Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/Audax Resources Ltd
[2008] NNTTA 58
•1 May 2008
NATIONAL NATIVE TITLE TRIBUNAL
Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/Audax Resources Ltd, [2008] NNTTA 58 (1 May 2008)
Application No: WF08/14
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
Billy Atkins and Others on behalf of the Gingirana Native Title Claimants (WC06/2) (Applicant/native title party)
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The State of Western Australia (Government party)
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Audax Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 1 May 2008
Catchwords: Native title – future act – application for determination for the grant of exploration licence – logistical difficulties – Standard Heritage Agreement – native title party consents to determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner
Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd, NNTT WF06/70, [2006] NNTTA 131 (21 September 2006), Member John Catlin
Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd, NNTT WF06/71, [2006] NNTTA 132 (21 September 2006), Member John Catlin
Hearing date: Determination made on the papers
Representative of the Mr Leith Beal, Audax Resources Ltd
Grantee party:
Counsel for the Mr Malcolm O’Dell
native title party: Central Desert Native Title Services Limited
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Thomson, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 30 November 2005, 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 E52/1803 (‘the proposed licence’) under the Mining Act 1978 (WA) to Audax Resources Ltd (‘the grantee party’).
The proposed licence comprises an area of 142.95 square kilometres located 175km northerly of Wiluna in the Shire of Meekatharra. The proposed licence is 100 per cent overlapped by the registered claim of the Gingirana Native Title Claimants (WC06/2 – registered from 13 April 2006).
The native title party in respect of these proceedings is:
· Billy Atkins, Miriam Atkins, Slim Williams, Kate George, Stan Hill, Anthony Charles on behalf of the Gingirana Native Title Claimants (WC06/2) (‘the native title party’).
On 28 March 2008, being a date more than six months after the s 29 notice was given, the Gingirana native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’) in relation to the proposed licence. The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently by Mr Gary Roper on behalf of the grantee party and Mr Jeff O’Halloran 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 Exploration Licence 52/1803 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 their consent. The Central Desert Native Title Services Limited (‘CDNTS’) is the recognised representative body under the Act for the Gingirana native title party. 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 reasons for seeking a consent determination are set out in paragraph 10 of the application which states the following:
‘1. The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act.
2. The native title party consents to the proposed act being done, that is the grant of the Exploration Licence 52/1803 the subject of this consent determination. The grantee party and the native title party confirm that a Standard Heritage Agreement has been executed between them dated 23 August 2006 and the grantee party agrees to abide by the provisions of that agreement and that the Exploration Licence 52/1803 can therefore be granted in pursuance to the consent determination.
3. There are logistical difficulties in arranging for the Native Title Party to execute a State Deed and ancillary agreement in respect of the tenement sought by the Grantee Party as contemplated by s.31(1)(b) of the Native Title Act. These logistical difficulties include arranging for travel for a solicitor from the Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to Newman, the time taken to arrange a meeting with the named applicants on native title Claim Gingirana NNTT No WC06/02 (WAD6002/03) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.’
The Gingirana native title party and the grantee party have executed a Standard Heritage Agreement and because logistical difficulties preclude the execution of the State Deed by the Gingirana native title party, the Tribunal must consider whether the matter can be resolved by way of consent determination.
The inquiry
The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the applicants to State Deeds in the Ngaanyatjarra region, referred to in paragraph 10 of the application, as a legitimate basis for seeking a consent determination (see for example Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner). I adopted the findings from paragraph 9 of that determination in subsequent consent determination applications in relation to the Gingirana native title party. These findings are in relation to the responsibilities of the CDNTS as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. (See Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd, NNTT WF06/70, [2006] NNTTA 131 (21 September 2006), Member John Catlin at para [10], Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd, NNTT WF06/71, [2006] NNTTA 132 (21 September 2006), Member John Catlin at para [10] (De Grey Mining).
Given the reasons for seeking a consent determination were explored in the De Grey Mining, I sought submissions from parties on the appropriateness of conducting the inquiry 'on the papers' (ie. without a formal hearing). As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.
Findings
As the law and facts relating to the Gingirana native title party’s consent to a determination that the proposed licence may be granted are the same as considered in De Grey Mining, I adopt the findings from the following paragraphs of those reasons for the purpose of this determination.
Para [6] that the Tribunal has the power to make a consent determination.
Para [7] dealing with the facts from paragraph 10 of the application for a consent
determination.
Para [10] which include the findings relating to the responsibilities of the CDNTS as the recognised representative body under the Act to protect the interests of the native title party, the manner in which the Tribunal is to carry out its functions under s 109 of the Act and that the Tribunal is entitled to accept as evidence the advice of the CDNTS’ legal representations on whether the appropriate consent has been given by the Gingirana native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence 52/1803 to Audax Resources Ltd, may be done.
John Catlin
Member
1 May 2008
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