Billy Patch and Others on behalf of the Birriliburu People/Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Ucabs Pty Ltd

[2007] NNTTA 70

NATIONAL NATIVE TITLE TRIBUNAL

Billy Patch and Others on behalf of the Birriliburu People/Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Ucabs Pty Ltd [2007] NNTTA 70 (17 August 2007)

Application Nos:      WF07/13 and WF07/14

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 the Birriliburu People (WC98/68) (Applicant/Birriliburu native title party)

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Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (Applicant/Wiluna native title party)

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The State of Western Australia (Government party)

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Ucabs Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:             John Catlin, Member

Place:  Perth
Date:  17 August 2007

Catchwords:  Native title - future act - application for determination for the grant of exploration licences - named applicants not signed state deed - logistical difficulties - Heritage Agreements 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. 29, 31, 35, 38, 109

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361

Billy Patch and Others on behalf of the Birriliburu People/Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Empire Resources, NNTT WF06/79, [2006] NNTTA 146 (1 November 2006), Member John Catlin

Hearing date:  17 August 2007

Representative of the          Mr Chris Clegg
grantee party:  Statewide Tenement and Advisory Service Pty Ltd

Representative of the          Mr Malcolm O’Dell
native title party:                 Central Desert Native Title Services

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:             Ms Janice Goodwin, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 6 February 2002 and 11 December 2002 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 E69/1792 and E38/1467 respectively (‘the proposed licences’) to Ucabs Pty Ltd (‘the grantee party’).

2. The size, location and overlaps of the proposed licences are as follows:

   ·     E69/1792 – 24.73 square kilometres, 278 kilometres northerly of Cosmo Newbery Mission in the Shire of Wiluna, 23.95 per cent overlapped by the registered claim of the Birriliburu People (WC98/68, registered from 29 September 1998) and 76.05 per cent overlapped by the registered native title claim of the Wiluna People (WC99/24, registered from 24 September 1999).

   ·     E38/1467 – 24.62 square kilometres, 179 kilometres easterly of Wiluna in the Shire of Wiluna, 100 per cent overlapped by the registered native title claim of the Wiluna People.

3. To the extent each overlap the proposed licences, the native title parties with respect to these proceedings are:-

   ·      Alan Ashwin, Barry Abbott, Billy Patch, Dusty Stevens, Friday Jones, Jimmy Morgan, Joyce Tullock, Judy Ashwin, Kenny Farmer, Kitty Richards, Les Tullock, Margie Jackman, Mickey Wongawol, Norman Thompson, Wilma Freddie on behalf of the Wiluna Native Title Claimants (WC99/24)

   ·     Andy Campbell, Billy Patch, Bruce Richards, Colin Richards, Dusty Stevens, Frank Wongawol, Geoffrey Stewart, Johnny Ray, Kenny Farmer, Margie Jackman, Musso Morrison, Wilma Freddie on behalf of the Birriliburu People (WC98/68)

1. On 19 July 2007, being a date more than six months after s.29 notice was given Central Desert Native Title Services on behalf of the native title parties made applications pursuant to s.35 of the Act for a future act determination under s.38 (designated WF07/13 in respect of E69/1792 and WF07/14 in respect of E38/1467).

2. The native title parties requested that the future act determination be made by consent and appended minutes of a consent determination in identical terms, with the exception of the proposed leases relevant to each application, executed by Mr Malcolm O’Dell on behalf of the native title parties and subsequently executed by Mr Jeff O'Halloran on behalf of the Government party and Mr Chris Clegg on behalf of the grantee 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 … [the proposed licences] may be done’

3. Paragraphs 10 of the applications explain why a consent determination is sought.  Heritage Agreements have been reached between the native title parties and the grantee party however:

   "There are logistical difficulties in arranging for the Native Title Parties 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 Central Desert Native Title Services Limited to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants ... and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.”

4. 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. Central Desert Native Title Services is the designated representative body under the Act for the native title parties. 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).

The inquiry

1. On 17 August 2007 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought.  Mr Malcolm O’Dell, counsel for the native title parties, advised he was satisfied that Central Desert Native Title Services had been properly instructed by the native title parties to consent to the determination.

2. The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna and Birriliburu applicants to a State Deed, referred to in paragraph 10 of the applications, as a legitimate basis for seeking a consent determination (see for example Billy Patch and Others on behalf of the Birriliburu People/Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Empire Resources, NNTT WF06/79, [2006] NNTTA 146 (1 November 2006), Member John Catlin). I adopt the findings from paragraph 10 of that determination in relation to the responsibilities of Central Desert Native Title Services as a representative body and the manner in which the Tribunal is to carry out its functions under s.109 of the Act.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of the exploration licences E69/1792 and E38/1467 to Ucabs Pty Ltd may be done.

John Catlin
Member

17 August 2007