Ike Simpson and Ors on behalf of Wajarri Yamatji People/Harold Michael John Foulkes-Taylor and Janette Floyd Foulkes-Taylor/State of Western Australia
[2011] NNTTA 34
•2 March 2011
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson and Ors on behalf of Wajarri Yamatji People/Harold Michael John Foulkes-Taylor and Janette Floyd Foulkes-Taylor/State of Western Australia [2011] NNTTA 34
(2 March 2011)
Application No: WF10/43
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
Ike Simpson and Ors on behalf of the Wajarri Yamatji (WC04/10) (native title party)
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The State of Western Australia (Applicant/Government party)
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Harold Michael John Foulkes-Taylor and Janette Floyd Foulkes-Taylor (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 2 March 2011
Catchwords: Native title - future act - application for determination for acquisition of land- named applicant not signed 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, 61, 62, 109, 151, 253
Land Administration Act 1997 (WA), s 170
Cases:Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon CJ Sumner
Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006) Mr Daniel O’Dea
Ike Simpson and Ors on behalf of Wajarri Yamatji/ Western Australia/ John Edward Telfer, NNTT WF10/17, [2010] NNTTA 164 (13 October 2010) Mr Daniel O’Dea
Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Mid-West Gold Operations Pty Ltd, NNTT WF10/24, [2010] NNTTA 166 (13 October 2010) Mr Daniel O’Dea
Ike Simpson and Ors on behalf of Wajarri Yamatji People/Sinosteel Midwest Corporation Limited/State of Western Australia, NNTT WF10/35, [2010] NNTTA 185 (10 November 2010) Mr Daniel O’Dea
Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner
Hearing Date: Determined on the papers
Representative of the
native title party: Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation
(Self represented) Harold Michael John Foulkes-Taylor & Janette Floyd Foulkes-
grantee party: Taylor
Representatives of the Jeff O’Halloran, State Solicitor’s Office
Government Party Nick Fabriziani, Department of Regional Development and Lands
REASONS FOR FUTURE ACT DETERMINATION
On 1 April 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) and s 170 of the Land Administration Act 1997 (WA) of a future act, namely the acquisition of the rights and interests in an area of land described as Part of Lot 11803 on Deposited Plan 28258 and shown as Lot 350 on Deposited Plan 40451 Volume 3138 Folio 008 (377.76 hectares); and Part of Lot 11803 on Deposited Plan 28258 and shown as Lot 351 on Deposited Plan 40451 Volume 3138 Folio 008 (38.72 hectares). The purpose of the acquisition of the land is to facilitate the issue of a lease.
The subject parcel of land comprises of an area of 416.48 hectares and is situated within the Shire of Yalgoo. It is 100 per cent within the registered claim of the Wajarri Yamatji People (WC04/10 – registered from 5 December 2005). The subject parcel of land also overlaps the registered claim of Mullewa Wadjari Community by 4.17 per cent. The Future Act Determination Application lodged by the Government party states (at 9) that ‘The Government Party and the Mullewa Wajarri [sic] claimants have entered into a State Agreement wherein the Mullewa Wajarri [sic] claimants have agreed to the doing of the proposed act...’
The registered native title claimants on behalf of the Wajarri Yamatji People are:
Ike Simpson, Robin Boddington, Ron Simpson, Charlie Snowball, Monty Walgar, David Jones, Colin Hamlett, Gavin Egan, Mack Mourambine, Timothy Simpson, Bill Pearce, Malcolm Ryan, Neville Mongoo, Gordon Fraser, Rochelle Baumgarten, William Baumgarten and Pam Mongoo (the native title party).
On 22 December 2010, being a date more than six months after the s 29 notice was given, the Minister for Lands, Department of Regional Development and Lands (DRDL) (the Government party), made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed land acquisition.
Attached to the application was a minute of a consent determination, executed by Timothy Sharp, State Solicitor’s Office, on behalf of the Government party; Harold Michael John Foulkes-Taylor, on behalf of the grantee party; and by Mr Akmal Raea Khan, Lawyer, Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the native title party. The minute of consent is in the following terms:
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 (Cth).
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; and
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 taking of all registered and unregistered interests, including any native title rights and interests, in the Land other than interests of the Crown and all rights created by the grant of existing mining tenements under the Mining Act 1981 (WA), for the purpose of facilitating the excision of the old Tardie Homestead area and the issue of a separate lease to Harold Michael John and Janette Floyd Foulkes-Taylor.
The Tribunal can 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 where those representatives have advised the Tribunal of the consent. YMAC is the recognised Native Title Representative Body (NTRB) under the Act for the native title party and represents the native title party in these proceedings.
Attached to the Future Act Determination Application was a copy of an email from Akmal Raea Khan, Lawyer, YMAC, to Nick Fabriziani, DRDL, dated 1 November, 2010, advising of instructions from the Wajarri Yamatji People to proceed to a consent determination.
Paragraphs 18 to 21 of the affidavit of Ms Lisa Randall, Lawyer, YMAC, affirmed on 17 February 2011, explain why a consent determination is sought:
18.In respect of the State Deed, all signatures have been obtained from the Applicants save for:
a. One deceased Applicant; and
b. Mr Ike Simpson.
19.The signature of the deceased Applicant is unable to be obtained.
20.In respect of Mr Ike Simpson, I am informed and do verily believe that on various occasions since April 2010 YMAC has organised for the Applicant and his son and/or daughter to either attend the Geraldton office or for the YMAC Community Liaison Officer to drive to Mr Simpson’s place of residence to affect such signature.
21.Despite such efforts, YMAC has been unable to obtain Mr Simpson’s signature and a meeting for the purpose of signing the State Deed and related documents with the aforementioned Applicant and his son or daughter has not taken place.
In her affidavit, Ms Randall refers to the instructions she received to proceed with a consent determination, obtained from the native title party at a working group meeting in Yalgoo on 20 August, 2010. At paragraph 33 of her affidavit, Ms Randall states:
YMAC is satisfied that the Native Title Party and the Applicants collectively consent to the Proposed Act, as evidenced by the resolution of the Working Group passed at the April Yalgoo Meeting referred to in paragraph 27 above.
The native title party is free to arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit: day-to-day decision-making may be conferred upon a working group. The statutory framework of the Act makes it clear that only the person or persons comprising ‘the applicant’ are authorised to bring a native title application and deal with matters arising from it (s 61(2) and s 62A). Part 2 of Division 3 of the Act, which deals with future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate, where land has been determined, or the Registered Native Title Claimant, where a native title application has been accepted for registration, but not yet determined (s 29(2)). The ‘Registered Native Title Claimant’ is defined in s 253 of the Act as:
... a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.
In circumstances such as this, where one or more of the applicants is unable or unwilling to sign the necessary State Deed, the question for the Tribunal is whether ‘the applicant’ gives consent for the act to be done. The legal practitioner representing the native title party must be satisfied that the person or persons comprising ‘the applicant’, acting collectively, consent to the doing of the particular act.
The Tribunal is to carry out its functions in an informal and prompt way. The Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109 of the Act). No evidence contradicting that the necessary consent of ‘the applicant’ has been given, has been presented in this matter. As such, the Tribunal will accept evidence from the solicitors acting for the native title party, that the consent has been properly given, particularly also noting that the solicitors are, or were, when they represented the native title party, engaged by a NTRB (Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon CJ Sumner at [11]).
The inquiry findings
On the basis of the information contained in the application, affidavit and executed minute, I am satisfied that I can adequately determine the matter without holding a hearing (s 151(2)).
The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination (see Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner; Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Daniel O’Dea,).
On several occasions the Tribunal has found that the necessary consent has been given from this applicant group, despite the absence of Mr Ike Simpson’s signature (see Ike Simpson and Ors on behalf of Wajarri Yamatji/ Western Australia/ John Edward Telfer, NNTT WF10/17, [2010] NNTTA 164 (13 October 2010) Mr Daniel O’Dea; Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Mid-West Gold Operations Pty Ltd, NNTT WF10/24, [2010] NNTTA 166 (13 October 2010) Mr Daniel O’Dea; and Ike Simpson and Ors on behalf of Wajarri Yamatji People/Sinosteel Midwest Corporation Limited/State of Western Australia, NNTT WF10/35, [2010] NNTTA 185 (10 November 2010) Mr Daniel O’Dea).
In this matter I am satisfied that, based on the evidence provided to the Tribunal, the persons comprising ‘the applicant’, acting collectively, have consented to the acquisition of the land, the subject of this Future Act Determination Application, and consent to a determination in the terms sought.
Determination
By consent, the determination of the Tribunal is that the act, namely the acquisition of Part of Lot 11803 on Deposited Plan 28258 and shown as Lot 350 on Deposited Plan 40451 Volume 3138 Folio 008 (377.76 hectares); and Part of Lot 11803 on Deposited Plan 28258 and shown as Lot 351 on Deposited Plan 40451 Volume 3138 Folio 008 (38.72 hectares), may be done.
Helen Shurven
Member
2 March 2011
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