Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des...

[2002] NNTTA 194

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of Badimia WC96/98/Darron Edward McNab/Western Australia, [2002] NNTTA 194
(23 August 2002)

Application No:        WF02/24 (P58/1092)

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, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of Badimia WC96/98 (Applicant/Native title party)

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Darron Edward McNab  (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:  23 August 2002

Catchwords:    Native title - future act - application for determination for the grant of a prospecting licence - 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 C J Sumner, 22 June 2001

Hearing Date:                 22 August 2002

Counsel for the

native title party:            Ms Frances Flanagan, Yamatji Land & Sea Council

Representative of the

grantee party:                 Mr Kevin Connell, Statewide Tenement & Advisory Services Pty Ltd

Representatives of the     Mr Rod Wahl, Crown Solicitor’s Office

Government party:         Ms Faye Mitchell, Department of Mineral and Petroleum Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 28 July 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 prospecting licence P58/1092 (‘the prospecting licence’), under the Mining Act 1978 (WA) to Darron Edward McNab.

2. The native title party  in respect of these proceedings is:

Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of Badimia WC96/98.

1. On 28 January 2000, the Tribunal determined by consent of all parties that the grant did not attract the expedited procedure (WO99/229).

2. On 16 August 2002, 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 above prospecting licence.

3. The applicant has requested a consent determination that the act 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

4. On 22 August 2002, the Tribunal conducted a hearing. The prospecting licence is the subject of an agreement (tendered in evidence) reached between the grantee and the native title parties to allow for the grant of the tenement (P58/1092) executed at a working group meeting in Mount Magnet on 13 August 2002 which was attended by the grantee party’s representative. The working group for the Badimia Claim has been authorised by the native title party to enter into agreements of this kind. The agreement is based upon an undertaking by the grantee to fund and facilitate a heritage survey within the proposed tenement prior to undertaking certain ground disturbing activities. A State Deed (agreement of the kind mentioned in s 31(1)(b) of the Act) has not been executed by all of the negotiation parties for reasons of administrative efficiency as travel would be required to each of the registered native title claimants who live throughout the region of the claim and elsewhere.

5. The representatives of all parties have signed a document 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 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 s31(1)(b) of the Native Title Act 1993.

   3.The Government Party, the Grantee Party and the Native Title Party consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of exploration licence P58/1092 may be done pursuant to the agreement entitled ‘YAMATJI LAND AND SEA COUNCIL CONTRACT FOR SERVICES IN RELATION TO EXPLORATION” dated 13 August 2002.’

Point 3 refers to an ‘exploration licence’ but it is clear that the proposed future act is the grant of prospecting licence P58/1092.

1. At the hearing all parties through their representatives, Ms Frances Flanagan, counsel for the native title party represented by the Yamatji Land & Sea Council (the Native Title Representative Body for the Badima Claim area), Mr Kevin Connell, the grantee party representative and Mr Rod Wahl of the Crown Solicitor’s Office for the Government party, confirmed their consent to the determination requested. I am satisfied on the evidence provided that the native title party consents to the determination being sought. As a heritage survey will be carried out pursuant to the Agreement there is unlikely to be any interference with sites of significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence P58/1092 to Darron Edward McNab, may be done pursuant to the agreement entitled ‘YAMATJI LAND AND SEA COUNCIL CONTRACT FOR SERVICES IN RELATION TO EXPLORATION” dated 13 August 2002.

Hon C J Sumner
Deputy President

23 August 2002