Albert Little and others on behalf of Badimia (WC96/98)/Douglas Ernest Taylor and Paul Ernest Sumption/Western Australia

[2004] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little and others on behalf of Badimia (WC96/98)/Douglas Ernest Taylor and Paul Ernest Sumption/Western Australia, [2004] NNTTA 14 (4 March 2004)

Application No:         WF04/3

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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Douglas Ernest Taylor and Paul Ernest Sumption (Grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                   Daniel O’Dea, Tribunal Member

Place:  Perth
Date:  4 March 2004

Catchwords:              Native title – future act – application for determination for the grant of mining lease – consent determination that the act may be done.

Legislation:               Native Title Act 1993 (Cth), ss 29, 31, 35, 38 and 39

Mining Act 1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) Hon C J Sumner

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004)
Hon C J Sumner.

Evans v Western Australia (1997) 77 FCR 193 at 213-214

Hearing Date:           3 March 2004

Representative for the
Native Title party:           Mr Cedric Davies, Yamatji Land & Sea Council

Counsel for the                
Native Title party:           Ms Frances Flanagan, Yamatji Land & Sea Council

Representative for the

Grantee party:                Mr Douglas Ernest Taylor

Representative of the      Mr Rod Wahl, Crown Solicitor’s Office (Counsel)
Government party:         Mr David Crabree, on behalf of Mr David Thomson, Department    of Industry and Resources
  Ms Carmel Smart, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 27 June 2001, 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 M59/549 under the Mining Act 1978 (‘the lease’) to Douglas Ernest Taylor and Paul Ernest Sumption (‘the Grantee party’).

2. The Native Title party in respect of these proceedings is:

   ·     Albert Little and others on behalf of Badimia (WC96/98)

3. The registered native title claimants on behalf of Badimia are:

   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

4. On 13 February 2004, being a date more than six months after the s 29 notice was given, the Native Title party made an application to the National Native Title Tribunal (‘the Tribunal’) pursuant to s 35 of the Act for a future act determination under s 38 in relation to Mining Lease M559/549 (‘the s 35 application’). The Yamatji Land and Sea Council is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Badimia native title claim. The parties consent to a determination that the act may be done subject to the terms of an ancillary agreement entitled “Deed”, dated 24 October 2003.

5. The s 35 application attaches a copy of the Deed at Annexure 1. The Deed is signed by Simon Hawkins, Executive Director of the Yamatji Marlpa Barna Barna Aboriginal Corporation on behalf of the Native Title party, and the two signatories for the Grantee party, Douglas Taylor and Paul Sumption. The Yamatji Land and Sea Council Chairperson appears to have countersigned the Deed on 11 February 2004.

6. Attached to the s 35 application is a minute signed by both members of the Grantee party and the Solicitor for the Native Title party. Provision is also made for a Government party signatory and a copy of the minute signed by all three parties was subsequently provided to the Tribunal by facsimile on 23 February 2004. The terms of the minute are set out as follows:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)

   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 Grantee Party and the Native Title Parties have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

   3.The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s.38 of the Native Title Act that the “act” being the grant of Mining Lease M59/549 may be done pursuant to the agreement entitled “Deed” dated 24 October 2003.’

7. On 25 February 2004 the Tribunal received a facsimile copy of a Power of Attorney, dated 7 November 2003, authorising Douglas Taylor to act on behalf of Paul Sumption as Grantee representative with regard to the application for Mining Lease M59/549, in relation to native title decisions and associated matters.  The document is signed by Paul Sumption.

8. 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) Hon C J Sumner). The Native Title party and the Government party are legally represented in this matter. On 3 March 2004, the Tribunal convened a hearing in this matter at which all parties reaffirmed their consent. The Native Title party’s representative informed the Tribunal that they had instructions from their clients to consent. I have had regard to this, and to the fact that representatives for all parties have signed the minute consenting to a determination that the act may be done subject to the conditions of the Deed.

9. The proposed consent determination is sought to be expressed in terms that the act may be done subject to the terms of the agreement.  I refer to the decision in Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24 [2004] NNTTA 1 (16 January 2004) by the Hon C J Sumner. In that decision the Hon C J Sumner made comments at paragraph [6] that whilst the Tribunal has a broad power to impose conditions there are some limitations (see s 38(2) of the Act and discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214). For instance, the Tribunal must not determine a condition that has the effect that the native title parties are to be entitled to payments worked out by reference to the amount of profits made, any income derived or any things produced by any Grantee party as a result of doing anything in relation to the land or waters concerned after the act is done (s 38(2) of the Act). In that matter the Hon C J Sumner made a determination subject to the agreement because he had read the agreement and it did not contain terms which the Tribunal does not have power to impose. Similarly in the present matter I have read the agreement and it does not contain terms which the Tribunal does not have power to impose. In these circumstances I am prepared to make the determination subject to the terms of the agreement.

10. I note as asserted by the Native Title party in paragraph [11] of the s 35 application that any effect of the future act on native title (s 39(1)(a)(i) of the Act) will be minimised by the Grantee party abiding by the terms of the agreement.

Determination

1. By consent the determination of the Tribunal is that the act, being the grant of mining lease M59/549 to Douglas Ernest Taylor and Paul Ernest Sumption, may be done subject to the ‘Deed’ executed by the Native Title party and the Grantee party on 24 October 2003.

Daniel O’Dea
Member
4  March 2004