David Stock and Others on behalf of the Nyiyaparli People/Glenn Douglas Archer/State of Western Australia
[2013] NNTTA 11
•4 February 2013
NATIONAL NATIVE TITLE TRIBUNAL
David Stock and Others on behalf of the Nyiyaparli People/Glenn Douglas Archer/State of Western Australia, [2013] NNTTA 11 (4 February 2013)
Application No: WF2013/0001
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
David Stock and Others on behalf of the Nyiyaparli People (WC05/6)
(Applicant/native title party)
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Glenn Douglas Archer (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 4 February 2013
Catchwords: Native title - future act - application for determination for the grant of mining lease - 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 Act1993 (Cth), ss. 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
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, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) 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
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: n/a
Representative for the Ms Katherine Holloman
native title party: Yamatji Marlpa Aboriginal Corporation
Representative for the Mr Glenn Douglas Archer
grantee party:
Representatives for the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 21 February 2001, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of mining lease 46/249 (‘the proposed tenement’) under the Mining Act 1978 (WA) to Zdenko Soklich.
The proposed tenement comprises an area of 6.51 hectares located approximately 65 kilometres south of Nullagine, within the Shire of East Pilbara. It is 100 per cent overlapped by the registered claim of the Nyiyaparli People (WC05/6 – registered from 29 November 2005).
The native title party with respect to this proceeding is David Stock and Others on behalf of the Nyiyaparli People.
On 20 May 2005, the original applicant for the proposed tenement transferred his interest in the proposed tenement to Pamela Ann Soklich.
On 25 August 2006, Pamela Ann Soklich transferred her interest in the proposed tenement to Glenn Douglas Archer (‘the grantee party’). The grantee party is now the current holder of the proposed tenement.
On 16 January 2013, 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 determination under s 38 of the Act in relation to the proposed tenement and requested that the future act determination be made by consent.
On 23 January 2013 the native title party lodged with the Tribunal an amended application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed tenement and requested that the future act determination be made by consent ('the application').
Appended to the application is a minute of consent determination in the following terms executed by Katherine Anne Holloman on behalf of the native title party. The minute was later executed by Jeffrey O’Halloran, a Senior Adviser of the State Solicitor’s Office, on behalf of the Government party and by Glenn Douglas Archer, 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 Act1993.
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 Act1993.
3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under s. 38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease M46/249 may be done.’
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. Yamatji Marlpa Aboriginal Corporation (‘YMAC’) is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. The Tribunal will take submissions from 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).
Paragraphs 5 to 8 of the affidavit of Ms Katherine Anne Holloman, Lawyer at YMAC, affirmed on 23 January 2013, explain why a consent determination is sought:
5.On 11 July 2012, the Nyiyaparli People passed a resolution by consensus to authorise the making of the Mining Agreement between Glenn Douglas Archer and Pamela Ann Soklich and the Nyiyaparli People for M47/514 and M46/249 (‘Ancillary Agreement’):
(a) In accordance with the Decision-Making Process of the Nyiyaparli People used to authorise future act agreements, the Nyiyaparli People:
i.Authorise and direct the Applicant to sign the Mining Agreement between Glenn Archer and Pamela Ann Soklich and the Nyiyaparli People for M47/514 and M46/249
Moved:Susie Yuline
Seconded:Bruce Bung Snr
Passed:By Consensus
6. The Ancillary Agreement was executed by all persons comprising the Registered Native Title Claimant for the Nyiyaparli People and commenced on 31 October 2012.
7.The Nyiyaparli People consented to the grant of mining lease M46/249 in the Ancillary Agreement.
8.It has not been practical for the Registered Native Title Claimants to sign a Deed for Grant of Mining Tenement (State Deed) due to logistical difficulties and the Nyiyaparli People support the grant by way of consent determination.
It is clear from Ms Holloman’s affidavit that the native title party wish to proceed with a consent determination. The Tribunal is entitled to accept the evidence of the 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.
The YMAC has applied for a consent determination in order to fulfil their instructions from the native title party, as the YMAC has stated that logistical difficulties have prevented signatures of persons comprising the native title party being obtained on a State Deed. The Government party will be unable to grant the proposed tenement until a State Deed is signed by all relevant signatories, or a determination pursuant to section 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed tenement) may be done.
The Inquiry
On the basis of the information contained in the application, Ms Holloman’s affidavit, the executed minute, and with no objection from any 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 logistical difficulties in obtaining the signatures of all persons comprising the native title party applicant on the basis of an affidavit from its legal representative (see 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).
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, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed tenement and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease 46/249 to Glenn Douglas Archer, may be done.
Helen Shurven
Member
4 February 2013
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