Billy Patch and Others on behalf of the Birriliburu/Empire Resources Ltd/Western Australia

[2006] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Billy Patch and Others on behalf of the Birriliburu/Empire Resources Ltd/Western Australia, [2006] NNTTA 46 (1 May 2006)

Application No:         WF06/13

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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Empire Resources Ltd (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, 203B, 203BB, 203BC

Cases: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)

Representatives of the             Mr Brenton Parry, Western Tenement Services

grantee party:  Mr Adrian Jessup

Representatives of the             Mr Rod Wahl, State Solicitor’s Office
Government party:                   Mr Janice Godwin, Department of Industry & Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 17 October 2001 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 E69/1728 (‘the proposed licence’) under the Mining Act 1978 (WA) to Palladium Resources Ltd (‘the grantee party’). The proposed licence comprises an area of some 133.3 square kilometres, and is located 168 kilometres north easterly of Wiluna in the Shire of Wiluna.

2. The grantee party subsequently underwent two name changes, from Palladium Resources Ltd to White Gold Mining Ltd in December 2003 and to Empire Resources Ltd in November 2005.

3. The native title party with respect to these proceedings is Billy Patch and Others on behalf of the Birriliburu People (Claim No. WC98/68), and the registered claim entirely overlaps the proposed licence.

4. On 11 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.

5. 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 subsequently executed by Mr Adrian Jessup 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 Licence 69/1728 may be done.’

1. 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).

2. 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 69/1728 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….

1. 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

1. 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.

2. As the recognised representative body under the Act, Ngaanyatjarra Council has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives and representative body on whether the appropriate consent has been given by the native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E69/1728 to Empire Resources Ltd (formerly Palladium Resources Ltd and White Gold Mining Ltd), may be done.

Hon C J Sumner
Deputy President
1 May 2006