Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd - [2006] NNTTA 132

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/De Grey Mining Ltd [2006] NNTTA 132
Case: [2006] NNTTA 132
Decision Date: 21 September 2006

CaseChat Overview and Summary

In the case of Billy Atkins and others on behalf of the Gingirana Native Title Claimants versus Western Australia and De Grey Mining Ltd, the dispute centred on the grant of exploration licences to De Grey Mining Ltd over lands claimed by the Gingirana Native Title Claimants. The Federal Court of Australia was tasked with determining whether the proposed act of granting the exploration licences could proceed under the Native Title Act 1993 (Cth). The Gingirana Native Title Claimants consented to the grant of the exploration licences, subject to the execution of a Regional Standard Heritage Agreement by De Grey Mining Ltd, which they agreed to abide by.

The primary legal issue was whether the court could make a consent determination under section 31(1)(a) of the Native Title Act, given the logistical difficulties in obtaining signatures from the native title holders to a State Deed, as well as the consent of the native title party to the proposed act. The court had to consider if the logistical difficulties and the consent of the native title party constituted sufficient grounds for a consent determination, and if the Regional Standard Heritage Agreement was adequate to protect the native title party's interests.

The court held that the logistical difficulties in obtaining signatures from the native title holders to a State Deed were legitimate grounds for seeking a consent determination. It accepted that the Regional Standard Heritage Agreement, which was endorsed by the Ngaanyatjarra Council, the government party, and industry, provided an adequate framework to protect the native title party's interests. The court also found that the native title party had properly consented to the proposed act, and that the Regional Standard Heritage Agreement was sufficient to ensure that the grantee party would abide by its provisions.

In light of these findings, the court made a consent determination 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. The determination was made in accordance with section 31(1)(a) of the Native Title Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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: 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. 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.