Gloria Fogarty & Ors on behalf of the Badimia People/Western Australia/Graham William Platt
[2008] NNTTA 24
•19 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Gloria Fogarty & Ors on behalf of the Badimia People/Western Australia/Graham William Platt [2008] NNTTA 24 (19 February 2008)
Application No: WF07/41
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
Gloria Fogarty and Others on behalf of the Badimia People (WC96/98) (Applicant/native title party)
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The State of Western Australia (Government party)
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Graham William Platt (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 19 February 2008
Catchwords: Native title – future act – application for determination for the grant of mining lease – named applicants not signed agreements – difficulties preclude execution of ancillary agreement and State Deed – 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. 29, 31, 35, 38, 109
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon CJ Sumner
Gnulli People/Rodney Laurence Bellotti/Western Australia, NNTT WF06/8, [2006] NNTTA 32 (5 April 2006), Daniel O’Dea
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea
Hearing date: 25 January 2008
Representative of
the native title party: Ms Giselle Harris, Yamatji Land and Sea Council
Counsel for the
native title party: Mr Greg Young, Yamatji Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Industry and Resources
Grantee party: Mr Graham William Platt
REASONS FOR FUTURE ACT DETERMINATION
On 13 September 2006 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 mining lease M58/341 (‘the proposed lease’) to Graham William Platt (‘the grantee party’).
On 8 March 2007 the Yamatji Land and Sea Council (‘YLSC’) on behalf of the native title party requested under s 31(3) of the Act that the Tribunal mediate among the parties to assist in obtaining their agreement.
Mediation concluded on 17 August 2007 when the Tribunal was advised that the parties had reached agreement in principle.
The proposed lease comprises an area of 129.20 hectares, is situated 13 kilometres southerly of Mount Magnet in the Shire of Mount Magnet and is entirely overlapped by the registered claim of the Badimia People (WC96/98, registered from 4 October 1996). The native title party in respect of these proceedings is therefore:
Mr Albert Little, Mr Des Little, Mr Des Thompson, Mr Frank Walsh (Jnr), Mr Frank Walsh (Snr), Mr John Ashwin, Mr Ollie George, Mr Richard Little, Mr Percy George, [name withheld for cultural reasons], Ms Gloria Fogarty, Ms Hazel Little, Ms Irene Harris, Ms Nancy Wallam, Ms Olive Gibson, [name withheld for cultural reasons] (‘native title party’).
On 28 November 2007, being a date more than six months after the s 29 notice was given, the native title party made application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence. The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, subsequently executed by Mr Greg Young, Senior Legal Officer with YLSC for and on behalf of the native title party, Mr GW Platt 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)
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 Mining Lease 58/341 may be done’.
Paragraph [10] of the application includes the statements below:
‘The Applicant and the Grantee reached agreement about the act at a Badimia working group meeting held in Mount Magnet on 12 June 2007.
The Applicant now makes this application for a determination because of the logistical difficulties of arranging for the Applicant to execute a State Deed in respect of the tenement sought by the Grantee Party, as contemplated by s31(1)(b) of the Native Title Act. One of the members of the Applicant party has indicated that he does not wish to sign any documents connected with future act matters and another member cannot be located at present.’
The native title party has also filed with the Tribunal the affidavit of Gregory Raymond Laurence Young, a solicitor employed by YLSC, affirmed 22 January 2008. It is deposed in paragraph [18]:
‘The said Form 5 further stated that one of the members of the Applicant party had indicated that he did not wish to sign any documents connected with future act matters and another member could not be located. I respectfully request to amend this statement in that 3 applicants have refused to sign any documents connected with future act matters, being those applicants referred to in paragraph 9 of this affidavit.’
Paragraph [10] of the application includes the following statements:
‘The Applicant consents to the proposed act being done, being the grant of Mining Lease M58/341 the subject of this consent determination.
The Yamatji Land & Sea Council is satisfied that the Applicant members collectively consent to the determination, as evidenced by the resolution of the working group passed at the working group meeting on 22 November 2007.’
Paragraph [16] of Mr Young’s affidavit contains the specifics of the abovementioned resolution and a resolution in relation to the execution of the agreement:
‘On 22 November 2007, the Badimia working group passed the following two resolutions:
“Resolution 20071122.2
The Badimia Working Group instructs YLSC to make an application under Section 35 of the Native Title Act that the “act” – being the grant of mining lease M58/341 – be done by consent.
“Resolution 20071122.3
The Badimia Working Group resolves that the mining agreement between the Badimia People and the grantee, Graham William Platt, in relation to mining lease M58/341, be executed by the Badimia applicants who are present today’s Working Group meeting, and that the execution of the Agreement by those applicants will constitute a legally binding and enforceable contract with the grantee.’
In the affidavit of Mr Young it is deposed in paragraph [5]:
‘Decisions of the Native Title Party with respect to Native Title related matters (including future act agreements) are made by the resolution and consensus of the Badimia working group, which is a sub-section of the wider Badimia claimant group. Motions dealing with future act matters are carried by a simple majority vote (i.e. 50% plus one) at working group meetings. The members of the working group were nominated and authorized by the Badimia claimant group at a community meeting more than a decade ago. The primary function of the working group is to provide formal instructions to YLSC on behalf of the Native Title Party in relation to native title related matters and to share information with and report back to, the claimant group. The working group has full authority from the claimant group to provide those instructions and receives legal, technical and secretarial support from YLSC.’
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. 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 and findings
On 25 January 2008, the Tribunal conducted a hearing attended by Mr Greg Young, appearing as counsel for the native title party, the grantee party Mr Graham Platt, and Mr Rod Wahl and Mr Dave Thomson, appearing for the Government party. The grantee and Government parties each confirmed their consent to the determination in the terms provided.
Mr Young confirmed the nature of the resolution providing for the YLSC to lodge a s 35 consent determination application on behalf of their clients in the circumstances arising in this matter, as passed at the Badimia working group meeting held on 22 November 2007 and cited in paragraph [10] above, and advised his belief that as a result of resolution 20071122.2 YLSC were authorised to consent to a determination that the act may be done.
Mr Young also provided the Tribunal with a verbal summary of the formation, authority and composition of the Badimia working group, advising that on 27 July 1998 the Badimia claimant group informed YLSC that it had appointed some of its members to form a working group on 24 July 1998 and that it had authorised the working group to make decisions on its behalf in relation to native title matters including future acts. With respect to representation of the those persons jointly comprising the applicant on the working group Mr Young advised that there are currently 14 people who comprise the Badimia applicant and that approximately 12 of the 20 members of the working group are named applicants. Mr Young also advised that of these named applicants eight or nine were at the meeting on 22 November 2007 at which the resolutions in relation to the future act the subject of this determination were passed.
It is well established that the ‘native title party’ is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20]). This means that the refusal or inability of one of the persons named as an applicant to consent to the grant is not determinative of whether the native title party as a whole consents. Therefore if the Tribunal is satisfied that the applicants collectively consent and do so with the authority of the wider claimant group then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made. The Badimia People have previously made a future act determination application in circumstances where one of the named applicants refused to sign the relevant agreements (Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon CJ Sumner). In that case the Tribunal considered it appropriate to make a determination on the basis that the native title party had collectively consented to it.
In this particular case three of the named applicants have refused to sign the documents that would enable the grant of M58/341. Notwithstanding these refusals I am satisfied based on the application, the affidavit of Mr Young and the information provided by Mr Young at the hearing that the native title party has consented to the doing of the act and to the making of an application for a consent determination. In summary there is sufficient information before me for me to be satisfied that the wider claimant group has authorised the working group to act on its behalf in relation to future acts, that the working group has resolved that the act can be done and that YLSC can make the consent determination application on its behalf. In relation to the responsibilities of the YLSC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act I adopt Member O’Dea’s findings from paragraph [12] of Gnulli People/Rodney Laurence Bellotti/Western Australia, NNTT WF06/8, [2006] NNTTA 32 (5 April 2006), Daniel O’Dea (‘Bellotti’).
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M58/341 to Graham William Platt may be done.
John Catlin
Member
19 February 2008
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