Evelyn Gilla and Others on behalf of the Yugunga-Nya People; Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/John Wilson/Western Australia
[2006] NNTTA 4
•30 January 2006
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla and Others on behalf of the Yugunga-Nya People; Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/John Wilson/Western Australia, [2006] NNTTA 4 (30 January 2006)
Application No: WF05/19
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Evelyn Gilla and Others on behalf of the Yugunga-Nya People (WC99/46)
and
Kevin Walley and Others on behalf of the Ngoonooru Wadjari People (WC00/12) (Applicants/ native title parties)
- and -
John Wilson (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 30 January 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licence – inability of native title parties to execute ancillary agreement or State Deed – deceased applicant – each native title party as a whole consent to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 30 January 2006
Counsel for the
native title parties: Mr Matthew O’Sullivan, Yamatji Land and Sea Council
Representative of the
native title parties: Mr Nathan Cammerman, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Chris Clegg, Statewide Tenement and Advisory Services Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 30 June 1999, 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 E51/844 (‘proposed licence’) under the Mining Act 1978 (WA) to John Wilson (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure. The proposed licence comprises an area of some 104.84 square kilometres, 26 kilometres north-easterly of Meekatharra in the Shire of Meekatharra.
On 14 October 1999 an objection to the inclusion of the expedited procedure statement (designated WO99/259) was lodged on behalf of the Ngoonooru Wadjarri native title party with the Tribunal. On 3 March 2000 I made consent determinations in relation to this objection application that the expedited procedure was not attracted. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied from this date.
On 3 March 2005, Tribunal mediation assistance pursuant to s 31(3) the Act was sought by the Government party. Mediation was discontinued on 16 September 2005 on the basis that the parties had reached agreement.
The native title parties with respect to these proceedings, and the extent to which their registered claims overlap the proposed licence, are as follows:
· Evelyn Gilla, William Shay, deceased person - name withheld for cultural reasons and Rex Shay on behalf of the Yugunga-Nya People (WC99/29) (‘the Yugunga-Nya native title party’) - 73.95% overlap;
· Kevin Walley, Robert Ginger, Tony Moncrieff, William Baumgarten, Adeline Gilla, Leslie Baumgarten, Lily Walley, Madeline Walley, Marjorie Mourambie, Rose Budd (WC00/12) (‘the Ngoonooru Wadjari native title party) – 26.05% overlap.
On 21 December 2004 an application was lodged to combine the Ngoonooru Wadjari native title party’s claim with the Wadjarri Elders claim (WC01/3). This combined application was accepted for entry onto the Register of Native Title Claims on 5 December 2005 and is designated Wajarri Yamatji (WC04/10). The right to negotiate provisions of the Act continue to apply to the persons who comprise the registered native title claimant and native title party for the Wadjarri Elders Claim
On 16 December 2005, being a date more than six months after the s 29 notice was given the Yamatji Land and Sea Council (the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation) (‘Yamatji’) made an application pursuant to s 35 of the Act for a future act determination under s 38 on behalf of both of the native title parties.
The native title parties requested that the future act determination be made by consent and appended to the s 35 determination application a minute of a consent determination in the following terms, executed by Mr Jeremy Ryan (Yamatji solicitor) on behalf of both native title parties and Mr Chris Clegg (Statewide Tenement and Advisory Services Pty Ltd) on behalf of the grantee party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 51/844 may be done.’
A further copy of the consent minute also executed by Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party was lodged with the Tribunal on 27 January 2006.
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 is the designated representative body under the Act for both native title parties and has represented them in these proceedings. 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).
Paragraph 10 of the s 35 application advises the native title and grantee parties have entered into a heritage agreement and that ‘the grantee party agrees to abide by the provisions of that agreement’. On 24 January 2005, an amendment to Paragraph 10 of the application was submitted by Yamatji clarifying why a consent determination was being sought. In this amendment it is stated that:
‘… The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed in a timely manner.
The Ngoonooru Wadjari claim has now been combined with the Wajarri Elders claim, the total area of the claim being in excess of 100,000 square kilometres. The Ngoonooru Wadjari applicants will therefore not be gathered together again for the purposes of a meeting. As the Ngoonooru Wadjari Applicants do not all live centrally, being located as far apart as Meekatharra, Port Hedland, Perth and Esperance, the time and costs involved in obtaining the signatures of all the Applicants is significant, and would be prohibitive if undertaken for every future act determination.
The Native Title Party consents to the proposed act being done, that is the grant of licences E51/844 pursuant to the terms of an agreement between the Native Title Party and the Grantee dated 8th December 2005.
The YLSC is satisfied that the Native Title Party collectively consents to the determination, as evidenced by the resolution of the working group meeting of 31st August 2005.
The parties reached agreement about the act at a Yugunga-Nya working group meeting held in Meekatharra on 4th May 2005. The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed in a timely manner.
The claim covers an area of some 30,300 square kilometres. The Applicants do not all live centrally, being located as far apart as Leonora, Geraldton and Meekatharra. In addition one of the applicants is recently deceased. The time and costs involved in obtaining the signatures of all the Applicants is significant, and would be prohibitive if undertaken for every future act determination.
The Native Title Party consents to the proposed act being done, that is the grant of licences E51/884 pursuant to the terms of an agreement between the Native Title Party and the Grantee dated 8th December 2005.
The YLSC is satisfied that the Native Title Party collectively consents to the determination, as evidenced by the resolution of the working group meeting of 4th May 2005.’
Because neither native title party has signed the heritage agreement or State Deed for the reasons specified above and because one of the named persons who jointly comprise the Yugunga-Nya applicant and registered native title claimant is deceased, this matter cannot be concluded by way of s 31 agreements. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
The inquiry
On 30 January 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr Matthew O’Sullivan, counsel for the native title parties, advised he was satisfied that he and Yamatji had been properly instructed by the native title parties to consent to the determination. He also advised that from enquiries he had made he was satisfied that one of the persons named as part of the Yugunga-Nya native title party was deceased. The Tribunal was also informed that the heritage agreement signed by the grantee party is based on the Regional Standard Heritage Agreement for exploration endorsed by Yamatji, the Government party and industry with some modifications.
As the designated representative body under the Act, Yamatji 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 legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E51/844 to John Wilson, may be done.
Hon C J Sumner
Deputy President
30 January 2006
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