Dja Dja Wurrung People/Victoria/Douglass Cahill and Robert Palmer

[2008] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Dja Dja Wurrung People/Victoria/Douglass Cahill and Robert Palmer, [2008] NNTTA 75 (17 June 2008)

Application No: VF08/2

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

Dja Dja Wurrung People (VC99/9 & VC00/1) (Applicant/native title party)

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The State of Victoria (Government party)

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Douglass Cahill and Robert Palmer (grantee party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O’Dea, Member

Place:  Perth
Date:  17 June 2008

Catchwords:  Native title – future act – application for determination for the grant of mining licences – native title parties consent to the determination – consent determination that the act may be done.

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

Mineral Resources (Sustainable Development) Act 1990 (Vic)

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

Hearing date:  10 June 2008

Representative of the          
native title parties:              Ms Helen Grutzner, Native Title Services Victoria

Representative of the          
Government party:             Ms Mary Scalzo, Victorian Government Solicitor’s Office

Representative of the          
grantee party:  Mr Douglas Cahill, Cahill’s Barristers and Solicitors

REASONS FOR FUTURE ACT DETERMINATION

1. On 11 April 2007 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 mining licence applications MIN5370 and MIN5371 (referred to as ‘the proposed licences’) under the Mineral Resources (Sustainable Development) Act 1990 (Vic) to Douglass Cahill and Robert Palmer (‘the grantee party’).

2. The areas and locations of the proposed licenses are as follows:

• MIN5370 – 57.240 hectares, approximately 100 metres South West of Moliagul in the Shire of Central Goldfields.

• MIN5371 – 1 hectare, approximately 1 kilometre South West of Moliagul in the Shire of Central Goldfields.

1. MIN5370 is 79.33 per cent covered by the registered claim of the Dja Dja Wrung/Whurung People (VC99/9, registered from 17 September 1999) and 20.67 per cent covered by the registered claim of the Dja Dja Wurrung Peoples (VC00/1, registered from 15 August 2000).

2. MIN5371 is situated wholly within the boundaries of MIN5370 and is 100 per cent covered by the registered claim of the Dja Dja Wrung/Whurung People (VC99/9, registered from 17 September 1999).

3. The native title party with respect to these proceedings is Dja Dja Wurrung People and Ors (VC99/9, registered from 17 September 1999 & VC00/1, registered from 15 August 2000).

4. On 20 May 2008, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’).

Inquiry

1. The Tribunal was provided with a minute of consent orders signed by Ms Helen Grutzner, a lawyer employed by Native Title Services Victoria, on behalf of the native title parties, Ms Mary Scalzo, Managing Principal Solicitor of the Victorian Government Solicitor’s Office, representing the Government party and Mr Douglass Cahill, of Cahills Barristers & Solicitors, representing the grantee party, in the following terms:

   ‘1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993 (Cth).

   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 (Cth).

   3.     The acts, namely the grant of mining licence applications 5370 and 5371 under the Mineral Resources (Sustainable Development) Act 1990 (Vic) may be done.’

2. 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.  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).

3. The reasons for seeking a consent determination are outlined in paragraph 10 of the application which states the following:

   ‘The applicant native title party and the grantee party have reached agreement on the doing of the act ie the proposed grant by the State of the MLAs, after the minimum period of six months of the State giving notice of its intention to grant the MLAs, being April 2007. The agreement was authorised by the applicant native title party in accordance with its authorised decision making processes. The applicant native title party resolved to direct the registered applicants to sign the Section 31 Deed and Project Consent Deed for the MLAs in accordance with its authorised decision making processes. However, one of the registered applicants for VC99/9 (VID6006/98) has refused and/or been persistently unavailable to execute the Section 31 Deed and Project Consent Deed for the MLAs.’

1. On 10 June 2008 I conducted a hearing into the matter attended by Ms Grutzner and Mr Cahill. Both parties confirmed they had instructions to consent to the determination application. In response to my inquiry, Ms Grutzner confirmed that the person who had not signed was increasingly difficult to track down and had absented himself from the participation in the business of the native title party in the past three years. She confirmed that this applicant had not expressly refused to sign this particular agreement. If the Tribunal is satisfied, as I am in this matter, that the persons who collectively comprise the applicant of a registered native title claim (i.e. the native title party) consent to the doing of the act or the making of an application, notwithstanding that one of their members has failed to formally express his or her agreement, then, unless there are other cogent reasons for not doing so, the Tribunal should make the determination by consent.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Mining Licences MIN5370 and MIN5371, to Douglass Cahill and Robert Palmer, may be done.

Daniel O’Dea
Member

17 June 2008