Gnulli People/Rodney Laurence Bellotti/Western Australia
[2006] NNTTA 32
•5 April 2006
NATIONAL NATIVE TITLE TRIBUNAL
Gnulli People/Rodney Laurence Bellotti/Western Australia, [2006] NNTTA 32
(5 April 2006)
Application No: WF06/8
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Ronald Crowe and Others on behalf of the Gnulli People (WC97/28) (Applicant/native title party)
- and -
Rodney Laurence Bellotti (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Dan O’Dea, Member
Place: Perth
Date: 5 April 2006
Catchwords: Native title — future act — application for determination for the grant of prospecting licences — executed ancillary agreement — logistical difficulties preclude execution of a 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(1)(b), 35, 38, 203B, 203BB, 203BC, 109
Mining Act 1978 (WA)
Cases:Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mr Peter Coppin and Others on behalf of Njamal/Mr 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
Hearing date: 8 March 2006
Representative of the
native title party: Mr Nathan Cammerman, Yamatji Land and Sea Council
Counsel for the
native title party: Mr Matthew O’Sullivan, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Rodney Bellotti
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 16 October 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of Prospecting Licences P09/418 and P09/419 under the Mining Act 1978 (WA) to Rodney Laurence Bellotti (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).
The native title party with respect to these proceedings is:
· Laurence Cooyou, Ronald Cooyou, Sydney Dale, Gwen Cooyou, Mary Franklin, Ruby McIntosh and Sharon Crowe on behalf of the Gnulli People (WC97/28) (‘the native title party’).
The areas and locations of the proposed licences are as follows:
·P09/418 – 99.99 hectares, 99 kilometres northerly of Gascoyne Junction in the Shire of Carnarvon;
·P09/419 – 199.98 hectares, 98 kilometres northerly of Gascoyne Junction in the Shire of Carnarvon.
Each proposed licence is overlapped entirely by the registered claim of the native title party.
On 6 January 2003 objections to the inclusion of the expedited procedure statement in relation to the proposed licences were lodged by the native title party (WO03/8 and WO03/9). On 17 March 2003, the Tribunal made a determination by consent that the expedited procedure was not attracted, with the consequence that normal negotiation procedure provided for in s 31 of the Act applied from that date.
On 10 February 2006, being a date more than six months after the s 29 notice was given, Yamatji Land and Sea Council (‘Yamatji’) on behalf of the Gnulli People, made an application pursuant to s 35 of the Act for a future act determination under s 38. Yamatji is the designed representative body for native title claimants in the Geraldton region pursuant to s 203B of the Act and as such has authorisation to act on behalf of the Gnulli People. Paragraph 10 of the application asserts that the parties reached agreement about the doing of the act during a Gnulli working group meeting held on 24 November 2004 and that the native title party consents to the doing of the act pursuant to the terms of the agreement dated 27 October 2005, executed by the native title party and grantee party. It is also stated that Yamatji is satisfied that the native title party collectively consents to the future act determination as evidenced by the resolution of the working group meeting of 24 November 2004. No details of this resolution are provided. The Form 5 further asserts that the time and costs involved in obtaining signatures on a State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and each of the native title parties)) from each of the named applicants, as required by the Government party, are significant, and that such an exercise would be prohibitive if undertaken for every future act determination.
Appended to the s 35 determination application is a minute of a consent determination in the following terms, which has since been executed in counterparts by Mr Jeremy Ryan for and on behalf of the native title party, Mr Rodney Bellotti 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, 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 Prospecting Licences 09/418 and 09/419 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 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 8 March 2006, the Tribunal conducted a hearing. Mr Matthew O’Sullivan from Yamatji appeared as counsel for the native title party, Mr Rodney Bellotti represented the grantee party and Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party. At the hearing, although these persons confirmed their consent to the future act determination in the terms sought, Mr O’Sullivan advised that he had not been present at the meeting of 24 November 2004, at which it was alleged that the native title party had consented to the grant of the proposed licences and the making of a consent determination application, and therefore could not state of his own knowledge that the requisite authorisation had been given.
It is my view that in matters such as this, where the legal representative of a native title party is not of his own knowledge able to confirm authorisation to the consent determination, further documentary evidence is required to support the application for a consent determination, such as that provided in Mr Peter Coppin and Others on behalf of Njamal/Mr 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. Accordingly, I did not accept Mr O’Sullivan’s verbal assertions that authorisation had been given and directed that evidence be provided showing the basis on which the native title party representative believed that consent had been given.
On 31 March 2006 the Tribunal received evidence in the form of an affidavit of Mr O’Sullivan, dated 30 March 2006. Mr O’Sullivan deposes (inter alia):
‘…
5. The Gnulli native title claim group has adopted a process of decision making in relation to the making of the Gnulli claim and dealing with matters arising from it, including entering into agreement about the doing of future acts.
6. The Gnulli native title claim group has authorised 15 members of the native title claim group to deal with day to day matters arising from the Gnulli claim including dealing with matters relating to Aboriginal heritage and exercising procedural rights pursuant to Part 2 Division 3 of the Native Title Act(Cth) 1993. Those persons are known as the Gnulli working group.
7. Upon information and belief the Gnulli working group convened a duly authorised meeting on 24 November 2004 at Lotteries House, Carnarvon to consider various matters concerning the Gnulli native title claim.
8. Upon information and belief the Gnulli working group met with the Grantee Party at the Gnulli working group meeting of 24 November 2004.
9. Upon information and belief by a duly passed resolution the Gnulli working group consented to the grant of the exploration (sic) licence applications conditional upon receipt of a heritage agreement duly executed by the Grantee Party.
10. Upon information and belief on the 27 October 2005 the YMBBMAC received a heritage agreement duly executed by the Grantee Party.
11. My belief in paragraphs seven through nine is based upon my review of the confirmed minutes of the Gnulli Working Group Meeting of 24 November 2004, which meeting appeared to be duly convened.
12. My belief in paragraph ten is based upon personal discussion I have had with the YMBBMAC Future Acts Officer who received and processed the heritage agreement duly executed by the Grantee party.
13. I am satisfied that on the basis of the resolution of the Gnulli working group and the satisfaction of the conditions therein stipulated that the Gnulli native title claim group consents to the grant of the exploration (sic) licences applications in accordance with their agreed decision making process and have given their consent to a determination that the exploration (sic) licence applications be granted.’
Mr O’Sullivan’s affidavit is somewhat curiously worded and it would have been of greater assistance if he could have identified the author of the minutes he refers to in paragraph 11. I would also note that the affidavit was sworn before an individual referred to as an ‘experienced lawyer’. I am not aware that this is a relevant category for the purposes of the swearing of affidavits in any relevant jurisdiction. In the Federal Court the relevant category would be a solicitor admitted to practice in the Federal Court. Be that as it may, the Tribunal is not bound by forms and technicalities and I accept the import of the facts deposed to by Mr O’Sullivan.
Findings
I take into account that as the 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)); see also Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner at [10]. Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of Yamatji’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, I am satisfied that the native title party has consented to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Prospecting Licences P09/418 and P09/419 to Rodney Laurence Bellotti, may be done.
Dan O’Dea
Member
5 April 2006
4
3
0