Albert Little and Others on behalf of Badimia/State of Western Australia/Bougainvillaea Holdings Pty Ltd
[2007] NNTTA 58
•2 July 2007
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of Badimia/State of Western Australia/Bougainvillaea Holdings Pty Ltd, [2007] NNTTA 58 (2 July 2007)
Application No: WF07/8
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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The State of Western Australia (Government party)
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Bougainvillaea Holdings Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 2 July 2007
Catchwords: Native title – future act – application for determination for the grant of prospecting licence – named applicants not signed agreements – 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 29, 35, 38, 109, 203
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon C J Sumner
Hearing date: 2 July 2007
Representative of the
native title party: Ms Anne-Marie Hagan, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Chris Clegg, Statewide Tenement Services
Representatives of the Ms Cheryl Henry, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 4 March 1998, the Government party gave notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of prospecting licence P58/1053 ('the proposed licence') under the Mining Act 1978 (WA) to Bougainvillaea Holdings 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 proposed licence is 207.78 hectares located 13 kilometres southeasterly of Mount Magnet in the Shire of Mount Magnet and is 100 per cent overlapped by the registered claim of the Badimia people (WC96/98, registered from 4 October 1996).
On 8 April 1998 an objection to the inclusion of the expedited procedure statement (designated WO98/367) was lodged on behalf of the Badimia people. On 11 August 1998 I made a consent determination in relation to this objection application 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.
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 and Ms Wilma Lawson on behalf of the Badimia People (WC96/98) (‘the native title party’).
On 6 June 2007, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was subsequently amended on 20 June 2007.
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 executed by Ms Raina Savage solicitor then employed by the Yamatji Land & Sea Council (‘Yamatji’) on behalf of the native title party, Mr Chris Clegg on behalf of the grantee party and Mr Jeff O’Halloran (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 have 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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Prospecting Licence 58/1053 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 application states:
‘The native title party consents to the proposed act being done, that is the grant of Prospecting Licence 58/1053 … The grantee party and the native title party confirm that they have entered into a Heritage Agreement but a state deed has not been executed…’
Because all persons comprising the native title party have not signed the agreement contemplated under s 31(1)(b) of the Act (‘the State Deed’) and instead have sought a consent determination from the Tribunal, the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
The inquiry
On 2 July 2007, the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Ms Anne-Marie Hagan, employed by Yamatji and representing the native title party, advised that Yamatji had been properly instructed by the native title party to consent to the determination. She also confirmed that the logistical difficulties in obtaining signatures of all Badimia named applicants to a State Deed, evident in previous matters, still exist. The Tribunal was also informed that the Heritage Agreement signed by the grantee party is based on the Regional Standard Heritage Agreement with minor amendments for prospecting endorsed by Yamatji, the Government party and industry associations.
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 accepts them as a legitimate basis for seeking a consent determination (the most recent being Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon C J Sumner and see other cases cited therein at [13]).
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence P58/1053 to Bougainvillaea Holdings Pty Ltd, may be done.
Hon C J Sumner
Deputy President
2 July 2007
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