Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd

[2003] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, [2003] NNTTA 108 (24 October 2003)

Application No:        WF03/15

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Albert Little and Others on behalf of the Badimia People (WC96/98) (native title party)

- and -

The State of Western Australia (Government party)

- and -

Seaprince Holdings Pty Ltd & Maroubra Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:       The Hon C J Sumner, Deputy President

Place:             Perth
Date:              24 October 2003

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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon CJ Sumner, 22 June 2001

Hearing date:                  17 October, 2003

Counsel for the

native title party:            Mr David Ritter, Yamatji Land and Sea Council

Representative of the

native title party:            Mr Cedric Davies, Yamatji Land and Sea Council

Representatives of the

grantee party:                 Ms Gloria Giles, Seaprince Holdings Pty Ltd & Maroubra Pty Ltd

Mr Philip Power, Soldo Partners

Representative of the

Government party:         Mr David Crabtree, Department of Industry and Resources

Representative of the

Government party:         Mr Rod Wahl, Crown Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On 22 September 1999, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act namely the grant under the Mining Act 1978 (WA) of mining lease M59/523 to Seaprince Holdings Pty Ltd & Maroubra Pty Ltd (‘the grantee party’).

2. The native title party in respect of these proceedings is Albert Little and Others on behalf of the Badimia People (WC96/98).

3. On 6 October 2003, being a date more than six months after the s 29 notice was given, the Yamatji Land and Sea Council on behalf of the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act in relation to mining lease M59/523. 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.

4. The National Native Title Tribunal (‘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, Hon C J Sumner, 22 June 2001).

5. On 17 October 2003, the Tribunal conducted a hearing.  Prior to the hearing the parties jointly submitted a minute signed by their representatives in the following terms:

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

   1.The Government Party has complied with the requirements of s31(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 s31(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 s38 of the Native Title Act that the ‘act’ being the grant of Mining Lease M59/523 may be done pursuant to the agreement entitled “Native Title Deed between Seaprince Holdings Pty Ltd, Maroubra Pty Ltd and the Badimia People” dated 24 September 2003.’

1. The ‘Native Title Deed’ referred in the minute was not provided to the Tribunal and the Tribunal has no knowledge of its contents.  The proposed consent determination was to be expressed in terms that the act could be done ‘pursuant to the agreement’ which raised the question whether the terms of the agreement would become conditions of the determination.  While the Tribunal has a broad power to impose conditions there are some limitations, the most specific of which is that the Tribunal cannot impose a condition for payments to be made to a native title party based on the amount of profits made, income derived or things produced by the grantee party as a result of the doing of the future act (s 38(2) NTA; see discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214).

2. The Tribunal is aware that ‘Ancillary Agreements’ between native title parties and grantee parties (i.e. not involving the Government party) in Western Australia sometimes contain terms which could not be made conditions of a determination.  If the Tribunal’s determination were to have the effect suggested above of making the terms of the agreement conditions of the determination then it would not be appropriate to make the proposed determination, without sighting the ‘Native Title Deed’.  If the Tribunal is not aware of the agreement’s contents, there is the possibility that a determination could be made which is not within the Tribunal’s power.

3. After consideration of this issue at the hearing, Mr Ritter, Principal Legal Officer with the Yamatji Land and Sea Council, acting for the native title party indicated that the native title party was prepared to consent to a simple determination that the act may be done without it containing reference to the ‘Native Title Deed’. The other parties, Mr Rod Wahl of the Crown Solicitors Office for the Government party and Phillip Power (Soldo Partners) and Gloria Giles for the grantee party consented to the modification of the proposed determination. Resolution of s 35 applications in this way has happened in other matters with the native title party being prepared to rely on an agreement with the grantee party which is not mirrored in conditions of a Tribunal consent determination (see for instance Yallourn Energy/Terence Ernest Campbell Hood, Regina Lillian Rose, Robert James Farnham, Lindsay Gordon Mobourne and Graham (Bootsie) Thorpe on behalf of the Gunai/Kurnai people/Western Australia, NNTT VF99/1, Hon C J Sumner, 17 September 1999).  While parties contemplating consenting to a determination of this kind should satisfy themselves of the situation in particular cases from their legal advisors I observe that in my view making the terms of an agreement conditions of a determination would not enhance the rights which a native title party would have anyhow under the agreement.  A future act determination subject to conditions has effect as if the conditions were terms of a contract among the negotiation parties, something which is secured by the agreement itself (s 41(1) NTA).

4. I accept the basis for seeking the consent determination set out by the native title party in paragraph 10 of the s 35 Application:

   ‘The parties reached agreement about the act at a Badimia working group meeting held in Mt Magnet on 16 September 2003.  The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed and agreement in a timely manner.  Nine (9) of the sixteen (16) registered claimants for the Badimia WC96/98 claim have executed the state deed and agreement at the time of making this application.’

5. I am satisfied that the native title party consents to the determination in the terms outlined above. I note as asserted by the native title party in para 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 minimized by the ‘Native Title Deed’ referred to in paragraph [5] of this determination and which has now been executed by the grantee party.

Determination

1. The determination of the Tribunal is that the act, being the grant of mining lease M59/523 to Seaprince Holdings Pty Ltd and Maroubra Pty Ltd can be done.

Hon C J Sumner
Deputy President
24 October 2003