Albert Little and Others on behalf of Badimia/Tantalum Australia Nl and Mawson West Ltd/State of Western Australia
[2006] NNTTA 22
•10 March 2006
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, [2006] NNTTA 22 (10 March 2006)
Application No: WF06/10
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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Tantalum Australia NL and Mawson West 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 March 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licences – 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 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 March 2006
Counsel for the
native title party: Mr Matthew O’Sullivan, Yamatji Land and Sea Council
Representative of the
native title party: Mr Nathan Cammerman, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Graham Williamson, Central Tenement Services
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 14 July, 11 August and 8 September 1999, the Government party respectively gave notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences 59/875, 59/890 and 59/876 ('the proposed licences') under the Mining Act 1978 (WA) to Resource Exploration NL and Australasian Gold Mines NL (‘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). On 1 December 2000 the change of name of Resource Exploration NL to Futurexone Ltd was registered, with a further name change to Mawson West NL being registered on 16 July 2002. On 12 July 2002 the change of name of Australasian Gold Mines NL to Tantalum Australia NL was registered.
The area, location and percentage to which each of the proposed licences overlaps the Badimia peoples registered native title claim (WC96/98, registered from 4 October 1996) is as follows:
· E59/875 – 205.83 square kilometres, 65 kilometres south westerly of Paynes Find in the Shire of Yalgoo/Perenjori, 100% overlap;
· E59/876 – 172.42 square kilometres, 65 kilometres north easterly of Dalwallinu in the Shire of Dalwallinu/Yalgoo, 80% overlap; and
· E59/890 – 89.4 square kilometres, 45 kilometres south westerly of Paynes Find in the Shire of Yalgoo, 100% overlap.
On 8 September 1999, objections to the inclusion of the expedited procedure statement (designated WO99/253 (E59/875), WO99/785 (E59/876) and WO99/255 (E59/890) were lodged on behalf of the Badimia People. On 10 December 1999 (E59/875), 8 February (E59/890) and 10 May 2000 (E59/876) 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 these dates.
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’).
On 16 February 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 Mr Jeremy Ryan on behalf of the native title party, Mr Imants Kins and Mr David Frances (Directors of Tantalum Australia NL and Mawson West Ltd respectively) 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 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 E59/875, E59/876 and E59/890 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 on 6th December 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 E59/875, E59/876 and E59/890 pursuant to the terms of an agreement between the Native Title Party and the Grantee dated 15th December 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 9th December 2005.’
Because, for the reasons specified above, all persons comprising the native title party have not signed the heritage agreement or State Deed, 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 March 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 party, advised he was satisfied that the facts set out in para 10 of the application were correct and that he and Yamatji had been properly instructed by the native title party to consent to the determination. The Tribunal was also informed that the agreement signed by the grantee party is based on the Regional Standard Heritage Agreement for exploration endorsed by Yamatji, the Government party and industry with some modifications.
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 E59/875, E59/876 and E59/890 to Tantalum Australia NL and Mawson West Ltd, may be done.
Hon C J Sumner
Deputy President
10 March 2006
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