Bunuba People; Gooniyandi Combined # 2/Western Australia/Bernfried Gunter Franz Wasse, Paul Winston Askins, James Ian Stewart

[2008] NNTTA 72

NATIONAL NATIVE TITLE TRIBUNAL

Bunuba People; Gooniyandi Combined # 2/Western Australia/Bernfried Gunter Franz Wasse, Paul Winston Askins, James Ian Stewart, [2008] NNTTA 72 (9 June 2008)

Application No:        WF08/21

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

Bunuba People (WC99/19) (Applicant/native title party)

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Gooniyandi Combined # 2 (WC00/10) (Applicant/native title party)

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The State of Western Australia (Government party)

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Bernfried Gunter Franz Wasse, Paul Winston Askins, James Ian Stewart (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea, Member

Place:  Perth
Date:  9 June 2008

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – Heritage Protection Agreement – logistical difficulties preclude the execution of the State Deed – native title parties as a whole consent to the determination – consent determination that the act may be done.

Legislation:      Native Title Act 1993 (Cth), ss 29, 31, 35, 38
  Mining Act 1978 (WA)

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

Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd, NNTT WF06/1, [2006] NNTTA 141 (24 October 2006), Daniel O’Dea

Hearing date:   3 June 2008

Counsel for the  Mr Robert Houston
native title party:                 Kimberley Land Council

Representative of the           Mr Lynton Downe
grantee party:  Tenement Administration Services Pty Ltd

Representative 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 24 March 2004, 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 E04/1417 (‘the proposed licence’) under the Mining Act 1978 (WA) to Bernfried Gunter Wasse, Paul Winston Askins and James Ian Stewart (‘the grantee party’). Included in the notice a statement that the Government party considered the grant attracted the expedited procedure (that is, one that can be done without the normal negotiations required by s 31 of the Act).

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

• Name withheld for cultural reasons, name withheld for cultural reasons, name withheld for cultural reasons, Bradley Williams, Rita Dann, Johnny Marr, Isaac Hale and  Danny Marr on behalf of the Bunuba People (WC99/19 – registered from 20 August 1999) (‘the native title party’); and

• Butcher Cherel, David Street, Dora Sharpe, Eric Lawford, John Till, Lorraine Shandley, Maureen Carter, Neville Sharpe, Reenie Chestnut, Rita Shandley, Stanley Holloway, Suzy Lamey, Teddy Cranbell and Topsy Chestnut on behalf of the Gooniyandi Combined # 2 (WC00/10 – registered from 23 April 2001) (‘native title party’).

1. The proposed licence comprises of an area 179.2 square kilometres located 13 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. The proposed licence is 81.2 per cent overlapped by the registered claim of the Bunuba People native title party (WC99/19) and 0.4 per cent overlapped by the registered claim of the Gooniyandi Combined # 2 native title party (WC00/10).

2. The Bunuba People native title party and the Gooniyandi Combined # 2 native title party attained procedural rights as a result of their status as registered native title claimants at the time of the s 29 closing date. For the purposes of this determination, and unless specific reference to an individual native title party is made, the two claim groups will be referred to as the native title parties.

3. On 14 May 2004 Bernfried Gunter Wasse registered an amended name change on the Department of Industry and Resources Mining Tenement Register to Bernfried Gunter Franz Wasse.

4. On 19 July the native title parties lodged Form 4 Objection to Inclusion in an Expedited Procedure Applications in respect of the proposed licence (designated WO04/136 and WO04/137). Contentions and evidence were submitted by the parties and the Tribunal made a Determination on 2 December 2005 that the act is not an act attracting the Expedited Procedure. The proposed licence was placed into the normal negotiation procedure in accordance with s 31 of the Act.

5. On 14 September 2007 the Government party requested Tribunal mediation assistance under s 31(3) of the Act (designated WM07/69 and WM07/70). Following a series of mediation meetings, parties reached agreement and the mediation was finalised on 30 April 2008.

6. On 30 April 2008, being a date more than six months after the s 29 notice was given the native title parties made an application pursuant to s 35 of the Act for a future act determination under s 38 and requested that the future act determination be made by consent.

7. Appended to the s 35 determination application is a minute of a consent determination in the following terms executed by Mr Nolan Hunter on behalf of the native title parties and subsequently executed in counterparts by Mr Lynton Downe 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 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 grant of Exploration Licence E04/1417 may be done.’

1. The Tribunal has 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.  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).

1. Paragraph 10 of the application explains why a consent determination application is sought:

   ‘The Grantee Party and the Native title Party have negotiated in good faith and have reached an agreement about the grant of Exploration Licence 04/1417 and the conduct of activities on the tenement.

   The Kimberley Land Council has not obtained signatures on the State Deed because of logistical difficulties.’

2. On the 20 May 2008 affidavits of Mr Robert Powrie, Principal Legal Officer with the Kimberley Land Council (‘KLC’) and Ms Cecilia Jane Tucker, Native Title Officer with the KLC were submitted in support of the application. Both affidavits affirm that a consent determination is consistent with the instructions of the native title parties.

3. Robert Powrie affirmed on 30^th day of April 2008 the following in relation to the Bunuba People native title party:

   ‘I, Robert Powrie of 36 Pembroke, Broome, in the State of Western Australia, Native Title
   Officer, solemnly and sincerely declare and affirm:

   1.  I am employed as a Principal Legal Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’) and work in the Broome Office.

   2.  On or about 29 August 2006, I attended a meeting in Fitzroy Crossing of the Bunuba Native Title Claim Group.

   3.  At that meeting the Bunuba Native Title Claim Group instructed the KLC to do the following

   a.  Negotiate and enter into Native Title and Heritage Protection Agreements (HPA) with any party seeking to carry out future acts on Bunuba traditional lands, on the terms and conditions contained in the KLC Standard HPA, as approved by the Executive from time to time; and

   b.  To do all things necessary to enter into a consent determination with the Grantee
       if the Grantee has entered into a HPA.

   4.  The KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee
         Party to enter into a Native title and Heritage Protection Agreement (‘HPA’).

   5.  On or about April 2008, the parties reached agreement that the future act may be done,

   subject to the terms and conditions of the HPA.

   6.  I believe that entry into a Consent Determination is consistent with the instructions of the   claimants.

   7.  The preceding paragraphs are true and correct to the best of my knowledge and belief.’

1. Cecilia Jane Tucker affirmed on the 5^th day of May 2008 the following in relation to the Gooniyandi Combined # 2 native title party:

   ‘I, Cecilia Jane Tucker of 6B Mary St, Broome, in the State of Western Australia, Native Title Officer, solemnly and sincerely declare and affirm:

   1.  I am employed as a Native Title Officer by the Kimberley Land Council Aboriginal
        Corporation (‘KLC’) and work in the Broome Office. 

   2.  On or about 25 October 2006, the Gooniyandi Native Title Claim Group instructed the
        KLC to do the following

   a.  Negotiate and enter into Native Title and heritage Protection Agreement (HPA)         with Grantees (Exploration and Mining Companies) seeking access to          traditional lands, on the terms and conditions as contained in the KLC Standard            HPA, as approved by the Executive from time to time; and

   b.  To do all things necessary to enter into a consent determination with the Grantee         if the Grantee has entered into a HPA.

   3.  The KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee
        Party to enter into a Native Title and heritage Protection Agreement (‘HPA’).

   4.  On or about April 2008, the parties reached agreement that the future act may be done,
        subject to the terms and conditions of the HPA.

   5.  I believe that entry into a Consent Determination is consistent with the instructions of the

   claimants.

   6.  The preceding paragraphs are true and correct to the best of my knowledge and belief.’

2. Because logistical difficulties preclude the execution of an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. State Deed) by the native title parties, the Tribunal must consider whether the matter can be resolved by way of consent determination.

The Inquiry

1. On 3 June 2008 the Tribunal conducted a hearing at which Mr Robert Houston from the KLC appeared as counsel for the native title parties and Ms Faye Mitchell represented the Government party. Mr Downe for the grantee party and Mr Rod Wahl for the Government party were unavailable. As the hearing was to confirm the consent of the native title parties in the terms sought, I then sought confirmation from Mr Houston which was subsequently given.

Findings

1. On the basis of the minute of consent executed by all parties, the affidavits of Mr Powrie and Ms Tucker and the information provided by native title party’s counsel at the above hearing, I am satisfied that the native title parties have agreed to the grant of the proposed licence and consents to a determination in the terms sought. The Tribunal has previously accepted the difficulties experienced by the KLC in obtaining the signatures of the native title party to a State Deed as a basis for a consent determination (Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd, NNTT WF06/1, [2006] NNTTA 141 (24 October 2006), Daniel O’Dea) and I adopt the relevant findings in that matter, notably paragraph 12.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E04/1417 to Bernfried Gunter Franz Wasse, Paul Winston Askins and James Ian Stewart may be done.

Daniel O’Dea
Member
9 June 2008