Charlie Lapthorne and Ors on behalf of the Thudgari People/Western Australia/Eastern Goldfields Exploration Pty Ltd

[2009] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Charlie Lapthorne and Ors on behalf of the Thudgari People/Western Australia/Eastern Goldfields Exploration Pty Ltd [2009] NNTTA 39 (30 April 2009)

Application No:        WF09/5

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Charlie Lapthorne and Ors on behalf of the Thudgari People (WC97/95) (native title party)

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The State of Western Australia (Government party)

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Eastern Goldfields Exploration Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:                   Daniel O’Dea, Member

Place:  Perth
Date:  30 April 2009

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – logistical difficulties preclude execution of ancillary agreement and State Deed – native title party consents to the determination - consent determination that the act may be done.

Legislation:  Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151(2)

Mining Act 1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member

Hearing date:   Determined on the papers

Representative of the

native title party:                 Ms Tessa Herrmann, Yamatji Marlpa Aboriginal Corporation

Representative of the           Mr Rod Wahl, State Solicitor’s Office
Government party:              Mr Dave Thomson, Department of Mines and Petroleum

Representative of the
grantee party:  Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR FUTURE ACT DETERMINATION

1. On 4 June 2003, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act namely the grant of exploration licence E08/1386 (‘the proposed licence’) under the Mining Act1978 (WA) to Eastern Goldfields Exploration Pty Ltd (‘the grantee party’).

2. The proposed  licence comprises an area of 219.74 square kilometres and is situated 170 kilometres north easterly of Gascoyne Junction in the Shire of Ashburton, and is entirely overlapped by the registered native title claim of the Thudgari People (WC97/95) – registered from 18 November 1997.

3. Between 20 June 2008 and 8 December 2008 the matter was subject to s 31 mediation facilitated by the Tribunal. On or about 11 November 2008, an agreement was reached between Eastern Goldfields Exploration Pty Ltd and the Thudgari people in relation to its grant.

4. On 27 February 2009, being a date more than six months after the s 29 notice was given, 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. Appended to the application was a minute of a consent determination in the following terms, executed by Tessa Herrmann, Claim Lawyer, Yamatji Marlpa Aboriginal Corporation (‘YMAC’) for and on behalf of the native title 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 08/1386 may be done.’

The minute of consent determination was subsequently executed by Matthew Clohessy, on behalf of the grantee party and Rod Wahl, State Solicitor’s Office, on behalf of the Government party.

1. Appended to the application is an affidavit of Tessa Jeanne Herrmann in support of the native title party’s application for a future act determination, affirmed 27 February 2009.  Paragraph 10 of the application also includes the statement below:

   ‘The native title party consents to the proposed act being done, that is the grant of Exploration Licence 08/1386 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licence 08/1386 can therefore be granted in pursuance to the consent determination.’

It is further said that logistical difficulties preclude the execution of the ancillary agreement and State Deed (being an agreement of the kind contemplated by s 31(1)(b) of the Act).

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/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President).

The Inquiry Findings

1. All parties have agreed that the determination could be made on the papers, amongst which included an affidavit of the native title party’s representative attesting to its authority to bring a consent determination application on behalf of the native title with respect to the proposed licence.  I am satisfied that I can adequately determine the matter in this manner (s 151(2)). The YMAC has provided the Tribunal with the affidavit of Tessa Jeanne Herrmann, sworn on 27 February 2009. The affidavit refers to the proposed licence and sets out the basis on which the YMAC believes it is authorised to bring a consent determination application on behalf of the native title party.  Ms Herrmann attests:

   ‘I Tessa Jeanne Herrmann, Solicitor, of c/-171 Marine Terrace, Geraldton in the State of Western Australia, solemnly and sincerely affirm as follows:

   1.   I am a lawyer employed as a Legal Officer by the Yamatji Marlpa Aboriginal Corporation (“YMAC”), the representative Aboriginal/Torres Strait Islander body (as defined in the Native Title Act 1993 (Cth) for the Murchison and Gascoyne regions of Western Australia.

   2.   I am authorised to affirm this affidavit in support of the future act determination application by the Native Title Party for the grant of exploration licence E08/1386.

   3.   I am the claim lawyer for the Thudgari claim and, with appropriate assistance from senior lawyers, have the day-to-day care and conduct of the Thudgari native title claim, including negotiations that take place with proponents who apply for mining tenements subject to the Thudgari claim.

   Thudgari Working Group meeting of 24 November 2008

   4.   On 24 November 2008, I attended a meeting of the Thudgari Working Group at Carnarvon Yacht Club. The Thudgari Working Group are elected by the Thudgari claim group to deal with day-to-day matters affecting the Thudgari native title claim, including future acts such as exploration tenement applications.

   5.   At the 24 November 2008 meeting, I discussed tenement applications E08/1386 with the Thudgari Working Group Members present. I explained the background to the negotiations over the tenement application, and the terms of the agreement that had been negotiated with the Grantee Party and was now on offer to the Native Title Party.

   6.   As recorded by the minutes of the 24 November 2008 Working Group Meeting, the Thudgari Working Group then passed, in my presence, the following resolution:

   “Resolution 20081124.4:

   The Thudgari Working Group instruct YLSC to enter into the Heritage Agreement over tenement application E08/1386  in the name of Eastern Goldfields Exploration on behalf of the Thudgari claim group as discussed at the Working Group meeting on 24 November 2008.

   Moved by Merle Dann, seconded by Herbert Eagles, all in favour, resolution passed.”

   7.   At the 24 November 2008 Thudgari Working Group meeting, I discussed with the Working Group members present the difference between the consent determination process and the signing of State Deeds. I explained why these processes are required to finalise tenement applications in the Right to Negotiate, and advised the Working Group of the requirements of each process.

   8.   As recorded by the minutes of the 24 November 2008 Working Group meeting, the Thudgari Working Group passed, in my presence, the following resolution:

   “Resolution 20081124.5:

   The Thudgari Working group instruct YLSC that, for the purposes of tenement application E08/1386 in the name of Eastern Goldfields Exploration Pty Ltd, subject to the Heritage Agreement with Eastern Goldfields Exploration being properly executed, the Thudgari claim group consent to a determination by the NNTT to the effect that the tenement can be granted

   Moved by Merle Dann, seconded by Peter Salmon, all in favour, resolution passed.”

   9.   I am informed by our files and by Future Acts Officer for YMAC Ms Hayley Meehan that a heritage agreement over tenement application E08/1386 has since been executed by the Grantee Party and YMAC as agent for the Native Title Party.

   10. I am satisfied that the Native Title Party consents to the future act determination, as evidenced by the resolutions of the Thudgari Working group passed on 24 November 2008 and set out in paragraphs 6 and 8 above.

   Logistical difficulties with obtaining State Deeds

   11. I am informed by my knowledge of the Thudgari claim and verily believe that there are likely to be logistical difficulties in obtaining the signatures of the Thudgari applicants to State Deeds.

   12. I am informed by the Thudgari applicant Mr Charlie Lapthorne and verily believe that Mr Lapthorne’s principal place of residence is Ullawarra station, which is located several hours drive inland from Carnarvon.

   13. I am informed by YMAC’s database of client contact details that YMAC does not have a current address or telephone number for either Mr Warren Stanley Ryan or Ms Alice Moncrieff, who are both Thudgari applicants.

   14. For the reasons cited in paragraphs 12 and 13 above, I anticipate that YMAC would experience logistical difficulties in securing the signatures of all of the Thudgari applicants to State Deeds to enable tenement application E08/1386 to be granted.’

2. The Tribunal is entitled to accept the evidence of YMAC’s legal representative on whether appropriate consent has been given by the native title party and there is nothing in the papers before me to suggest the contrary. While the Tribunal has not previously been asked to consider the making of a consent determination under s 38 of the Act in relation to the Thudgari People, the Tribunal has previously accepted the difficulties in obtaining signatures of named applicants for other native title claims in the region as a legitimate basis for seeking a consent determination (for example, Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member and Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member). I adopt the findings in those matters in relation to these proceedings.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E08/1386 to Eastern Goldfields Exploration Pty Ltd, may be done.

Daniel O’Dea
Member

30 April 2009