Billy Patch and Others on behalf of the Birriliburu People/Wilma Freddie and Others on behalf of the Wiluna People/Western Australia/Empire Resources

[2006] NNTTA 146

NATIONAL NATIVE TITLE TRIBUNAL

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

Application No: WF06/79

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) (Birriliburu native title party/Co-Applicant)

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Wilma Freddie and Others on behalf of the Wiluna People (WC99/24) (Wiluna native title party/Co-Applicant)

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The State of Western Australia (Government party)

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Empire Resources Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:                   John Catlin, Member

Place:  Perth
Date:  1 November 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, 203B, 203BB, 203BC

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia, NNTT WF01/2 [2001] NNTTA 50 (22 June 2001) 164 FLR 361, Hon CJ Sumner

Hearing date:  1 November 2006

Representative of the           Mr Brenton Parry, Western Tenement Services
Grantee party:  

Counsel for the  Ms Katherine Hill
native title parties:                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 Empire Resources Ltd (‘the grantee party’).

   ·E69/1729 – 17 October 2001; and

   ·E69/1826 – 10 July 2002

2. The native title parties in respect of these proceedings are:

   •Billy Patch and Others on behalf of the Birriliburu Native Title Claimants (WC98/68 – registered from 29 September 1998), (‘the Birriliburu native title party’)

   •Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24 – registered from 24 September 1999, (‘the Wiluna native title party’)

3. The area, location and extent to which each of the proposed licences is overlapped by each of the native title parties is as follows: 

·      E69/1729 – 216.73 square kilometres, 171 kilometres north east of Wiluna in the Shire of Wiluna – 72.37 per cent overlapped by the Birriliburu native title party and 27.62 per cent overlapped by the Wiluna native title party; 

·E69/1826 – 74.42 square kilometres, 189 kilometres north east of Wiluna in the Shire of Wiluna – 40.43 per cent overlapped by the Birriliburu native title party and 59.56 per cent overlapped by the Wiluna native title party.

1. On 9 October 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 parties, made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The native title parties requested that the future act determination be made by consent.

2. According to documents provided by DoIR, evidence is that on 4 January 2005 Palladium Resources Limited changed names to White Gold Mining Limited.  On 9 December 2005 White Gold Mining Limited changed names to Empire Resources Limited.

3. Appended to the application is a minute of a consent determination in the following terms, executed by Ms Sian Hanrahan on behalf of the native title party and subsequently by Mr Brenton Parry on behalf of the grantee party and Mr Jeff O’Halloran 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 first and second Native Title Parties 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 first and second Native Title Parties 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 69/1729 and 69/1826 may be done’

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. Ngaanyatjarra Council 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, NNTT WF01/2 [2001] NNTTA 50 (22 June 2001) 164 FLR 361, Hon CJ Sumner).

5. 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 69/1729 and 69/1826 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 69/1729 and 69/1826 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 Wiluna NNTT No WC99/24 (WAD6164/98) and Birriliburu People NNTT No. WC98/68 (WAD6284/98) 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 November 2006 the Tribunal conducted a hearing.  All parties confirmed their consent to the determination in the terms sought.  Ms Hill, counsel for both native title parties, advised she was satisfied that she had been properly instructed by the native title parties to consent to the determination. 

2. As the designated 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 Licences 69/1729 and 69/1826 to Empire Resources Ltd, may be done.

John Catlin
Member

1 November 2006