribunal affidavits of Angie Cox, Corbett Ashburton, Harold Ashburton and Robert James Mackay on 4 August 2009.

[11] On 13 August 2009, the legal representative of the second native title party, Mr. Ronald Bower, advised all parties in writing that the second native title party was considering whether to maintain an active role in the proceedings and, unless and until it withdrew, the second native title party would comply with any orders made by the Tribunal. The second native title party did not file any material with the Tribunal in respect of these proceedings.

[12] At a directions hearing on 21 August 2009, I amended Directions, following a request from the first native title party, to allow additional time for the lodgment of a further affidavit and Connection Report to be relied upon by the first native title party, by 7 September 2009. Directions for the government and grantee parties were reinstated and required the grantee party to file any reply to the first native title party's submissions by 25 September 2009, the government party to file any reply to the first native title party's submissions by 30 September 2009, and the first native title party to file a response to any reply of the grantee and government parties by 9 October 2009.

[13] An affidavit of Maudie Dowton, sworn 4 September 2009, was filed with the Tribunal on 4 September 2009. On 10 September 2009, the Tribunal was advised by the legal representative of the first native title party, Ms. Melissa Watts, that the first native title party had been unable to finalise the Connection Report in the time available and as a result the Report would not be released for these proceedings.

[14] On 19 November 2009, the Tribunal wrote to all parties seeking written submissions with respect to the imposition of conditions imposed by Member O'Dea in FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, WF08/31, [2009] NNTTA 91 (13 August 2009), FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, WF08/32 and WF08/33, [2009] NNTTA 69 (8 July 2009) and FMG Pilbara Pty Ltd/Wintawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, WF09/1, [2009] NNTTA 99 (27 August 2009). Parties were asked to provide any submissions by 26 November 2009 with a right of reply by 2 December 2009. The Tribunal sought further submissions from the government and grantee parties in relation to the conditions proposed by the first native title party appended to the Further Submissions of the First Native Title Party filed 9 October 2009 ("Direction 2") by 26 November 2009. On 24 November 2009, following an unopposed request from the grantee party, I amended dates in relation to Direction 2 requiring the submissions of the government and grantee parties by 8 December 2009 with a right of reply by 15 December 2009.

[15] With the exception of the second native title party, each of the parties provided written contentions on the issues germane to the determination pursuant to section 38 of the Act.

Application by first native title party to defer handing down of decision

[16] On 30 November 2009, the first native title party wrote to the Tribunal and all other parties requesting the Tribunal defer handing down its decision for a period of two months to allow continued negotiations regarding the Land Access Agreement ("LAA") with the grantee party. The first native title party submitted that a community meeting with the PKKP People and grantee party was scheduled for 11 December 2009 "to potentially authorise execution of the LAA".

[17] On the same date, the Tribunal sought submissions from the parties in relation to the request of the first native title party with a response by 2 December 2009. In submissions provided on 2 December 2009, the government and grantee parties opposed the first native title party's request to defer the handing down of its decision for two months and pointed out that the Tribunal should conduct its inquiries in a prompt manner.

[18] On 4 December 2009, I convened a status conference for the purpose of hearing directly from parties with respect to the first native title party's application for deferral. The first native title party, in light of the views of the government and grantee parties, withdrew its request that the Tribunal defer handing down its decision by two months and instead requested a further status conference be convened following the outcome of a community meeting between the PKKP People and grantee party scheduled for 11 December 2009. The first native title party further requested that the Tribunal refrain from handing down its determination until after the community meeting and not before 18 December 2009.

[19] The representative for the second native title party, Mr. Bower, advised the Tribunal at the conference that the second native title party planned to execute an agreement with the grantee party at a meeting on 9 December 2009. As previously highlighted, agreement was reached between the second native title party and the grantee and government parties.

[20] I scheduled a further status conference for 15 December 2009, following the proposed meetings between the grantee party and both native title parties.

[21] On 15 December 2009, the representative for the first native title party advised the Tribunal that agreement was almost reached and that by midday 16 December 2009, it would either file a minute of consent or notify the Tribunal how it intended to proceed.

[22] On 16 December 2009 the government party provided to the Tribunal, in accordance with s.41A of the Act, a copy of the "Deed for Grant of Mining Tenement". This Deed, which is numbered M1025 and dated 15 December 2009, was executed by the second native title party as well as the government and grantee parties. The Deed related to the proposed tenement and under it the second native title party agreed to the grant of the tenement to the grantee party. The Deed was executed in accordance with ss.28(1)(f) and 31(1)(b) of the Act.

[23] Subsection 35(3) of the Act provides that even though a future act determination application has been made, the negotiation parties may continue to negotiate to reach agreement, and if any of the native title parties makes an agreement of the kind mentioned in s.31(1)(b) before a s. 38 determination is made, then the future act determination application is taken to have been withdrawn, at least in relation to that native title party. This provision must also be read in conjunction with s.37 which prevents the Tribunal making a determination if a s.31(1)(b) agreement is made. One example of where each of the native title parties made a s.31(1)(b) agreement, thus removing the power of the Tribunal to make a s.38 determination is Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo) WF02/17, WF02/18 and WF02/27 [2003] NNTTA 4.

[24] In this matter as only one of the two native title parties has made a s.31(1)(b) agreement the Tribunal still has the duty to make a s.38 determination. The Wintawari Guruma Aboriginal Corporation, having reached agreement with the other negotiation parties in accordance with s.31(1)(b), is no longer a party to these proceedings. Nonetheless Mr. Bower, on behalf of the Wintawari Aboriginal Corporation, did attend the conferences convened on 4 and 21 December 2009 and was supportive of the course of action proposed by the remaining parties.

[25] The first native title party filed a minute of consent on 16 December 2009, executed by Ms. Watts on behalf of the first native title party, Mr. Ken Green on behalf of the grantee party and Mr. Domhnall McCloskey, State Solicitor's Office, on behalf of the Government party:

"CONSENT TO DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH) IN RELATION TO THE GRANT UNDER THE MINING ACT 1978 (WA) OF M47/1404

We the solicitors for the parties consent to the following determinations being made in relation to the act the subject of this application, namely the proposed grant of Mining Lease 47/1404 under the Mining Act 1978 (WA):

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 have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3. The act, namely the proposed grant of Mining Lease 47/1404 under the Mining Act 1978 (WA), may be done."

[26] The Tribunal has power to make a determination with the consent of the parties. The principles underpinning the making of a consent determination are set out in Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 and Foster v Copper Strike Ltd (2006) 200 FLR 182. I adopt those principles for the purposes of this determination.

[27] On 21 December 2009, I convened a further status conference at which the representatives of all parties, including the legal representatives for the first and second native title parties, confirmed their consent to the determination in the terms sought.

[28] The reasons for seeking a consent determination are made on the basis that the grantee party and first native title party have reached agreement, but owing to logistical reasons, the representative for the first native title party does not consider the formal execution of the LAA and State Deed can be obtained in a timely manner.

[29] The first native title party communicated its stated position in writing to the Tribunal on 21 December 2009 as follows:

"(a) A draft claim wide land access agreement prepared by the Grantee Party was put to a community meeting of the PKKP held in Onslow on 11 December 2009. The land access agreement relates to tenements applied for or held by the Grantee Party including MLA 47/1404.

(b) At the community meeting on 11 December 2009, PKKP community agreed in principle to the land access agreement and authorised the PKKP applicants to sign the land access agreement.

(c) On 15 December 2009 the Grantee Party provided the First Native Title Party with two copies of the land access agreement executed by the Grantee Party.

(d) The First Native Title Party is attending to the execution of the land access agreement by the PKKP Applicants, however this process may take some time due to the remote location of some of the applicants and current law business period.

(e) In view of the above, the First Native Title Party consents to the Tribunal making a determination that the act, being the grant of MLA 47/1404, may be done."

[30] The grantee party confirmed the position as outlined by the first native title party in separate correspondence to the Tribunal on 21 December 2009.

[31] This matter is somewhat unusual in that it has been the subject of protracted proceedings for more than 18 months. During that time the Tribunal has been presented with copious material about the state of negotiations between the grantee party and the native title parties with respect to the LAAs in general, and the proposed tenement in particular. It would not be usual or appropriate for the Tribunal to make a consent determination where none of the persons comprising the Applicant have executed any documentation and the Tribunal was simply requested to overcome this gaping deficiency by making a consent determination. The Tribunal cannot "second guess" the wishes of the Applicant and facilitate the effectuation of an agreement reached by professional advisors which has not been the subject of discussion with the claim group and granted its approbation.

[32] There is ample material before the Tribunal in this matter that the agreement has been the subject of ongoing discussions over a long period of time. The tortured nature of those discussions and the eventual making of an accord is a matter of public record. The first native title party held a community meeting on 11 December 2009 and agreed to this course of action. In a series of decisions the Federal Court has held that the persons collectively comprising the Applicant are, in effect, trustees for the wider claim group. They are obliged to act in the best interests of the wider claim group and to fulfill their duties in an honest and reasonable manner. In effect they have a fiduciary obligation to the broader claim group and the position of "Applicant" does not involve a personal right: see Button v Chapman [2003] FCA 861 at [9], Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233, Doolan v Native Title Registrar [2007] FCA 192; (2007) 158 FCR 56.

[33] In this matter the following considerations, taken together, support the making of the consent determination sought:

• (a) The first native title party is legally represented;

• (b) The first native title party was represented by the representative body throughout the negotiations;

• (c) Negotiations about the LAA are of longstanding;

• (d) There have been a number of meetings of the claim group to discuss the negotiations with the grantee party;

• (e) There was a community meeting convened on 11 December 2009 which supported the execution of the LAA and State Deed;

• (f) There is no evidence that either the claim group generally or the persons comprising the Applicant oppose the execution of the LAA.

[34] In addition to all of the above considerations, the Tribunal has previously accepted logistical difficulties in obtaining signatures of named applications on State Deeds in this and other regions in Western Australia as a legitimate basis for seeking a consent determination (see for example Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People/Western Australia/Giralia Resources NL, WF06/82, NNTTA 10 (29 January 2007), Deputy President Sumner and Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, WF04/22, [2004] NNTTA 85 (15 September 2004), Hon CJ Sumner ("Connors").

[35] I adopt the findings from paragraph [9] of Connors in relation to the responsibilities of Yamatji Marlpa Aboriginal Corporation as a representative body and the manner in which the Tribunal is to carry out its functions under s.109 of the Act. Taking those findings into account, I accept the advice of the legal representative engaged by the representative body, Ms. Watts, that appropriate consent has been given to the determination by the first native title party.

[36] By consent the determination of the Tribunal is that the act, namely the grant of the Mining Lease M47/1404 to FMG Pilbara Pty Ltd, may be done.