Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd
[2004] NNTTA 62
•16 July 2004
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, [2004] NNTTA 62 (16 July 2004)
Application No: WF04/12
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 & Ors on behalf of the Badimia People (WC96/98) (native title party)
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The State of Western Australia (Government party)
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Maroubra Pty Ltd & Seaprince Holdings Pty Ltd (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 licence – 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: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 & Sea Council
native title party: Mr Cedric Davies, Yamatji Land & Sea Council
Counsel for the
native title party: Ms Frances Flanagan, Yamatji Land & Sea Council
Representative of the Ms Gloria Giles, Maroubra Pty Ltd & Seaprince Holdings Pty Ltd
grantee party: Mr Phillip Power, Soldo Partners
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
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 under the Mining Act 1978 (WA) of exploration licence E59/939, covering an area of 59.62 square kilometres, 35 kilometres southerly of Paynes Find in the Shire of Yalgoo/Mount Marshall, to Maroubra Pty Ltd & Seaprince Holdings Pty Ltd (‘the grantee party’).
The native title party in respect of these proceedings is Albert Little and Others on behalf of the Badimia People (WC96/98).
On 25 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 of the Act in relation to exploration licence E59/939. The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Badimia native title claim and has represented the native title party in these proceedings.
The parties consent to a determination that the act may be done. 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 v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361).
On 13 July 2004 the Tribunal conducted a hearing. A minute in the following terms, signed by the representatives of the parties, was before the Tribunal:
‘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 Parties consent to a determination under s38 of the Native Title Act that the ‘act’ being the grant of Exploration Licence E59/939 may be done.’
Paragraph 10 of the s 35 Application provides the following basis for seeking a consent determination:
‘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 the application for this determination because of the logistical difficulties of obtaining all signatures on the state deed and agreement in a timely manner. Fifteen (15) 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.
The Native Title Party consents to the proposed act being done, that is the grant of licence E59/939. The native title party confirmed its consent at a Badimia working group meeting held in Mt Magnet on 24th June 2004.’
At the hearing, the representatives of the native title party from Yamatji explained that there had been logistical difficulties in obtaining the signatures of all persons named as part of the applicant but confirmed that 15 of the 16 had executed the State Deed (an agreement of the kind mentioned in s 31(1)(b) of the Act between all three negotiation parties) and an Ancillary Agreement (an agreement between the native title and grantee parties only). The fact that it has taken since 16 September 2003 to obtain these signatures is consistent with the existence of these logistical difficulties. However, the native title party representatives also informed the Tribunal that the final signature from Frank Walsh (Jnr) one of the persons named as the applicant could not be obtained because he has refused to sign. This reason goes beyond the logistical difficulties referred to in paragraph 10 of the application. In future the Tribunal expects that a s 35 application will set out the correct position and not simply rely on a formula of words taken from other matters.
The native title party representatives also confirmed the information in the second paragraph of paragraph 10 of the application namely that a Working Group meeting of Badimia claimants on 24 June 2004 agreed to the grant of E59/939 and to the consent determination application. I also accept, based on the information from the native title party representatives, that the Working Group has the authority of the claimant group to make such a decision in accordance with the Act. 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.
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]). This means that the refusal of one of the persons named as an applicant to consent to the grant is not determinative of whether the native title party comprising the claim group as a whole consents. I am satisfied that, despite the refusal of one of the named applicants to sign the State Deed and Ancillary Agreement, the claim group as a whole (i.e. the native title party) consents to the determination sought.
A further factor which supports the making of a consent determination is that the Ancillary Agreement ‘Native Title Deed between Seaprince Holdings Pty Ltd, Maroubra Pty Ltd and the Badimia People’ dated 24 September 2003 contains provisions for the protection of Aboriginal heritage.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E59/939 to Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, may be done.
Hon C J Sumner
Deputy President
16 July 2004
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