Doris Ryder and Others on behalf of Lamboo/Western Australia/ Si Luh Putu Rakawati; Rimbal Pty Ltd
[2008] NNTTA 37
•31 March 2008
NATIONAL NATIVE TITLE TRIBUNAL
Doris Ryder and Others on behalf of Lamboo/Western Australia/ Si Luh Putu Rakawati; Rimbal Pty Ltd, [2008] NNTTA 37 (31 March 2008)
Application No: WF08/10
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/native title party)
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The State of Western Australia (Government party)
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Si Luh Putu Rakawati and Rimbal Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 31 March 2008
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 – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109, 151(2)
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
Doris Ryder and Others on behalf of Lamboo/ Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Bundarra Holdings Pty Ltd, NNTT WF07/1, [2007] NNTTA 19 (9 March 2007), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: Not applicable
Solicitor for the
native title party: Mr Robert Houston, Kimberley Land Council
Representative of the
grantee party: Mr George Lee, Advanced Tenement Services
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 21 May 1997, 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 E80/2213 (‘the proposed licence’) under the Mining Act 1978 (WA) to Si Luh Putu Rakawati and Rimbal Pty Ltd (‘the grantee party’). Included in the notice was a statement that it considered the grant attracted the expedited procedure (that is, the act is one which can be done without the normal negotiations required by s 31 of the NTA).
The proposed licence comprises an area of some 19.41 square kilometres located 110 kilometres south-westerly of Halls Creek in the Shire of Halls Creek. It is overlapped entirely by the native title claim of the Lamboo People (WC99/20, registered from 17 September 1999).
The native title party with respect to these proceedings is Doris Ryder, George Wallaby, Gerry Woodhouse, Jack Ryder, Kimberley Baird, Lennie Manson, Mark Gordon, Paddy Pidoon, Patticake Imbalang, Stan Brumby, Vera Cox, Violet Campbell and Winnie Yeeda on behalf of Lamboo. The Lamboo People are accorded procedural rights in accordance with Part 2, Division 3 Subdivision 3 of the Act by way of their pre-combination native title claim, Dulan (WC97/61 – registered from 21 July 1997 to 21 September 1999) which also entirely overlapped the proposed licence.
On 21 July 1997 Doris Ryder and Jack Ryder on behalf of the Dulan People lodged an objection to the expedited procedure statement in relation to the proposed licence (WO97/213). On 27 January 1998, following an Inquiry, the Tribunal determined that the expedited procedure should not apply and the proposed licence became subject to the right to negotiate. On 11 December 2007 the Government party referred negotiations in relation to the proposed licence for Tribunal mediation assistance pursuant to s 31(3) of the Act and I was appointed as the Member to conduct that mediation. Mediation was finalised on 6 March 2008 on the basis that agreement had been reached between the negotiation parties.
On 5 March 2008, 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 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 had been reached between the grantee party and the native title party but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) had not been executed by the persons comprising the native title applicant as a result of logistical difficulties. Notwithstanding my prior appointment as Member for the associated s 31(3) mediation parties have agreed to my appointment as Member for the s 35 Inquiry on the basis that a consent determination is sought.
A minute of a consent determination in the following terms has subsequently been forwarded to the Tribunal and is executed by Mr Nolan Hunter, Deputy Director of the KLC for and on behalf of the native title party, Mr George Lee on behalf of the grantee party and Mr Trevor Creewel 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 80/2213 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 party. 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
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 Trish Terry, affirmed 4 March 2008. The relevant paragraphs of Ms Terry’s deposition are set out below:
‘1. I am employed as a Native title Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’) and work in the Kununurra Office.
2. On or about 11 August 206, the Lamboo 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. The KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee Party to enter into a Native Title and Heritage Protection Agreement (‘HPA’).
4. On or about December 2007, the parties reached agreement that the future act may be done, subject to the terms and conditions of the HPA.
5. I believe that entry into a Consent Determination is consistent with the instructions of the claimants.’
On the basis of the application and the affidavit evidence I am satisfied that it is appropriate to make a determination on the papers pursuant to s 151(2) of the Act (ie: without recourse to a hearing) in this matter. No party has contested this approach.
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) (‘Vageta’). In Doris Ryder and Others on behalf of Lamboo/ Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Bundarra Holdings Pty Ltd, NNTT WF07/1, [2007] NNTTA 19 (9 March 2007), Hon C J Sumner (‘Bundarra’), Deputy President Sumner specifically considered an application for a consent determination pursuant to s 38 in relation to the Lamboo People, made on the basis of logistical difficulties which were specified to include claimants living in remote areas, resources within the KLC and law business. I am prepared to accept that the same logistical difficulties would also apply in the circumstances of this particular matter. In Bundarra Deputy President Sumner adopted my findings from paragraph [13] of Vageta 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 and I too adopt those findings for the purposes of this determination. 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 party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E80/2213 to Si Luh Putu Rakawati and Rimbal Pty Ltd, may be done.
Daniel O’Dea
Member
31 March 2008
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