Albert Little and Others on behalf of Badimia/Western Australia/Henry Joseph Jones
[2004] NNTTA 84
•15 September 2004
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of Badimia/Western Australia/Henry Joseph Jones, [2004] NNTTA 84 (15 September 2004)
Application No: WF04/20
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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Henry Joseph Jones (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 September 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 35, 38, 203B(4), 203BB(1)(b), 203BC(1)(a), 203BC(1)(b), 203BC(2)
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
Albert Little & others on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/15, [2004] NNTTA 63 (16 July 2004), Hon C J Sumner
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner
Hearing date: 14 September 2004
Counsel for the
native title party: Mr Raf Melerski, Yamatji Land and Sea Council
Representative of the
native title party: Mr Nathan Cammerman, Yamatji Land and Sea Council
Representative of the Mr Robin Humberston, Austwide Mining Title Management
grantee party: Pty Ltd
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree and Ms Paola O’Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 25 August 1999, 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 M59/493 (62.95 hectares, 36 kilometres westerly of Mt Magnet in the Shire of Mount Magnet) (‘the proposed mining lease’), under the Mining Act 1978 (WA) to Henry Joseph Jones.
The native title party in respect of 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 Badimia.
On 18 August 2004, 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 in relation to the proposed mining lease. The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) is the designated representative body under the Act for the Badimia claim and has represented the native title party in these proceedings.
The s 35 determination application was accompanied by correspondence from Yamatji requesting a consent determination and attaching “an example draft (consent) determination” in the following terms which was subsequently executed in counterparts by Mr Raf Melerski, Mr Trevor Creewel (State Solicitor’s Office) on behalf of the native title party and Government party respectively, and by the grantee 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 Grantee Party and the Native Title Parties have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
- The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s38 of the Native Title Act that the ‘act’ being the grant of Mining Lease may be done.’
Although this minute does not specifically refer to the proposed mining lease by number I am satisfied from the application and other circumstances that the parties intended that it refer to the proposed mining lease.
The s 35 determination application appends a copy of an Agreement dated 5 August 2004 between the grantee party and the Badimia native title applicants, executed by the grantee party and Mr Simon Hawkins, Executive Director, for and on behalf of Yamatji as agent for the Badimia native title applicants. The agreement covers such issues as consent to the grant of the mining lease, compensation and negotiations in good faith should activity exceed the expected impact.
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 advises that the parties reached agreement regarding the proposed mining lease at a Badimia working group meeting held in Mount Magnet on 24 June 2004 and that the native title party consents to the proposed act being done. The application further states that there are “logistical difficulties” in obtaining all signatures on a State Deed in a timely manner.
The hearing
On 14 September 2004 the Tribunal conducted a hearing at which the representatives of the parties confirmed their consent to the future act determination in the terms sought. The native title party representatives confirmed that the native title party had consented to the grant of the proposed mining lease in accordance with its accepted method for obtaining agreement and as set out in paragraph 10 of the application.
The “logistical difficulties” in obtaining signatures to the State Deed of all persons named as part of the Badimia applicant, including Mr Frank Walsh Jnr’s refusal to sign, were explained in similar matters (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; Albert Little & others on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/15, [2004] NNTTA 63 (16 July 2004), Hon C J Sumner). In this matter the principal logistical difficulty is the refusal of Mr Frank Walsh Jnr to sign a State Deed which is consistent with his current attitude of not signing other documents relating to the business of the native title party. He did not attend the working group meeting at Mt Magnet. The law in relation to who is a native title party is settled. A native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20] and Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner at [13]-[28]). Despite Mr Walsh Jnr’s refusal to sign I am satisfied that the claim group as a whole consents to the determination sought. I repeat my comment made in WF04/12 (at [7]) that a s 35 application should not just rely on a formula of words taken from other matters but should set out the correct position. More specific reasons for seeking a consent determination set out in the s 35 application will assist the processing of these matters.
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 Yamatji’s representatives on whether the appropriate consent has been given by the native title party. In this matter a legal representative from Yamatji (Mr Raf Melerski) was also present during the hearing.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Lease M59/493 to Henry Joseph Jones, may be done.
Hon C J Sumner
Deputy President
15 September 2004
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