Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Paul Winston Askins
[2009] NNTTA 81
•31 July 2009
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Paul Winston Askins [2009] NNTTA 81 (31 July 2009)
Application No: WF09/11
IN THE MATTER of the Native Title Act1993 (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 (Government party)
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Paul Winston Askins (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 31 July 2009
Catchwords: Native title – future act – application for determination for the grant of exploration licence – logistical difficulties preclude execution of ancillary agreement and State Deed – native title party consents to the determination - consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151(2), 136A(5)
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member
Hearing date: Determined on the papers
Representative of the
native title party: Mr Matthew Punch, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Mines and Petroleum
grantee party: Mr Paul Winston Askins
REASONS FOR FUTURE ACT DETERMINATION
On 30 August 2006, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act namely the grant of exploration licences E09/1299 and E09/1300 (‘the proposed licences’) under the Mining Act1978 (WA) to Paul Winston Askins (‘the grantee party’).
On 25 October 2006, the Government party gave notice under s29 of the Act of a future act namely the grant of exploration licence E09/1324 (‘the proposed licence’) under the Mining Act 1978 (WA) to Paul Winston Askins (‘the grantee party’).
The proposed licences E09/1299, E09/1300 and E09/1324 comprise of an area of 174.41 square kilometres, 48.87 square kilometres and 306.12 square kilometres and situated 174 kilometres north westerly of Cue, 167 kilometres north westerly of Yalgoo and 151 kilometres north easterly of Kalbarri respectively in the Shire of Murchison. The proposed licences are entirely overlapped by the registered native title claim of the Wajarri Yamatji (WC04/10) – registered from 5 December 2005.
Between 30 May 2008 and 20 March 2009 Mr Alan Toogood facilitated mediation assistance under s 31(3) of the Act in relation to the proposed licences. During that process, parties agreed that I could be appointed as the Member to determine the s 35 application (s 136A(5)). On or about 3 November 2008, an agreement was reached between Paul Winston Askins and the Wajarri Yamatji people in relation to its grant.
On 23 June 2009, 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 in relation to the proposed licences. The native title party requested that the future act determination be made by consent.
Appended to the application was a minute of a consent determination in the following terms, executed by Mr Matthew Punch, Claim Lawyer, Yamatji Marlpa Aboriginal Corporation (‘YMAC’) for and on behalf of the native title 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 Licences 09/1299, 09/1300 and E09/1324 may be done.’
The minute of consent determination was subsequently executed by Paul Winston Askins, the grantee party and Rod Wahl, State Solicitor’s Office, on behalf of the Government party.
Appended to the application is an affidavit of Matthew Francis Punch in support of the native title party’s application for a future act determination, affirmed 25 June 2009. Paragraphs 9 to 10 of the application also includes the statement below:
‘At that meeting, I informed the Working Group that a Heritage Agreement had been agreed to with the Grantee in relation to tenements E09/1299, E09/1300 and E09/1324.
The Heritage Agreement reflected and accorded with standing instructions the Working Group provides YLSC in relation to dealing with tenements in the future act process. The Heritage Agreement provides for the protection of the Claimant Group’s native title rights and interests in the tenement areas, and aims to lessen any impact to such native title rights and interests that could occur upon grant of the tenements.’
It is further said that logistical difficulties preclude the execution of the ancillary agreement and State Deed (being an agreement of the kind contemplated by s 31(1)(b) of the Act).
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/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President).
The Inquiry Findings
On 1 July 2009 all parties have verbally agreed that the determination could be made on the papers, amongst which included an affidavit of the native title party’s representative attesting to its authority to bring a consent determination application on behalf of the native title with respect to the proposed licences. I am satisfied that I can adequately determine the matter in this manner (s 151(2)). The YMAC has provided the Tribunal with the affidavit of Matthew Francis Punch, sworn on 25 June 2009. The affidavit refers to the proposed licences and sets out the basis on which the YMAC believes it is authorised to bring a consent determination application on behalf of the native title party. Mr Punch attests:
‘I Matthew Francis Punch of 15/141 August Street, Geraldton in the State of Western Australia, Lawyer affirm as follows:
1. I am a lawyer employed by Yamatji Land and Sea Council (‘YLSC’), a service division of Yamatji Marlpa Aboriginal Corporation (“YMAC”).
2. YLSC is the Native Title Representative Body which provides legal and anthropological representation and services to the Wajarri Yamatji native title determination application (WC04/10) (‘Claimant Group’).
3. I have provided legal representation to the Claimant Group, which includes this matter concerning Exploration Licence applications 09/1299, 09/1300 and 09/1324.
4. Decisions of the Native Title Party with respect to future act matters that arise in relation to the Wajarri Yamatji native title determination application are made by resolution of the Wajarri Yamatji Working Group (‘Working Group’), which is representative of the wider Claimant Group.
5. Decisions of the Working Group are carried by a simple majority vote (i.e. 50% plus one) at working group meetings. The members of the working group were nominated and authorised to make such decisions at a meeting of the Wajarri Yamatji Claimant Group on 18 November 2007.
6. The file I have viewed records that there were at least 88 members of the Wajarri Yamatji Claimant Group present at the above mentioned meeting. The file records the following resolution as affirmed by the Claimant Group:
7. The primary function of the Working Group is to provide formal instructions to YLSC on behalf of the Native Title Party in relation to native title related matters and to share information with, and report back to, the Claimant Group. The Working Group provides instructions to YLSC and receives legal, technical, and secretarial support from YLSC.
8. I attended a Wajarri Yamatji Working Group meeting on March 12 2009 at Yalgoo Shire Hall.
9. At that meeting, I informed the Working Group that a Heritage Agreement had been agreed to with the Grantee in relation to tenements E09/1299, E09/1300 and E09/1324.
10. The Heritage Agreement reflected and accorded with standing instructions to the Working Group provides YLSC in relation to dealing with tenements in the future act process. The Heritage Agreement provides for the protection of the Claimant Group’s native title rights and interests in the tenement areas, and aims to lessen any impact to such native title rights and interests that could occur upon grant of the tenements.
11. At this Working Group meeting, I was provided with instructions by resolution to finalise the grant of the tenements by the way of consent determination. The relevant parts of the resolution reads:
Resolution 20090312.7:
The Wajarri Working Group instructs YLSC that in respect of:
· Paul Winston Askins tenements E09/1299, E09/1300, E09/1324 and E59/1258
Provided these heritage agreements are duly executed, the Working Group authorises the moving and lodging of consent determination applications for these tenements.
Moved: Malcolm Ryan Seconded: Tim Simpson; all in favour, resolution passed.
12. The Heritage Agreement concerning the tenements the subject of this application was executed on 31 March 2009.
Reasons for Consent Determination Application
13. The Native Title Party and Grantee have reached agreement to allow the tenements to be granted by consent, subject to the terms of the Heritage Agreement executed by both parties.
14. I have not been informed of, nor do I have any knowledge of, any person who is a member of the Native Title party Applicant who refuses or does not wish to sign a State Deed to allow these tenements to be granted.
15. However, one current Applicant to the Wajarri Yamatji native title determination application is deceased. This could create difficulties for the grant of the tenements by State Deed.
16. I was instructed by my clients at the Working Group meeting of 12 March 2009 to proceed to a consent determination to allow the grant of these tenements.
17. The Native Title Party applies for this consent determination because it recognises the extraordinary expenses it would cost YLSC to have staff travel to see all members of the Native Title Party Applicant in order to have a State Deed executed.
18. In particular, the Native Title Party notes that:
(a)One Applicant mainly resides at Jigalong Aboriginal Community, a return trip of approximately 2210km from the Geraldton Office;
(b)A number of Applicants reside at Burringurrah Aboriginal Community, a return trip of approximately 1738kms from the Geraldton Office;
(c)One Applicant, who is often difficult to locate, works and resides largely (to the best of my knowledge) in Karratha, a return trip of approximately 2222km from the Geraldton Office;
(d)A number of Applicants reside in Meekatharra, a return trip of approximately 1078km from the Geraldton Office.
19. The Native Title Party also notes that the Wajarri Yamatji native title determination application is approximately 5-6 times the size of Belgium. I have also been informed that the Wajarri Yamatji native title determination application may be the largest current native title claim in Australia. As a number of Applicants live on stations within the claim area, it would also require return trips to Stations to have State Deeds executed.
20. As a staff member at YLSC, a non-profit Aboriginal Corporation, I believe the costs that would be incurred by YLSC in seeking to have a State Deed executed in this matter are prohibitive, and the staff time that would be lost to such travel would be extremely detrimental to the ongoing representation of native title claims in the Geraldton region.
21. I also believe the delays that would be caused in finalising this matter – due to the extremely long distances YLSC staff or Applicants are required to travel to execute a State Deed – are prohibitive and unnecessary to the Grantee and State as parties to this matter.
22. YLSC is satisfied that the Claimant Group collectively consent to the determination, as evidenced by the resolution of the Working Group passed at the said Working Group meeting and described in paragraph 11 of this affidavit.’
The Tribunal is entitled to accept the evidence of YMAC’s legal representative on whether appropriate consent has been given by the native title party and there is nothing in the papers before me to suggest the contrary. The Tribunal has previously accepted the difficulties in obtaining signatures of named applicants for other native title claims in the region as a legitimate basis for seeking a consent determination (for example, Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member and Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member). I adopt the findings in those matters in relation to these proceedings.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licences E09/1299, E09/1300 and E09/1324 to Paul Winston Askins, may be done.
John Catlin
Member
31 July 2009
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