Albert Little and Others on behalf of Badimia/Seaprince Holdings Pty Ltd and Maroubra Pty Ltd/State of Western Australia
[2006] NNTTA 9
•10 February 2006
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of Badimia/Seaprince Holdings Pty Ltd and Maroubra Pty Ltd/State of Western Australia, [2006] NNTTA 9 (10 February 2006)
Application No: WF06/3
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
Albert Little and Others on behalf of Badimia (WC96/98) (Applicant/native title party)
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Seaprince Holdings Pty Ltd and Maroubra Pty Ltd (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 10 February 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licences – logistical difficulties in obtaining signatures to s 31 agreement – 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
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner
Hearing date: 10 February 2006
Representatives of the
native title party: Mr Matthew O’Sullivan
Representative of the
grantee party: Mr Phillip Power, Soldo Partners
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 26 January 2000, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of Exploration Licences E70/2131 and E70/2231 ('the proposed licences') under the Mining Act 1978 (WA) to Seaprince Holdings Pty Ltd and Maroubra Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The size and location of the proposed licences are as follows:
· E70/2131 - 65.35 square kilometres, 74 kilometres southerly of Paynes Find in the Shire of Mount Marshall/Dalwallinu
· E70/2231 - 17.82 square kilometres, 75 kilometres southerly of Paynes Find in the Shire of Mount Marshall/Dalwallinu
At the time of s 29 notification the proposed licences overlapped the following registered native title applications:
· E70/2131 - Badimia People (WC96/98) and Ballardong People (WC97/56) at 46.8% and 53.2% respectively.
· E70/2231 - Badimia People (WC96/98) and Ballardong People (WC97/56) at 54.5% and 45.5% respectively.
On 3 and 28 March 2000, objections to the inclusion of the expedited procedure statement (designated WO00/159 and WO00/152) were lodged on behalf of the Badimia and Ballardong People respectively. On 26 June 2000 I made consent determinations in relation to these objection applications that the expedited procedure was not attracted. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied from this date.
On 30 June 2000, Tribunal mediation assistance pursuant to s 31(3) the Act was sought by the grantee party. Mediation was discontinued on 8 May 2001 on the basis that the parties had not reached agreement.
The native title party with respect to these proceedings is:
· Mr Albert Little, Mr Des Little, Mr Des Thompson, Mr Frank Walsh (Jnr), Mr Frank Walsh (Snr), Mr John Ashwin, Mr Ollie George, Mr Richard Little, Mr Percy George, Ms Clara George, Ms Gloria Fogarty, Ms Hazel Little, Ms Irene Harris, Ms Nancy Wallam, Ms Olive Gibson, Ms Wilma Lawson on behalf of the Badimia People (WC96/98) (‘the native title party’).
The Ballardong Peoples Claim WC97/56 was combined with Ballardong Claim WC00/7 on 5 July 2000, and on 10 May 2005 the combined Ballardong claim WC00/7 failed the registration test. As a consequence pre-combination WC97/56 has been deregistered and the Ballardong People no longer have procedural rights in relation to the proposed licences.
On 16 January 2006, being a date more than six months after the s 29 notice was given, the Yamatji Land and Sea Council (the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation) (‘Yamatji’) 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.
The native title party requested that the future act determination be made by consent and appended to the s 35 determination application a minute of a consent determination in the following terms, which has since been executed in counterparts by Ms Helen Lawrence on behalf of the native title party, Mr Phillip Power on behalf of the grantee party, and Mr Trevor Creewel (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Exploration Licences 70/2131 & 70/2231 may be done.’
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).
Paragraph 10 of the s 35 application states:
'The parties reached agreement about the act at a Badimia working group meeting held in Mt Magnet on 14 June 2005. The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed in a timely manner.
The claim covers an area of some 36,000 square kilometres. The Applicants do not all live centrally, being located as far apart as Cue, Guilderton (near Perth) and Esperance. The time and costs involved in obtaining the signatures of all the Applicants is significant, and would be prohibitive if undertaken for every future act determination.
The Native Title Party consents to the proposed act being done, that is the grant of licences E51/884 pursuant to the terms of an agreement between the Native Title Party and the Grantee dated 18th August 2005.
The YLSC is satisfied that the Native Title Party collectively consents to the determination, as evidenced by the resolution of the working group meeting of 14th June 2005.’
Leave was give by the Tribunal to amend paras 10, 11 and 12 of the application to refer to an agreement between the native title party and grantee party dated 9 February 2006 in lieu of the dates originally specified.
Because all persons comprising the native title party have not signed the heritage agreement or State Deed for the reasons specified above, this matter cannot be concluded by way of s 31 agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
The inquiry
On 10 February 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr Matthew O’Sullivan, counsel for the native title parties, advised he was satisfied that he and Yamatji had been properly instructed by the native title parties to consent to the determination. The Tribunal was also informed that the agreement signed by the grantee party provides for a heritage protection survey prior to exploration involving ground disturbing activity.
As the designated representative body under the Act, Yamatji 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 legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.
The Tribunal is aware from previous future act determination applications of the logistical difficulties in obtaining signatures of the Badimia applicants to agreements and accept them as a legitimate basis for seeking a consent determination (see for example Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner). In that matter one of the named applicants (Frank Walsh Jnr) also refused to sign the relevant agreements but the Tribunal considered it appropriate to make a determination on the basis that the native title party had collectively consented to it. In the present matter Mr O’Sullivan advised that Mr Frank Walsh Jnr was no longer refusing to sign but was currently interstate, thus compounding the logistical difficulties in obtaining the necessary signatures
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licences E70/2131 and E70/2231 to Seaprince Holdings Pty Ltd and Maroubra Pty Ltd, may be done.
Hon C J Sumner
Deputy President
10 February 2006
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