Gooniyandi Combined 2/Western Australia/Cullen Exploration Pty Ltd
[2011] NNTTA 104
•16 June 2011
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Combined 2/Western Australia/Cullen Exploration Pty Ltd, [2011] NNTTA 104 (16 June 2011)
Application No: WF11/9
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
Gooniyandi Combined 2 (WC00/10) (Applicant/native title party)
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The State of Western Australia (Government party)
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Cullen Exploration Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 16 June 2011
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 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
Mining Act 1978 (WA)
Cases:Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70
Foster v Copper Strike Ltd (2006) 200 FLR 182; [2006] NNTTA 61
Dimer and Sambo and Nudding and The State of Western Australia and Boyes [2003] NNTTA 117
Gooniyandi Combined 2/Western Australia/Fox Resources Ltd [2008] NNTTA 26
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50
Hearing date: Determined on the papers
Representative of the
native title party: Mr Reece O’Brien, Kimberley Land Council
Representative of the
grantee party: Ms Sieu Vong, McMahon Mining Title Services
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Isabel McCaugh, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
Background
On 4 November 2009, 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 E04/1933 (the proposed licence) under the Mining Act 1978 (WA) to Cullen Exploration Pty Ltd (the grantee party).
The proposed licence comprises an area of 617.57 square kilometres and is located 36 kilometres south west of Fitzroy Crossing in the Shire of Derby-West Kimberley. The proposed licence is 62.66% within the registered claim of the Gooniyandi Combined #2 (WC00/10 – registered from 23 April 2001).
The registered native title claimants on behalf of the Gooniyandi Combined #2 People are Butcher Cherel, David Street, Dora Sharpe, Eric Lawford, John Till, Lorraine Shandley, Maureen Carter, Neville Sharpe, Reenie Chestnut, Rita Shandley, Stanley Holloway, Suzy Lamey, Teddy Cranbell and Topsy Chestnut (the ‘native title party’).
On 20 April 2011, being a date more than six months after the s 29 notice was given, the Kimberley Land Council (‘KLC’), on behalf of the native title party, made an application pursuant to s 35 of the Act for a determination under s 38 of the Act. At paragraph 10 of the application, the native title party requested that the future act determination be made by consent on the basis that an ancillary agreement has been reached with the grantee party but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) has not been executed by all the persons named as part of the native title applicant owing to logistical difficulties.
A minute of consent determination in the following terms accompanied the application and was executed in counterpart by Mr Nolan Hunter, CEO of the KLC, on behalf of the native title party, Mr Shannon McMahon on behalf of the grantee party and Mr Rod Wahl of the 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 Exploration Licence 04/1993 may be done.’
The basis on which KLC believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavit of Mr Reece Donald O’Brien, affirmed 7 June 2011. The relevant paragraphs of Mr O’Brien’s deposition are set out below:
‘2.I have perused the relevant file. On or about 25 October 2006, the Gooniyandi Native Title Claim Group instructed the KLC to do the following
a. Negotiate and enter into Native Title and Heritage Protection Agreement (HPA) with Grantees (Exploration and Mining Companies) seeking access to traditional lands, on the terms and conditions as contained in the KLC Standard HPA, as approved by the Executive from time to time; and
b. To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA.
3.On or about 4 August 2010 the KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee Party to enter into a Native Title and Heritage Protection Agreement (‘HPA’).
4.On or about 18 January 2011, the parties reached agreement that the future act may be done, subject to the terms and conditions of the HPA.
5.I believe that entry into a Consent Determination is consistent with the instructions of the claimants.’
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 KLC is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. 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) 164 FLR 361; [2001] NNTTA 50).
The Inquiry
On the basis of the information contained in the application, attached affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
Findings
The Tribunal has previously accepted the difficulties experienced by the KLC in obtaining the signatures of the native title party to a State Deed as a basis for a consent determination (Gooniyandi Combined 2/Western Australia/Fox Resources Ltd [2008] NNTTA 26) and I am prepared to accept that the same logistical difficulties also apply in the circumstances of this particular matter.
Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Dimer and Sambo and Nudding and The State of Western Australia and Boyes [2003] NNTTA 117; Foster v Copper Strike Ltd (2006) 200 FLR 182; [2006] NNTTA 61; and Dimer and Others v Stewart and Others (2006) 200 FLR 385; [2006] NNTTA 70).
I am satisfied that, based on the evidence provided to the Tribunal in this matter the native title party, as a whole, has agreed to the grant of the proposed permit and consents to a determination in the terms sought.
Taking those findings into account, I accept the evidence of the KLC that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E04/1933 to Cullen Exploration Pty Ltd, may be done.
Helen Shurven
Member
16 June 2011
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