FMG Chichester Pty Ltd/Dudley Wabbie and Others on behalf of Palyku; Wobby Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia
[2006] NNTTA 79
•16 June 2006
NATIONAL NATIVE TITLE TRIBUNAL
FMG Chichester Pty Ltd/Dudley Wabbie and Others on behalf of Palyku; Wobby Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia, [2006] NNTTA 79 (16 June 2006)
Application No: WF06/22
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
FMG Chichester Pty Ltd (Applicant/grantee party)
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Dudley Wabbie and Others on behalf of Palyku (WC99/16) (Palyku native title party)
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Wobby Parker and Others on behalf of the Martu Idja Banyjima People (WC98/62) (Martu Idja Banyjima native title 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: 16 June 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants not signed state deed – deceased applicant - native title party as a whole consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109, 203
Cases:Angus Abdullah and Others on behalf of Njamal/Dudley Wabbie and Others on behalf of Palyku/Tyson Resources Pty Ltd; Wedgetail Exploration NL/State of Western Australia, NNTT WF06/7 [2006] NNTTA 27 (24 March 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
Representative of the
grantee party: Mr Ken Green, Green Legal Lawyers
Representative of the Mr Rhys Davies
Palyku native title party: Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation.
Counsel for the
Martu Idja Banyjima
native title party: Mr Paul Sheiner, Christensen Vaughan Lawyers
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Ms Paola O'Neill, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 16 November 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 E45/2708 (‘the proposed licence’) under the Mining Act 1978 (WA) to FMG Chichester Pty Ltd (‘the grantee party’).
The area and location of the proposed licence is as follows:
E45/2708 – 222.24 square kilometres, 56 kilometres easterly of Wittenoom in the Shires of Ashburton and East Pilbara
The proposed licence overlaps two adjoining registered native title claims being Palyku (WC99/16, registered form 2 August 1999) at 3.7%, and Martu Idja Banyjima People (WC98/62, registered from 29 September 1998) at 96.3%.
The native title parties with respect to these proceedings are:
Mr Dudley Wabbie, Name Withheld for Cultural Reasons, Mrs Cheryl Yuline and Mrs Florrie Sam on behalf of Palyku (WC99/16) ('Palyku'); and
Mr Wobby Parker, Mr Maitland Parker, Name Withheld for Cultural Reasons and Name Withheld for Cultural Reasons on behalf of Martu Idja Banyjima People (WC98/62) (‘Martu Idja Banyjima’)
On 17 May 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.
Paragraph 14 of the application inter alia states:
‘The applicant has entered into comprehensive Land Access Agreements with both the MIB and the Palyku Claimants. Under those Land Access Agreements, each of the MIB claimants and the Palyku Claimants are required, within 28 days of being so requested by the applicant, to duly sign and deliver to the applicant agreements as contemplated by s31(1) of the Native title Act 1993 ("State Deeds"). …
The applicant has received preliminary indication from the Pilbara Native Title Service who represent the Palykju Claimants that there is likely again to be an issue with the competency of one of the Palyku Claimants and accordingly it may be that the Palyku Claimants will be unable to duly sign and deliver to the applicant the relevant State Deed....
In the circumstances, the applicant makes this application in an endeavour to mitigate any loss it might otherwise suffer should the Palyku Claimants fail to duly sign and deliver to the applicant State Deeds as required by their Land Access Agreement.’
The Palyku, Government and grantee parties later provided a minute of a consent determination in the following terms, executed by Ms Helen Lawrence, solicitor with the Pilbara Native Title Service which is the service arm of the relevant native title representative body the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) on behalf of Palyku, Mr Ken Green on behalf of the grantee party and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government 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, each of the Native Title Parties and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of E45/2708 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/parties) 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).
The inquiry
On 2 June 2006, the Tribunal conducted a hearing at which all parties were represented.
Palyku
At the hearing Mr Davies, articled clerk and representative for the Palyku presented the following documents:
Affidavit by Jeremy Joseph Ryan, Solicitor employed by YMBBMAC, acting for the Palyku dated 1 June 2006 ('the Affidavit')
Copy of a State Deed (s 31(1)(b) agreement) for the proposed licence E45/2708 executed by Florrie Sam and Cheryl Yuline, two of the four Palyku named applicants.
Copy of the cover and final pages of the "FMG Land Access Agreement" dated 10 October 2005 and executed by Russell J Scrimshaw on behalf of the grantee party and all of the four Palyku named applicants (Dudley Wabbie, Florrie Sam, Cheryl Yuline and Name withheld for cultural reasons) by either signature or mark.
Mr Ryan states in paragraphs 10-15 of the Affidavit that the State Deed for the proposed licence has not been executed by one of the named applicants because the person is now deceased (although the person had previously executed the Land Access Agreement) and Mr Dudley Wabbie. Mr Ryan states that Mr Wabbie is a resident in a nursing home and not competent to execute legal documents. At paragraphs 16-17 Mr Ryan states he is satisfied that the Palyku consent to the grant of the proposed licence following a Palyku community meeting on 8 October 2005 at which the community authorised the Palyku named applicants to execute the FMG Land Access Agreement on behalf of Palyku.
The Palyku, Government and grantee parties confirmed their consent to the determination in the terms sought. Mr Davies referred to paras 16-17 of the affidavit at which Mr Ryan states he is satisfied that Palyku consents to the determination.
The Tribunal has previously accepted Mr Wabbie’s inability to execute a State Deed as a legitimate basis for seeking a consent determination (see Angus Abdullah and Others on behalf of Njamal/ Dudley Wabbie and Others on behalf of Palyku/ Tyson Resources Pty Ltd; Wedgetail Exploration NL/ State of Western Australia, NNTT WF06/7 [2006] NNTTA 27 (24 March 2006) Hon C J Sumner). I adopt the findings from paras [10] and [11] of that determination.
With regards to the deceased applicant, at paragraphs 11 and 12 of the Affidavit, Mr Ryan states that he was advised of the death by Palyku representatives on 10 April 2006 and that a death certificate is in the process of being obtained but that a copy was not available in time for this hearing. I am satisfied on the evidence that one of the named applicants who has not signed the State Deed is now deceased.
As the designated representative body under the Act the YMBBMAC, and the Pilbara Native Title Service, 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.
Martu Idja Banyjima
Mr Paul Sheiner, counsel for the Martu Idja Banyjima (‘MIB’) confirmed that a Land Access Agreement had been reached between the MIB and the grantee party which provided for the proposed licence but that a State Deed had not yet been executed. He requested seven days to seek instructions. Accordingly I directed that within seven days Mr Sheiner provide a State Deed for the proposed licence executed by the MIB named applicants or an affidavit/statement explaining why it has not been possible to provide such. On 12 June 2006 a copy of the State Deed executed by the two living MIB named applicants (Wobby Parker and Maitland Parker) was forwarded to the Tribunal by the grantee party. The State Deed has not been executed by all parties and lodged with the Tribunal. Even if it were to be, this matter could not be resolved by way of a State Deed (s 31(1)(b) agreement) as there is no such agreement executed by all of the Palyku named applicants. However, I can accept the State Deed executed by Mr Wobby Parker and Mr Maitland Parker (the two living named applicants) as evidence that the MIB native title party consent to the determination sought. I also accept based on the information provided by the grantee party in its application and Mr Sheiner that a Land Access Agreement dealing with the grant of the proposed licence has been concluded between the grantee party and MIB native title party.
Based on the evidence provided I am satisfied that the Palyku native title party and MIB native title party have agreed to the grant of the proposed licence and consent to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E45/2708 to FMG Chichester Ltd, may be done.
Hon C J Sumner
Deputy President
16 June 2006
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