Albert Little and Others on behalf of Badimia/Western Australia/Rubias Teston
[2004] NNTTA 64
•16 July 2004
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of Badimia/Western Australia/Rubias Teston, [2004] NNTTA 64 (16 July 2004)
Application No: WF04/14
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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Rubias Teston (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 July 2004
Catchwords: Native title – future act – application for determination for the grant of exploration licences – native title party as a whole consents to a determination – 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:Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner
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
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
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
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: 13 July 2004
Representative of the Mr Nathan Cammerman, Yamatji Land and Sea Council
native title party: Mr Cedric Davies, Yamatji Land and Sea Council
Counsel for the
native title party: Ms Frances Flanagan, Yamatji Land and Sea Council
Representative of the
grantee party: Ms Elsie Thackwell and Mr Raymond Thackwell, Rubias Teston
Representative of the Ms Gaynor Fitzgerald, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 17 April 2002, 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 Exploration Licences E59/1075 (2.99 square kilometres, 38 kilometres westerly of Paynes Find in the Shire of Yalgoo) and E59/1091 (11.96 square kilometres, 39 kilometres westerly of Paynes Find in the Shire of Yalgoo) (‘the proposed licences’), under the Mining Act 1978 (WA) to Rubias Teston.
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 30 June 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 licences. 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 the Yamatji requesting a consent determination and attaching “an example draft (consent) determination” in the following terms which was subsequently executed in counterparts by each of the parties or their representatives.
‘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 and consent to a determination under s38 of the Native Title Act that the ‘act’ being the grant of Exploration Licences E59/1091 and E59/1075 may be done pursuant to the agreement between Rubias Teston and the Badimia People dated 29 March 2004.’
The s 35 determination application appends an executed copy of an agreement dated 29 March 2004 between the grantee party and Yamatji as agent for the Badimia Claim Group. The agreement follows the form of the Standard Heritage Agreement negotiated by the Government party and Yamatji for use where the Government party proposes to grant an exploration licence. It had been submitted to Yamatji by the grantee party after execution by Rubias Teston on 29 March 2004.
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 licences 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 pursuant to the terms of the ancillary agreement between the native title party and the grantee dated 29 March 2004. The application further states that there are “logistical difficulties”, the nature of which are not revealed, in obtaining all signatures on a State Deed in a timely manner.
The hearing
On 13 July 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. In addition, the Tribunal was informed by representatives of the native title party from Yamatji that at a meeting on 24 June 2004, attended by representatives of the grantee party, the Badimia Working Group agreed to execute the Standard Heritage Agreement in relation to the proposed licences.
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 (Ms Frances Flanagan) was also present during the hearing.
I have examined the terms of the Standard Heritage Agreement and do not consider it contains any conditions which is beyond the power of the Tribunal to impose (see discussion 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), Hon C J Sumner; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner). Accordingly, a determination in the terms sought being ‘pursuant to the agreement’ is appropriate. The Government party agreed that the terms of the proposed determination were within power.
The logistical difficulties in obtaining signatures to the State Deed of all persons named as part of the Badimia applicant 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). I accept that the same difficulties may exist in this matter In addition it is anticipated from evidence in those matters that one of the persons named as part of the applicant (Frank Walsh Jnr) may refuse to sign a State Deed. Nevertheless, I am satisfied that the claimant group as a whole consents to the determination sought. The 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]).
I have also taken into account that the Standard Heritage Agreement (an Ancillary Agreement between the native title and grantee parties) covers heritage protection including the carrying out of heritage surveys.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of Exploration Licences E59/1075 and E59/1091 to Rubias Teston, may be done pursuant to the agreement between Rubias Teston and the Badimia People dated 29 March 2004.
Hon C J Sumner
Deputy President
16 July 2004
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