Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia

[2006] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Benny Duncan and  Others on behalf of the Ngarrawanji People/Maggie John and  Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, [2006] NNTTA 54 (15 May 2006)

Application No:        WF06/5

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

- and -

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

Benny Duncan and  Others on behalf of the Ngarrawanji People (WC96/75) (Applicant/Ngarrawanji native title party)

- and -

Maggie John and  Others on behalf of the Malarngowem People (WC99/44) (Malarngowem native title party)

- and -

Vageta Pty Ltd (grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Dan O’Dea, Member

Place:  Perth
Date:  15 May 2006

Catchwords:  Native title — future act — application for determination for the grant of prospecting licences — executed ancillary agreement — logistical difficulties preclude execution of a State Deed — native title party as a whole consent to the determination — consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss 29, 31(1)(b), 35, 38, 203B, 203BB, 203BC, 109

Mining Act 1978 (WA)

Cases:Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing dates:  26 April 2006; 12 May 2006

Representative of the
native title party:                 Ms Ania Maszkowski, Kimberley Land Council

Counsel for the
native title party:                 Ms Christine Michael and Mr James Tapueluelu, Kimberley
  Land Council

Representative of the
grantee party:  Mr Nicholas Powrie, Tenement Administration Services Pty Ltd

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:              Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 13 May 1997, 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 E80/2215 (‘the proposed licence’) under the Mining Act 1978 (WA) to Vageta Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. The native title party with respect to these proceedings is:

   ·     Maggie John, Partick Mung, Chocolate Thomas, Pearl Gordon, Goody Barrett, Lena Nyadbi, Churchill Cann, Hector Chunda, Paddy McGinty, Bernard Stretch, Norman Thomas, Shirley purdey, Phyllis Gallagher, Rusty Peters, Rammel Peters, Mabel Peters, Gordon Barney, Topsy Springval Mary Thomas and Queenie Malgil on behalf of the Malarngowem People (WC99/44) (‘the Malarngowem native title party’); and

   ·     Benny Duncan, Connie Jugarie, Doris Fletcher, Effie Williams, Eileen Cox, Ethel Walgal, Felicity Smith, Gladys Ngarnkal, Josephine Farrer, Mavis Wallaby and Monty Hale on behalf of the Ngarrawanji People (WC97/28) (‘the Ngarrawanji  native title party’).

3. The proposed licence covers an area of 61.92 square kilometers, 30km north easterly of Halls Creek, and has an 85% overlap with the registered claim of the Malarngowmen native title party and 14% overlap with the registered claim of the Ngarrawanji native title party.

4. On 21 July 1997 an objection to the inclusion of the expedited procedure statement in relation to the proposed licences were lodged by Rammel and Rusty Peters (WO97/211), the named applicants for claim WC97/59 (‘Rammel Peters and Rusty Peters’). On 21 November 1997, the Tribunal made a determination by consent that the expedited procedure was not attracted, with the consequence that normal negotiation procedure provided for in s 31 of the Act applied from that date.

5. On 6 January 1999 a State Deed was lodged with the Tribunal signed by Rammel and Rusty Peters and all other negotiation parties. After lodgment of the State Deed, in early 1999, Rammel and Rusty Peters’ native title determination application (WC97/59) was combined into the Malarngowem native title claim (WC99/44), with both becoming part of the applicant group. I have sighted a copy of the State Deed and am satisfied that it is an agreement of the sort referred to in s.31 of the Act. As a consequence the Malarngowem native title party played no active part in these proceedings.

6. On 10 February 2006, being a date more than six months after the normal negotiation period commenced, the Kimberley Land Council (‘KLC’) on behalf of the Ngarrawanji People, made an application pursuant to s 35 of the Act for a future act determination under s 38. KLC is the designed representative body for native title claimants in the Kimberley region pursuant to s 203B of the Act and as such has authorisation to act on behalf of the Ngarrawanji People. Paragraph 10 of the application asserts that the parties reached agreement about the doing of the act and have in place an “Ancillary Heritage and Native Title Agreement”. The application goes on to state that there ‘are logistical difficulties in arranging for the Native Title Party to execute a State Deed. These logistical difficulties include extreme wet season, access to the claimants in remote areas, resources in the KLC and Law business.”

7. Appended to the s 35 determination application is an affidavit sworn by Athlea Gae Sullivan, Manager of the Native Title Services Unit of the KLC. Ms Sullivan deposes as follows:

‘1.‘I am employed by the Kimberley Land Council Aboriginal Corporation (“the KLC”) in the position of Native Title Services Unit Manager.  I am responsible in that position for the management and supervision of Native Title Services staff employed by the KLC.

1. Prior to my appointment on 23 January 2006, as the Native Title Services Unit Manager, I was employed by the KLC as the Senior Native Title Officer in the East Kimberley.  In that position I was responsible for all native title claims in the East Kimberley under the direction of the Native Title Services Unit Manager.

2. The Ngarrawanji and Malarngowem claimants (“the claimants”) have provided KLC with instructions in relation to the negotiation of Heritage Protection Agreements.

3. I believe that enstry into a Consent Determination is consistent with the instructions of the    claimants’

4. Also appended to the s 35 determination application is a minute of a consent determination in the following terms executed by Wayne Bergman for and on behalf of the native title party and which has since been executed in counterparts by Mr Nicholas Powrie on behalf of the grantee party, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:

‘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 Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of APPLICATION FOR EXPLORATION LICENCE 80/2215 may be done.’

4. 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).

The Inquiry

1. On 26 April 2006, the Tribunal conducted a hearing. Mr James Tapueluelu from KLC appeared as counsel for the native title party, Mr Nicholas Powrie represented the grantee party and Mr Rod Wahl and Ms Fay Mitchell appeared for the Government party.  At the hearing Mr Tapueluelu indicated the KLC was seeking further instructions to clarify the content of Ms Sullivan’s affidavit.  In response I indicated that I did not require confirmation that the Ngarrawanji native title party had instructed the KLC to seek a consent determination, rather I sought some additional information as to the circumstances in which those instructions were obtained.  The hearing was adjourned for three weeks to enable the KLC to obtain that additional information and ensure that an admitted practitioner was in attendance for the native title party.

2. At the further hearing on 12 May 2006, Ms Christine Michael a solicitor employed by the KLC, attended for the Ngarrawanji native title party. Ms Michael advised that she had reviewed documentation in the KLC’s files and had confirmed details with Ms Athlea Sullivan.  On the basis of these inquiries, Ms Michael confirmed that the KLC was given instructions at a claim group meeting on 8 July 2004 at Halls Creek to enter into an agreement with the grantee party and do all necessary ancillary things to give effect to that agreement.

3. I am satisfied, on the basis of this additional information, as to the circumstances in which KLC obtained instructions in this matter.

Findings

1. I take into account that as the representative body under the Act, the KLC 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)); see also Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner at [10]. Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the KLC’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, I am satisfied that the native title party has consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E80/2215 to Vageta Pty Ltd may be done.

Dan O’Dea
Member
15  May 2006