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

Case •

[2004] NNTTA 63

•

16 July 2004

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little & others on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, [2004] NNTTA 63 (16 July 2004)

Application No:        WF04/15

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 & others 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: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

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

Counsel for the
native title party:          Ms Frances Flanagan, Yamatji Land and 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

  1. On 11 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 exploration licence E59/893, covering an area of 23.8 square kilometres, 45 kilometres southerly of Paynes Find in the Shire of Sandstone, under the Mining Act 1978 (WA) to Maroubra Pty Ltd & Seaprince Holdings Pty Ltd (‘the grantee party’).

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

  3. On 9 July 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 E59/893. 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.

  4. The applicant seeks a determination by consent.  A document signed by representatives of the parties evidences the consent 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 Exploration Licence E59/893 may be done pursuant to the agreement between Seaprince Holdings Pty Ltd & Maroubra Pty Ltd and the Badimia People dated 4th July 2004.’

  5. 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).

  6. On 13 July 2004 the Tribunal conducted a hearing.  Representatives of the native title party from Yamatji (which included legal representative Ms Frances Flanagan) advised the Tribunal that at a Badimia working group meeting held on 23 June 2004 a Standard Heritage Agreement negotiated by the Government party and Yamatji for use where the Government party proposes to grant an exploration licence was introduced and endorsed by the group.  This endorsement means that Yamatji generally have the authority to sign a Standard Heritage Agreement on behalf of the Badimia claimants for the grant of exploration licences.

  7. On 24 June 2004, Ms Gloria Giles representative for the grantee party met with the working group to discuss E59/893.  The Tribunal was advised by Yamatji representatives that during this meeting the group authorised Yamatji:

  • to execute the Standard Heritage Agreement in respect of this tenement; and

  • to seek a consent determination in respect of this tenement, owing to the logistical difficulties in obtaining the necessary signatures required to execute a State Deed.

  1. 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.

  2. The Standard Heritage Agreement relating to this tenement was executed by Yamatji on 4 July 2004.  In a similar matter involving the Badimia claimants (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 at para [7]) I accepted that there had been logistical difficulties in obtaining the signatures of all 16 of the persons named as part of the Badimia applicant for native title (and registered native title claimant) as it took some eight months to obtain 15 signatures. It is a reasonable inference that similar logistical difficulties in obtaining the necessary signatures will exist in this matter. In addition to the logistical difficulties in WF04/12, one of the persons named as part of the applicant (Frank Walsh (Jnr)) refused to sign the State Deed. I accept that it is possible that he will refuse to sign a State Deed in this matter.

  3. 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]; 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 am satisfied that despite the anticipated refusal of one of the named applicants to sign the State Deed the claim group as a whole consent to the determination.

  4. A further factor which supports the making of a consent determination is that the Standard Heritage Agreement is part of the evidence before the Tribunal.  It provides for Aboriginal heritage protection including the carrying out of heritage surveys.  The agreement does not contain any conditions which it would be beyond the power of the Tribunal to impose as part of a determination.  Accordingly, a determination that the act may be done ‘pursuant to the agreement’ is appropriate (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)

Determination

  1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E59/893 to Maroubra Pty Ltd & Seaprince Holdings Pty Ltd may be done pursuant to the agreement between Seaprince Holdings Pty Ltd and Maroubra Pty Ltd and the Badimia People dated 4 July 2004.

Hon C J Sumner
Deputy President
16 July 2004

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