Ike Simpson and Others on behalf of the Wajarri Yamatji People/Big Bell Gold Operations Pty Ltd/State of Western Australia
[2010] NNTTA 58
•30 April 2010
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson and Others on behalf of the Wajarri Yamatji People/Big Bell Gold Operations Pty Ltd/State of Western Australia, [2010] NNTTA 58 (30 April 2010)
Application No: WF10/3
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Ike Simpson and Others on behalf of the Wajarri Yamatji People (WC04/10)
(Applicant/native title party)
- and -
Big Bell Gold Operations Pty Ltd (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 30 April 2010
Catchwords: Native title - future act - application for determination for the grant of prospecting 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 Act1993 (Cth), ss. 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) 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
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: n/a
Representative for the Mr Daniel Jacobs
native title party: Yamatji Marlpa Aboriginal Corporation
Representative for the Mr Steve Milner
grantee party: Austwide Mining Title Management Pty Ltd
Representatives for the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Thomson, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 28 January 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of prospecting licence 20/1842 (‘the proposed tenement’) under the Mining Act 1978 (WA) to Big Bell Gold Operations Pty Ltd (‘the grantee party’).
The proposed tenement comprises an area of 139.42 hectares located approximately 3 kilometres west of Cue, within the Shire of Cue. It is 100 per cent overlapped by the registered claim of the Wajarri Yamatji People (WC04/10 – registered from 5 December 2005).
The native title party with respect to this proceeding is Ike Simpson and Others on behalf of the Wajarri Yamatji People.
On 20 April 2010, 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 determination under s 38 of the Act in relation to the proposed tenement ('the application') and requested that the future act determination be made by consent.
Appended to the application is a minute of consent determination in the following terms executed by Daniel Jacobs on behalf of the native title party. The minute was later executed by Jeffrey O’Halloran, a Senior Adviser of the State Solicitor’s Office, on behalf of the Government party and by Steve Milner, an authorised agent of Big Bell Gold Operations Pty Ltd, on behalf of the grantee 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 Act1993.
2.The Government Party, the Native Title Party 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 Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Prospecting Licence 20/1842 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 the consent. Yamatji Land and Sea Council (‘YLSC’) 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] NNTTA 50; (2001) 164 FLR 361).
Paragraphs 13 to 22 of the affidavit of Mr Daniel Paul Jacobs, Lawyer at YLSC, affirmed on 26 March 2010 application explain why a consent determination is sought:
’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 Application who refuses to 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 am informed by the minutes of the Working Group meeting of 21 October 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 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. 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 the native title claims in the Geraldton region.
21.One of our two community Liaison Officers is on annual leave for 6 weeks, leaving us with one Community Liaison Officer for all 11 claims in the Yamatji region.
22.I also believe that 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.’
The affidavit of Mr Jacobs deposes to the instructions he received to proceed with a consent determination which were obtained from the native title party at a working party meeting held on 21 October 2009. An extract of the native title party resolution is included within Mr Jacobs’ affidavit. The Tribunal is entitled to accept the evidence of YLSC’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 YLSC has applied for a consent determination in order to fulfil their instructions from the native title party as the YLSC has stated that logistical difficulties have prevented signatures of all persons comprising the native title party being gathered on a State Deed. The Government party will be unable to grant the proposed tenement until a State Deed is signed by all relevant signatories or a determination pursuant to section 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed tenement) may be done.
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 logistical difficulties in obtaining the signatures of all persons comprising the native title party applicant on the basis of an affidavit from its legal representative (see 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).
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 Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed tenement and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence 20/1842 to Big Bell Gold Operations Pty Ltd, may be done.
Daniel O'Dea
Member
30 April 2010
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