Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/Diamond Exploration Pty Ltd

[2006] NNTTA 140

NATIONAL NATIVE TITLE TRIBUNAL

Billy Atkins and Others on behalf of the Gingirana Native Title Claimants/Western Australia/Diamond Exploration Pty Ltd, [2006] NNTTA 140 (20 October 2006)

Application No: WF06/76

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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Diamond Exploration Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  John Catlin, Member

Place:  Perth
Date:  20 October 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, 109

Cases: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

Hearing date:            Not applicable (on the papers)

Representative of the           Mr Mike Wheeler, Tenement Exploration Services
Grantee party:  

Counsel for the  Mr Malcolm O’Dell
native title party:                  Ngaanyatjarra Council (Aboriginal Corporation)

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 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 two exploration licences listed below (‘the proposed licences’) under the Mining Act 1978 (WA) to Diamond Exploration Pty Ltd (‘the grantee party’).

   ·E69/1851 – 24 September 2003; and

   ·E69/1852 – 12 February 2003

2. The native title party in respect of these proceedings is Billy Atkins and Others on behalf of the Gingirana Native Title Claimants (WC06/2).

3. The  proposed licences are overlapped 100 percent by the native title party’s claim and the area and location is as follows: 

   ·E69/1851 – 217.64 square kilometres, 174 kilometres north of Wiluna – Shire of Meekatharra and Shire of Wiluna;

·      E69/1852 – 217.57 square kilometres, 174 kilometres north of Wiluna – Shire of Wiluna. 

1. On 4 September 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.

2. 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 Mike Wheeler 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 a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licences 69/1851 and 69/1852 may be done’

1. 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 69/1851 and 69/1852 the subject of this consent determination.  The grantee party and the native title parties 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 the Exploration Licences 69/1851 and 69/1852 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.’

1. Submitted prior to the hearing, was an affidavit sworn on 1 September 2006 of Malcolm O’Dell, counsel for the native title party. The contents of this affidavit was considered by myself in 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) (‘De Grey Mining’) and are also applicable to this matter.  At paragraphs [9] and [10] of that determination I noted that the Tribunal accepted the evidence of the native title party's legal representative on whether the appropriate consent has been given and as a consequence, I was satisfied that the native title party had consented to that determination.

The inquiry

1. Given the reasons for seeking a consent determination were explored in 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 in relation to the Gingirana native title party

1. 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 purposes of the determination.

2. Para [6] that the Tribunal has power to make a consent determination.

3. Paras [7]-[8] dealing with the facts giving rise to the applications for a consent determination.

4. Paras [9]-[10] including the findings relating to the responsibilities of the Ngaanyatjarra Council (Aboriginal Corporation) as the recognised representative body under the Act to protect the interests of native title holders, 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 advise of Ngaanyatjarra Council’s legal representations on whether the appropriate consent has been given by the Gingirana native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licences 69/1851 and 69/1852 to Diamond Exploration Pty Ltd, may be done.

John Catlin
Member

20 October 2006