Eric Robert Brown/Western Australia/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf Wagyl Kaip - [2007] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Eric Robert Brown/Western Australia/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf Wagyl Kaip, [2007] NNTTA 7 (17 January 2007)

Application No: WF06/85

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

Eric Robert Brown (Applicant/grantee party)

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The State of Western Australia (Government party)

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Allan Bolton and Others on behalf of Southern Noongar (WC96/109) (Southern Noongar native title party)

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Alan Bolton and Others on behalf Wagyl Kaip (WC98/70) (Wagyl Kaip native title party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 17 January 2007

Catchwords: Native title – future act – application for determination for the grant of exploration licence –named applicants not signed agreements – Standard Heritage Protection Agreement entered into – native title parties as a whole consent to the determination – determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109, 203

Cases:Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date: 15 January 2007

Counsel for the Mr Ettienne van Tonder

native title party: South West Aboriginal Land and Sea Council

Representative of the

grantee party: Mr David Crook, Pioneer Nickel 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

Background

On 15 April 1998, 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 E74/253 (‘proposed licence’) under the Mining Act 1978 (WA) to Eric Robert Brown (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.
The proposed licence comprises an area of some 31.49 square kilometres located 6 kilometres westerly of Ravensthorpe in the Shire of Ravensthorpe and is 100% overlapped by both the registered claims of the Southern Noongar (WC96/109, registered from 18 November 1996) and Wagyl Kaip (WC98/70, registered from 29 September 1998).
The native title parties with respect to these proceedings are as follows:
· Aden Eades, Allan Bolton, Dallas Coyne, Glen Colbung, name withheld for cultural reasons and Rita Dempster on behalf of the Southern Noongar Families (WC96/109) (‘the Southern Noongar native title party’)
· Alan Bolton, Glen Colbung, Hazel Brown, Ken Colbung, Kevin Miller, Mark Smith, Mingli Wunjurri-Nungala, Rita Dempster, Rose Pickett and Sam Miller on behalf of Wagyl Kaip (WC98/70) (‘the Wagyl Kaip native title party’)
On 19 December 2006, 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 of the Act.
The grantee party has requested that the future act determination be made by consent on the basis that ancillary agreements had been reached with the native title parties but that agreements of the kind mentioned in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deeds) have not been executed by all the persons named as part of the Southern Noongar and Wagyl Kaip native title applicants. Attached to the application is the following minute of consent determination executed by Eric Robert Brown and David Crook for the grantee party and Mr Simon Blackshield for the native title parties. It was subsequently executed by Mr Jeff O'Halloran on behalf of the Government party prior to the hearing:

‘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 74/253 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 their consent. South West Aboriginal Land and Sea Council ('SWALSC') 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

On 15 January 2007, a hearing was conducted at which all parties were represented and confirmed their consent in the terms sought. Mr David Crook of Pioneer Nickel Pty Ltd appeared for the grantee party on the basis that on grant the grantee party has agreed to transfer the licence to Pioneer Nickel Pty Ltd. Mr van Tonder of SWALSC, counsel for the native title parties, advised that he was satisfied he had been properly instructed by the native title parties to consent to the determination. This was on the basis that a Working Party established by the native title claim groups had agreed to the grant of the proposed licence upon Pioneer Nickel signing the SWALSC Standard Heritage Protection Agreement and in the event that it was not possible to obtain the signatures of all the persons named as part of the native title parties to a State Deed to consent to a future act determination. Mr van Tonder advised that it would not be possible to obtain the signatures of all persons named as part of the respective native title parties. I note that difficulties in obtaining signatures for these native title parties was used by Member O’Dea as the basis for making a consent determination in Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea.
As the recognised representative body under the Act, SWALSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representative on whether the appropriate consent has been given by the native title party.

Determination