Gooniyandi Combined 2/Western Australia/Fox Resources Ltd
[2008] NNTTA 26
•27 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Combined 2/Western Australia/Fox Resources Ltd, [2008] NNTTA 26 (27 February 2008)
Application No: WF08/2
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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Fox Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 27 February 2008
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants unable to execute State Deed – Heritage Protection Agreement entered into – native title party as a whole consents to the determination – logistical difficulties – determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd [2006] NNTTA 141 (24 October 2006), Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 22 February 2008
Representative of the Mr Robert Houston
native title party: Kimberley Land Council
Representative of the Mr Laurie Chew
grantee party: Fox Resources Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 17 December 2003, 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 E80/3242 (‘the proposed licence’) under the Mining Act 1978 (WA) to Fox Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of some 123.24 square kilometres located 108 kilometres south easterly of Fitzroy Crossing in the Shire of Halls Creek. It is 100 per cent overlapped by the Gooniyandi Combined 2 registered claim (WC00/10, registered from 23 April 2001).
The native title party with respect to these proceedings is 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 on behalf of Gooniyandi Combined 2 (WC00/10)
On 13 April 2004 the native title party lodged an objection to the expedited procedure application with the Tribunal in respect of the proposed licence (designated WO04/33). Following negotiations, parties sought a consent determination from the Tribunal the expedited procedure did not apply. On 30 July 2004 the Tribunal made the consent determination and the normal negotiation procedure as contemplated by s 31 of the Act commenced from that date.
On 29 May 2007 the Government party sought mediation assistance from the Tribunal as provided for under s 31(3) of the Act (designated WM07/33). Following a series of mediations parties reached agreement and the mediation was finalised on 2 August 2007.
On 4 February 2008, 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. 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 had 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) had not been executed by all the persons named as part of the native title applicant owing to the logistical and resource difficulties faced by its representative the Kimberley Land Council Aboriginal Corporation (‘the KLC’).
Attached to the application is the affidavit of Ms Cecelia Jane Tucker, native title officer of the KLC, affirmed in February 2008 in the following terms:
‘I, Cecelia Jane Tucker of 6B Mary St, Broome, in the State of Western Australia, Native Title Officer, do solemnly and sincerely declare and affirm:
1.I am employed as a native Title Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’) and work in the Broome Office.
2.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.’
Also attached to the application is a minute of consent determination in the following terms executed by Mr Robert Powrie, principal legal officer of the KLC and counsel for the native title party, and subsequently by Mr Laurie Chew, Project Manager of Fox Resources for the grantee party, and Mr Jeff O’Halloran, State Solicitors Office for 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 section 31(1)(a) of the Native Title Act 1993.
2.The Government Party, the Native Title Parties and the Grantee Party has complied with the requirements of section 31(1)(b) of the Native Title Act1993.
3.The Government Party, the Native Title Parties and the Grantee Party consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 80/3242 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 their consent. The KLC is the recognised representative body under the Act for the native title party. 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 22 February 2008 a hearing was conducted at which all parties were represented and confirmed their consent in the terms sought. Mr Houston confirmed that he had instructions from the native title party to consent to the grant of the licence.
Findings
On the basis of the affidavit of Ms Tucker and the information provided by native title party’s counsel at the above hearing, I am satisfied that the native title party has agreed to the grant of the proposed licence and consents to a determination in the terms sought. 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 (Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd [2006] NNTTA 141 (24 October 2006), Daniel O’Dea) and I adopt the relevant findings in that matter, notably paragraph 12.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E80/3242 to Fox Resources Ltd, may be done.
Daniel O’Dea
Member
27 February 2008
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