Bunuba People/Western Australia/Marten Hendrick Ynema, William Robert Richmond
[2012] NNTTA 8
•6 February 2012
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba People/Western Australia/Marten Hendrick Ynema, William Robert Richmond, [2012] NNTTA 8 (6 February 2012)
Application No: WF11/15
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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The State of Western Australia (Government party)
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Marten Hendrick Ynema, William Robert Richmond (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 6 February 2012
Catchwords: Native title - future act - application for determination for the grant of exploration licence - named applicants not signed state deed - logistical difficulties - native title party as a whole consents 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:Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70
Foster v Copper Strike Ltd (2006) 200 FLR 182; [2006] NNTTA 61
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes [2003] NNTTA 117 (18 November 2003) Hon C J Sumner, Deputy President
Gooniyandi Combined 2/Western Australia/Fox Resources Ltd [2008] NNTTA 26 (27 February 2008) Daniel O’Dea, Member
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50
Hearing date: Determined on the papers
Representative of the Mr Reece O’Brien, Kimberley Land Council
native title party:
Representative of the Mr Marten Ynema
grantee party:
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
Background
On 14 January 1998, 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 prospecting licence P04/187 (the proposed licence) under the Mining Act 1978 (WA) to Marten Hendrick Ynema and William Robert Richmond (the grantee party).
The proposed licence comprises an area of 56.01 hectares and is located 195 kilometres south east of Derby in the Shire of Derby-West Kimberley. Tengraph Quick Appraisal documentation indicates that the proposed licence is 100 per cent within the Bunuba registered claim (WC99/19 – registered from 20 August 1999). However, geospatial analysis prepared by the Tribunal shows that the proposed licence is 99.95 per cent within the Bunuba claim. A closer examination of the Tengraph data appears to confirm the Tribunal’s analysis, as the Quick Appraisal lists the encroachment area with the Bunuba claim as 55.99 ha. No other registered claims overlap the proposed licence.
The registered native title claimants on behalf of the Bunuba People are Bradley Williams, Danny Marr, Isaac Hale, Johnny Marr and Rita Dann (the native title party). Other named applicants are omitted for cultural reasons.
On 5 December 2011, being a date more than six months after the s 29 notice was given, the Kimberley Land Council (KLC), on behalf of the native title party, made an application pursuant to s 35 of the Act for a determination under s 38 of the Act. At paragraph 10 of the application, the native title party requested that the future act determination be made by consent on the basis that an ancillary agreement has been reached with the grantee party, but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (that is, the State Deed) has not been executed by all the persons named as part of the native title applicant owing to logistical difficulties.
A minute of consent determination in the following terms accompanied the application and was executed in counterpart by Mr Nolan Hunter, Chief Executive Officer of the KLC, on behalf of the native title party, Mr Ynema on behalf of the grantee party and Mr Jeff O’Halloran of the State Solicitor’s Office 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 Prospecting Licence 04/187 may be done.’
The basis on which KLC believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavit of Mr Reece Donald O’Brien, affirmed on 31 January 2012. The relevant paragraphs of Mr O’Brien’s affidavit are set out below:
‘2.I have perused the relevant file. On or about 29 August 2006, the Bunuba 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.On or about 23 August 2011, the Grantee Party and the Native Title Party reached agreement that certain future acts may be done (including the grant of the Grantee Party’s application for tenement (P04/187), subject to the terms and conditions of a Native Title and Heritage Protection Agreement (‘HPA’).
4.The HPA includes the Native Title Party’s consent to the grant of the Grantee Party’s application for tenement P04/187.
5.I believe that entry into a Consent Determination is consistent with the instructions of the Native Title Party.’
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 KLC is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. The Tribunal can hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50).
The Inquiry
On the basis of the information contained in the application, supporting affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
Findings
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 (Gooniyandi Combined 2/Western Australia/Fox Resources Ltd [2008] NNTTA 26). I am prepared to accept that the same logistical difficulties also apply in the circumstances of this particular matter.
Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes [2003] NNTTA 117 (18 November 2003) Hon C J Sumner, Deputy President; Foster v Copper Strike Ltd (2006) 200 FLR 182; [2006] NNTTA 61; and Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70).
I am satisfied that, based on the evidence provided to the Tribunal in this matter the native title party, as a whole, has agreed to the grant of the proposed licence and consents to a determination in the terms sought.
Taking those findings into account, I accept the evidence of the KLC that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence P04/187 to Marten Hendrick Ynema and William Robert Richmond, may be done.
Helen Shurven
Member
6 February 2012
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