Evelyn Gilla and Others on behalf of the Yugunga-Nya People/Murchison Exploration Pty Ltd/Western Australia

[2006] NNTTA 72

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla and Others on behalf of the Yugunga-Nya People/Murchison Exploration Pty Ltd/Western Australia, [2006] NNTTA 72 (13 June 2006)

Application No:        WF06/19

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

Evelyn Gilla and Others on behalf of the Yugunga-Nya People (WC99/46) (Applicant/native title party)

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Murchison Exploration Pty Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  13 June 2006

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

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

Cases:Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006) Hon C J Sumner

Evans v Western Australia (1997) 77 FCR 193

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, NNTT WF05/19, [2006] NNTTA 4 (30 January 2006) Hon C J Sumner

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

Hearing date:  2 June 2006

Counsel for the
native title party:                 Ms Raina Savage, Yamatji Land and Sea Council

Representative of the
grantee party:  Mr Peter Del Fante, Murchison Exploration 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

1. On 20 April 2005, 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 E51/1079 ('the proposed licence') under the Mining Act 1978 (WA) to Murchison Exploration Pty Ltd (‘the grantee party’).

2. The area, location and percentage to which the proposed licence overlaps the Yugunga-Nya People's registered native title claim (WC99/46, registered from 12 June 2000) is as follows:

• E51/1079 – 61.64 square kilometres, 86 kilometres north-easterly of Meekatharra in the Shire of Meekatharra, 100% overlap

1. The native title party with respect to these proceedings is Evelyn Gilla, William Shay, deceased person – name withheld for cultural reasons and Rex Shay on behalf of the Yugunga-Nya People (WC99/46).

2. On 10 May 2006, being a date more than six months after the s 29 notice was given, the Yamatji Land and Sea Council (‘Yamatji’) made an application pursuant to s 35 of the Act for a future act determination under s 38 on behalf of the native title party.

3. The native title party requested that the future act determination be made by consent. A minute of a consent determination was later forwarded in the following terms, executed by Ms Helen Lawrence on behalf of the native title party, Mr Trevor Creewel (State Solicitor’s Office) on behalf of the Government party and Mr Peter del Fante on behalf of the grantee party:

‘CONSENT DETERMINATION UNDER SECTION 38 OF

THE NATIVE TITLE ACT 1993 (CTH)

1. The Government Party has complied with the requirements of s31(1)(a) of the Native Title Act 1993

2. The Government Party, the Grantee Party and the Native Title Parties have complied with the requirements of s31(1)(b) of the Native Title Act 1993

3. The Government Party, the Grantee Party and the Native Title Party consent to a determination under s38 of the Native Title Act 1993 that the 'act' being the grant of exploration licence E51/1079 may be done pursuant to the agreement entitled 'Murchison Exploration and Yugunga Nya People' dated 25th January 2006.’

4. 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.  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).

5. The reasons for seeking a consent determination set out in para 10 of the application are similar to those considered in 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, NNTT WF05/19, [2006] NNTTA 4 (30 January 2006), Hon C J Sumner at [10]-[11] (‘Evelyn Gilla’), namely that the time and costs in obtaining signatures of all named applicants would be prohibitive if undertaken for every future act.

6. The proposed consent determination is sought to be expressed in terms that the act may be done subject to the terms of the 'Murchison Exploration and Yugunga Nya People' Agreement dated 25 January 2006 (‘the agreement’).  The Tribunal has before it a copy of the agreement provided by Yamatji.  It is signed by the grantee party and the executive director of Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation ('YMBBMAC') for and on behalf of YMBBMAC as agent for the native title party.  The agreement is a modified version of the Regional Standard Heritage Agreement for exploration endorsed by Yamatji, the Government party and industry.

The inquiry

1. On 2 June 2006, the Tribunal conducted a hearing.  Mr del Fante, representative for the grantee party did not attend the hearing, however had confirmed the grantee party's consent by way of email attaching a signed consent minute prior to the hearing. All parties present confirmed their consent to the determination in the terms sought.  Ms Raina Savage, counsel for the native title party, advised she was satisfied that the facts set out in para 10 of the application were correct and that she and Yamatji had been properly instructed by the native title party to consent to the determination.  She was present at a meeting of the Yugunga-Nya working group held at Meekatharra on 29 September 2005 at which the parties reached agreement about the doing of the future act.

2. The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of the native title party for a State Deed (i.e. a s 31(1)(b) agreement), referred to in para 10 of the application, as a legitimate basis for seeking a consent determination (see Evelyn Gilla). I adopt the findings from para [13] of that determination in relation to the responsibilities of the Yamatji Land and Sea Council as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act.

3. The proposed consent determination is sought to be expressed in terms that the act may be done ‘pursuant to’ the terms of the agreement.  I refer to the decision in Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006) Hon C J Sumner. At paras [9]-[11] I considered past Tribunal consent determinations made subject to conditions. I noted that whilst the Tribunal has a broad power to impose conditions there are some limitations the most specific of which is that the Tribunal cannot impose a condition for payments to be made to a native title party based on the amount of profits made, income derived or things produced by the grantee party as a result of the doing of the future act (s 38(2); see discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214). I noted that the Tribunal has made a number of determinations of this kind only after seeing the relevant agreement and satisfying itself that it does not contain terms which the Tribunal has no power to impose. In the present matter I have read the agreement and it does not contain terms which the Tribunal does not have power to impose. In these circumstances I am prepared to make the determination pursuant to the terms of the agreement.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E51/1079 to Murchison Exploration Pty Ltd, may be done pursuant to an agreement entitled ‘Murchison Exploration Pty Ltd and Yugunga Nya Claim Group WC99/046’ dated 25 January 2006.

Hon C J Sumner
Deputy President
13 June 2006