Gnulli/Western Australia/Eastern Goldfields Exploration Pty Ltd
[2007] NNTTA 81
•14 September 2007
NATIONAL NATIVE TITLE TRIBUNAL
Gnulli/Western Australia/Eastern Goldfields Exploration Pty Ltd, [2007] NNTTA 81 (14 September 2007)
Application No: WF07/20
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
Ronald Crowe and Others on behalf of Gnulli (WC97/28) (native title party)
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The State of Western Australia (Government party)
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Eastern Goldfields Exploration Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Dan O’Dea, Member
Place: Perth
Date: 14 September 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licences – Alternative Heritage Agreement between the native title party and the grantee party – logistical difficulties preclude execution of a State Deed – 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 29, 31, 35, 38, 109, 203B, 203BB, 203BC
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
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
Hearing dates: 10 August 2007 and 10 September 2007
Representative of the Mr Greg Young, Yamatji Land and Sea Council
native title party: Ms Louahna Lloyd, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Richard Cooke, Eastern Goldfields Exploration Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 1 June 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E09/1190 and E09/1191 (‘the proposed licences’) under the Mining Act 1978 (WA) to Eastern Goldfields Exploration Pty Ltd (‘the grantee party’).
On 27 July 2005 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E09/1188 and E09/1189 (‘the proposed licences’) under the Mining Act 1978 (WA) to Eastern Goldfields Exploration Pty Ltd.
The native title party in respect of these proceedings is:
Laurence Cooyou, Ronald Crowe, Sydney Dale, Gwen Cooyou, Mary Franklin, Ruby McIntosh and Sharon Crowe on behalf of Gnulli (WC97/28 – registered from 14 April 1997) (‘the native title party’).
The areas and locations of the proposed licences are as follows:
E09/1190 – 219.5 square kilometres, located 159km westerly of Paraburdoo in the Shire of Ashburton/Upper Gascoyne. The proposed licence is 95.2 per cent overlapped by the registered claim of Gnulli WC97/28.
E09/1191 – 219.1 square kilometres, located 145km south westerly of Paraburdoo in the Shire of Upper Gascoyne. The proposed licence is 89.6 per cent overlapped by the registered claim of Gnulli WC97/28.
E09/1188 – 218.93 square kilometres, located 159km south westerly of Paraburdoo in the Shire of Upper Gascoyne. The proposed licence is 99.5 per cent overlapped by the registered claim of Gnulli WC97/28.
E09/1189 – 219.34 square kilometres, located 153km south westerly of Paraburdoo in the Shire Upper Gascoyne. The proposed licence is 100.0 per cent overlapped by the registered claim of Gnulli WC97/28.
On 26 July 2007, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. It is stated in Paragraph 10 of the application that the grantee party and the native title party confirm that they have reached an Alternative Heritage Agreement and the grantee party agrees to abide by the provisions of that agreement. As a consequence the native title party requested that the future act determination be made by consent on the basis that ‘logistical difficulties’ preclude arrangements for the native title party to execute a State Deed (an agreement on the kind contemplated by s 31(1)(b) of the Act).
The s 35 determination application was accompanied by a minute of a consent determination, executed by Mr Sukhpal Singh on behalf of the native title party. It was subsequently executed by Mr Richard Cooke 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 have 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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’, being the grant of Exploration Licences 09/1188 to 09/1191, may be done.’
The s 35 consent determination application attached a Department of Industry and Resources (‘DoIR’) Tengraph Quick Appraisal indicating that 4.8 per cent of E09/1190 intruded into the registered claim of the Thudgari People (WC97/95 – registered from 18 November 1997). On the 3 September the DoIR provided evidence of a formal request in writing from Mr Cooke, Chief Executive Officer, Eastern Goldfields Exploration Pty Ltd dated 18 October 2006, seeking an excision on grant of the whole of the area of the proposed licence E09/1190 that intruded into the registered claim of the Thudgari People. Mr Dave Thomson for the DoIR provided a statement in writing advising that on grant of the exploration licence E09/1190 an endorsement excluding any area covered by the Thudgari People from the granted licence area would be included on the licence.
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 10 August 2007, the Tribunal conducted a hearing. Mr Greg Young from the Yamatji Land and Sea Council (‘YL&SC’) appeared as counsel for the native title party, Mr Cooke represented the grantee party and Mr Rod Wahl and Mr Thomson represented the Government party. At the hearing Mr Young advised that he could not confirm that a resolution had been passed at a Gnulli working group meeting authorizing consent. Mr Young advised that the next Gnulli working group meeting was scheduled on 30 August and he would seek confirmation of consent then. On this basis I adjourned the hearing until early in September to enable the YL&SC to confirm the details of their position.
On 5 September 2007 the Tribunal was informed in writing by Ms Louahna Lloyd, a senior legal officer with the YL&SC that Ms Lloyd had met with the Gnulli working group on 30 and 31 August and during that two day meeting, the group passed a resolution. The resolution instructed the YL&SC that the native title party consent to a determination under s 38 of the Native Title Act 1993, that the ‘act’ being the grant of exploration licences E09/1188, E09/1189, E09/1190 and E09/1191 may be done. She informed the Tribunal that the native title party had entered into an Alternative Heritage Agreement with the grantee party after discussions at the Gnulli working group meeting on 27 June 2007. Ms Lloyd advised that the resolution was passed because of logistical difficulties in obtaining the signature of each of the applicants, which precludes the execution of a State Deed.
On 10 September the Tribunal conducted an adjourned hearing. Ms Lloyd from YL&SC appeared as counsel for the native title party, Mr Cooke represented the grantee party and Mr Wahl and Mr Thomson represented the Government party. Ms Lloyd confirmed that she had met with the Gnulli at the working group meeting held on 31 August and had instructions to consent.
In relation to E09/1190, Mr Cooke confirmed that he had made a request in writing to the DoIR to excise that portion of the application area that intruded into the Thudgari claim. Upon reconsideration and, in light of proposed negotiations with the Thudgari group, Mr Cooke now sought to withdraw that request and omit E09/1190 from this consent determination application in order that, subject to Thudgari consent, he might be granted the whole of the application area at a later point. All parties accepted this position and made no objection to the proposal.
Findings
I take into account that as the representative body under the Act, YL&SC 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 YL&SC’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 application. I note that E09/1190 will not be included in the determination.
Determination
By consent the Tribunal determines that the acts, namely the grant of exploration licences E09/1188, E09/1189 and E09/1191 to Eastern Goldfields Exploration Pty Ltd, may be done.
Dan O’Dea
Member
14 September 2007
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