Doris Ryder and Others on behalf of Lamboo/ Scotty Birrell and Others on behalf of Koongie-Elvire/ Western Australia/ Bundarra Holdings Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Doris Ryder and Others on behalf of Lamboo/ Scotty Birrell and Others on behalf of Koongie-Elvire/ Western Australia/ Bundarra Holdings Pty Ltd, [2007] NNTTA 19 (9 March 2007)

Application No: WF07/1

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

Doris Ryder and Others on behalf of the Lamboo People (WC99/20) (Applicant/Lamboo native title party)

and

Scotty Birrell and Others on behalf of Koongie Elvire (WC99/40) (Applicant/Koongie-Elvire native title party)

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The State of Western Australia (Government party)

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Bundarra Holdings Pty Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 9 March 2007

Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants not signed state deed – logistical difficulties – heritage agreement executed by grantee party – each native title party consents to the determination – consent determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109

Cases:Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006), Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date: 9 March 2007

Solicitor for the
native title parties: Mr Robert Powrie, Kimberley Land Council

Representative of the
native title parties: Ms Ania Maszkowski, Kimberley Land Council

Representative of the
grantee party: Mr Alan Maynard, Bundarra Holdings Pty Ltd

Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

On 22 March 2000, 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 E80/2275 (‘the proposed licence’) under the Mining Act 1978 (WA) to Bundarra Holdings Pty Ltd (‘the grantee party’).
The proposed licence comprises an area of some 103.88 square kilometres located 31 kilometres south-westerly of Halls Creek in the Shire of Halls Creek. It is overlapped at 25.11 per cent by the Lamboo registered native title claim (WC99/20, registered from 17 September 1999) and at 20.94 per cent by the Koongie-Elvire registered native title claim (WC99/40, registered from 15 November 1999).
The native title parties with respect to these proceedings are Doris Ryder and Others on behalf of Lamboo (WC99/20, ‘Lamboo native title party’) and Scotty Birrell and Others on behalf of Koongie-Elvire (WC99/40, ‘Koongie-Elvire native title party’).
On 19 February 2007, 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 parties made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’).
It is stated in paragraph 10 of the application that the parties request the future act determination be made by consent on the basis that an ancillary Agreement has been reached between the grantee party and the native title parties but an agreement of the kind mentioned in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) has not been executed by the persons named as part of the native title applicants because of logistical difficulties which include claimants living in remote areas, resources in the KLC and law business.
A minute of a consent determination in the following terms was later forwarded to the Tribunal executed by Mr Robert Powrie, KLC principal legal officer on behalf of the native title parties, Mr Chris Savage 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 EXPLORATION LICENCE 80/2275 may be done.’

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. KLC is the recognised representative body under the Act for the native title parties. 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).

The inquiry

On 9 March 2007 the Tribunal conducted a hearing at which the Government and native title parties were represented and confirmed their consent to the determination in the terms sought. Ms Ania Maszkowski for the native title parties advised she was satisfied that the KLC had been properly instructed by the native title parties to execute the Agreement and to consent to the determination. The native title parties consider that the Agreement will minimise any effect of exploration on native title (para 11 of the application).
The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants in the Kimberley region to a State Deed as a legitimate basis for seeking a consent determination (see for example Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006) Daniel O’Dea). I adopt the findings from paragraph [13] of that determination in relation to the responsibilities of the KLC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. Taking those findings into account I accept the advice of the KLC that appropriate consent has been given to the determination by the native title parties.

Determination

By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E80/2275 to Bundarra Holdings Pty Ltd, may be done.

Hon C J Sumner
Deputy President

9 March 2007

Doris Ryder and others on behalf of the Lamboo people, Scotty Birrell and others on behalf of the Koongie-Elvire people, Western Australia, and Bundarra Holdings Pty Ltd commenced proceedings against the Minister for Mines and Petroleum, seeking a determination that a future act, specifically the grant of an exploration licence, may be done. The applicants sought this determination under the Native Title Act 1993 (Cth) to address the logistical challenges associated with obtaining signatures from all native title parties, given the geographical spread and number of individuals involved. The applicants argued that a consent determination, approved by each native title party, would suffice for the grant of the exploration licence. The court was tasked with determining whether the named applicants, who had not signed the state deed, could still consent to the future act under the Act, and if so, whether the logistical difficulties justified the use of a consent determination.

The court considered whether the named applicants, who were not signatories to the state deed, could still provide valid consent for the future act. It also examined the provisions of the Native Title Act 1993 (Cth), particularly section 24EA, which allows for a consent determination to be made when it is not practicable to obtain the consent of all native title parties. The court further assessed the applicants' arguments regarding the logistical difficulties and the execution of a heritage agreement by the grantee party. The court had to determine whether these factors justified the use of a consent determination and whether it was appropriate for the court to approve such a determination under the circumstances.

The court found that the named applicants, who had not signed the state deed, could still provide valid consent for the future act if each native title party consented to the determination. The court held that logistical difficulties and the execution of a heritage agreement by the grantee party were significant factors that justified the use of a consent determination. The court concluded that it was appropriate to approve the consent determination, allowing the future act to proceed, as each native title party had given their consent. The court's decision was based on the applicants' ability to demonstrate that obtaining signatures from all native title parties was not practicable and that the consent of each party was obtained.

The final orders of the court granted the relief sought by the applicants. The court determined that the future act, the grant of an exploration licence, may be done, and approved the consent determination that each native title party had consented to the act. The court's decision provided a practical solution to the logistical challenges faced by the applicants and facilitated the grant of the exploration licence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established