Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd
[2006] NNTTA 132
•21 September 2006
NATIONAL NATIVE TITLE TRIBUNAL
Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd [2006] NNTTA 132 (21 September 2006)
Application No: WF06/71
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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De Grey Mining Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 21 September 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licences – logistical difficulties – Regional Standard Heritage Agreement executed by grantee party – 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, 41, 109, 203
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 CJ Sumner
Hearing date: 21 September 2006
Representative of the Mr Chris Clegg, Statewide Tenement & Advisory Services
grantee party: Pty Ltd
Counsel for the Ms Katherine Hill
native title party: Ngaanyatjarra Council (Aboriginal Corporation)
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences listed below (‘the proposed licences’) under the Mining Act 1978 (WA) to De Grey Mining Ltd (‘the grantee party’).
·E52/1828 – 16 November 2005; and
·E52/1806, E52/1807, E52/1808 and E52/1809 – 30 November 2005
The native title party in respect of these proceedings is Billy Atkins and Others on behalf of the Gingirana Native Title Claimants (WC06/2).
On 23 August 2006, being a date more than six months after the s.29 notice was given, the Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the native title party, made an application pursuant to s.35 of the Act for a future act determination under s.38 (‘the application’). The native title party requested that the future act determination be made by consent.
The proposed licences are 100 percent overlapped by the native title party’s claim and the area and location is as follows:
·E52/1806 – 217.74 square kilometres, 176 kilometres south of Newman – Shire of Meekatharra;
· E52/1807 – 217.91 square kilometres, 169 kilometres south of Newman – Shire of Meekatharra;
· E52/1808 – 217.96 square kilometres, 170 kilometres south of Newman – Shire of Meekatharra;
· E52/1809 – 217.90 square kilometres, 177 kilometres south of Newman – Shire of Meekatharra and Shire of Wiluna; and
·E52/1828 – 96.41 square kilometres, 179 kilometres south of Wiluna – Shire of Meekatharra.
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 Christopher Clegg on behalf of the grantee party and Mr Rod Wahl 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 the determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licences 52/1806-1809 & 52/1828 may be done’
The Tribunal has the 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. Ngaanyatjarra Council is the designated representative body under the Act for the 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).
Paragraph 10 of the application states the following in describing why a consent determination is being sought:
"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 Licences 52/1806-1809 & 52/1828 the subject of this consent determination. The grantee party and the native title party confirm that a Standard Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licences 52/1806-1809 & 52/1828 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 each 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 Wiluna, 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."
Submitted prior to the hearing, was an affidavit sworn on 1 September 2006 of Malcolm O’Dell, counsel for the native title party, in which he states:
“AFFIDAVIT OF MALCOLM O’DELL
SWORN THE 1ST DAY OF SEPTEMBER 2006
I, Malcolm O’Dell, of Ngaanyatjarra Council (Aboriginal Corporation), Native Title Unit, 170 Wellington Street, Perth in the State of Western Australia, make oath and say as follows:
1. Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.
2. I am a lawyer employed by the Ngaanyatjarra Council (Aboriginal Corporation) and in that capacity I act for the applicant in native title determination application WAD6002/03 - Gingirana (‘the Native Title Party’).
3. On 14 April 2004, I attended a meeting of members of Native Title Party at the Newman Community Centre H-Block about this native title claim and future acts to be done within the claim area.
4. At that meeting the Native Title Party instructed me that they were prepared to adopt the Regional Heritage Agreement in the claim area to the effect that any existing or future application for an exploratory title in the claim area, including any application for an exploration licence under the Mining Act 1978 (WA) could be granted if the grantee party agreed to be bound by the conditions of the Regional Heritage Protection Agreement.
5. At that meeting on 14 April 2004, as well as at previous meetings of the Native Title Party I attended, the Native Title Party made it clear that their intention was that once the relevant grantee party had agreed to be bound by the conditions of the Regional Heritage Protection Agreement, Ngaanyatjarra Council should ensure that the relevant application for an exploratory title was granted in an expeditious manner.
6. Since 14 April 2004, as a result of the instructions I received as mentioned above, numerous applications for exploratory title have been granted under this process.
7. The most expeditious means of having any such an exploratory title granted that is currently in the Right to Negotiate process is through a determination that the future act (the grant of the exploratory title) be done pursuant to section 38 of the Native Title Act 1993 (Cth) because:
a) the State, the grantee and the Native Title Party 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;
b) the Native Title Party has consented to the proposed act being done; and
c) there are logistical difficulties in arranging for the Native Title Party to execute a State Deed and ancillary agreement in respect of each tenement sought by the grantee as contemplated by section 31 (1)(b) of the Native Title Act 1993 (Cth), including arranging for travel for a solicitor from the Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants on the claim and the burden attending such meetings place on the individual applicants themselves, many of whom are elderly or in poor health.
8. I am satisfied that the Native Title Party understands and consents to this course of action (the grant of the exploratory title by determination under section 38 of the Native Title Act 1993 (Cth)).”
The inquiry
On 21 September 2006 the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Ms Hill, counsel for the native title party, advised she was satisfied that she had been properly instructed by the native title party to consent to the determination. Ms Hill confirmed the matters set out in paragraph 10 of the application and advised that the agreement reached between the native title party and grantee party was the Regional Standard Heritage Agreement for exploration endorsed by Ngaanyatjarra Council, the Government party and industry.
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 adopt the findings from paragraph 9 of that determination in relation to the responsibilities of the Ngaanyatjarra Council as a representative body and the manner in which the Tribunal is to carry out its functions under s.109 of the Act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licences 52/1806, 52/1807, 52/1808, 52/1809 and 52/1828 to De Grey Mining Ltd, may be done.
John Catlin
Member
21 September 2006
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