Billy Patch and Others on behalf of the Birriliburu/Adrian Martin Lambert Jessup/Western Australia
[2006] NNTTA 47
•1 May 2006
NATIONAL NATIVE TITLE TRIBUNAL
Billy Patch and Others on behalf of the Birriliburu/Adrian Martin Lambert Jessup/Western Australia, [2006] NNTTA 47 (1 May 2006)
Application No: WF06/14
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 Patch and Others on behalf of Birriliburu (WC98/68) (Applicant/native title party)
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Adrian Martin Lambert Jessup (Grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 1 May 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named native title applicants not signed state deed because of logistical difficulties – Regional Standard Heritage Agreement executed by grantee party – native title party consents to the determination – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 35, 38, 109
Cases:Billy Patch and Others on behalf of the Birriliburu/Empire Resources Ltd/Western Australia, NNTT WF06/13, [2006] NNTTA 46 (1 May 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 1 May 2006
Counsel for the Birriliburu Mr Malcolm O'Dell, Ngaanyatjarra Council (Aboriginal
native title party: Corporation)
Solicitor for the Birriliburu Ms Jasmine Campbell, Ngaanyatjarra Council (Aboriginal
native title party: Corporation)
Representative of the
grantee party: Mr Brenton Parry, Western Tenement Services
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Godwin, Department of Industry & Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 22 September 1999 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 E69/1486 (‘the proposed licence’) under the Mining Act 1978 (WA) to Mr Adrian Martin Lambert Jessup (‘the grantee party’). The proposed licence comprises an area of some 37.17 square kilometres, and is located 170 kilometres north easterly of Wiluna in the Shire of Wiluna.
The native title party with respect to these proceedings are Andy Campbell and Others on behalf of the Birriliburu People (Claim No. WC98/68), and the registered claim entirely overlaps the proposed licence.
On 18 April 2006, being a date more than six months after the s 29 notice was given, 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 in relation to the proposed licence. The native title party requested that the future act determination be made by consent.
The s 35 application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’ for the proposed licence, executed by Mr Malcolm O’Dell on behalf of the native title party and Mr Adrian Jessup on behalf of the grantee party and subsequently by 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 Licence 69/1486 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 recognised 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 s 35 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 Licence 69/1486 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 Licence 69/1486 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 Birriliburu NNTT No WC98/68 (WG6284/98) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.’
The inquiry
On 1 May 2006 the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr O'Dell, counsel for the native title party, advised he was satisfied that he had been properly instructed by the native title party to consent to the determination. He confirmed the matters set out in para 10 of the application and advised that the agreement reached between the native title party and grantee party is based on the Regional Standard Heritage Agreement which had been negotiated and agreed by the Ngaanyatjarra Council, Government party and industry.
I adopt the Tribunal’s findings in para [9] of Billy Patch and Others on behalf of the Birriliburu/Empire Resources Ltd/Western Australia, NNTT WF06/13, [2006] NNTTA 46 (1 May 2006), Hon C J Sumner relating to the formal responsibilities of the Ngaanyatjarra Council as a representative body under the Act and the manner in which the Tribunal is to carry out its responsibilities under s 109 of the Act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E69/1486 to Mr Adrian Martin Lambert Jessup, may be done.
Hon C J Sumner
Deputy President
1 May 2006
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