Ike Simpson and Others on behalf of the Wajarri Yamatji/Western Australia/Murchison Mining Co. Pty Ltd
[2010] NNTTA 161
•6 October 2010
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson and Others on behalf of the Wajarri Yamatji/Western Australia/Murchison Mining Co. Pty Ltd, [2010] NNTTA 161 (6 October 2010)
Application No: WF10/20
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 Others on behalf of the Wajarri Yamatji (WC04/10) (Applicant/native title party)
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The State of Western Australia (Government party)
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Murchison Mining Co. Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Member Daniel O’Dea
Place: Perth
Date: 6 October 2010
Catchwords: Native title – future act – application for determination for the grant of miscellaneous licence – Heritage Protection Agreement – logistical difficulties in the execution of the State Deed – native title party 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] 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
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: Determined on the papers
Representatives:
Native Title Party Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation
Mr Akmal Raea Khan, Yamatji Marlpa Aboriginal Corporation
Government Party Mr Rod Wahl, State Solicitor’s Office
Mr Dave Thomson, Department of Mines and Petroleum
Grantee Party Mr Ronald Pawson, Murchison Mining Co. Pty Ltd
REASONS FOR FUTURE ACT DETERMINATION
Background
On 2 November 2005, 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 a miscellaneous licence 20/43 (the proposed lease) under the Mining Act 1978 (WA) to Murchison Mining Co. Pty Ltd (the grantee party).
The native title party, with respect of this proceeding, is Ike Simpson and Others on behalf of Wajarri Yamatji (WC04/10 – registered from 5 December 2005) (the native title party).
The proposed lease covers an area of 6.43 hectares located 55 kilometres north westerly of Cue in the Shire of Cue. The proposed lease is 100 per cent within the registered claim of the native title party.
On 25 August 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 future act determination under s 38 of the Act. The native title party requested that the future act determination be made by consent on the basis that there are internal group politics and logistical difficulties in arranging execution of the State Deed.
Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Mr Akmal Raea Khan on behalf of the native title party and subsequently executed in counterparts by, Mr Ronald Pawson on behalf of the grantee party, and Mr Rod Wahl, 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 Miscellaneous Licence 20/43 may be done.
The Tribunal has power to make a determination with the consent of the parties. It will normally be appropriate for the Tribunal to make a consent determination where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of their consent. If necessary, 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 but I am satisfied this matter can be adequately determined on the papers.
Paragraphs 18 to 22 of the affidavit of Ms Lisa Maree Randall, solicitor for the native title party, affirmed on 28 September 2010 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 within the last six (6) months YMAC has organised for the Applicant and either his son 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 with the aforementioned Applicant and his son or daughter has not taken place.
22.Importantly, Mr Simpson has however signed the Mining Agreement relating to the Tenements signifying his consent.
23.The Native Title Party hereby applies for a consent determination as the current on-going circumstances may cause detriment to the commercial interests of the Wajarri Yamatji claim.
The affidavit of Ms Randall deposes to the instructions she received to proceed with a consent determination which were obtained from the native title party at a working group meeting held in Yalgoo on 20 August 2010. 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. At paragraph 39 of her affidavit, Ms Randall states:
YMAC is satisfied that the Native Title Party and the Applicants collectively consent to the determination, as evidenced by the resolution of the Working Group passed at the recent Yalgoo Meeting referred to in paragraph 34 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. Therefore, day-to-day decision-making may be conferred upon a working group. However, the statutory framework of the Act requires that the person or persons comprising the applicant alone are authorised to bring a native title application and deal with all matters in relation to it (s 61(2) and s 62A). Part 2 of Division 3 of the Act, which deals with future acts, specifies that the native title party is either a registered native title body corporate, where land has been determined, or the registered native title claimant, if it is still subject to claim (s 29(2)). The Registered Native Title Claimant is defined in s 253 of the Act to mean:
. . . 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.
Consequently, 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 one confined to the consent of the applicant. The views of any other internally constituted group are extraneous to that question. The legal practitioner representing the group must be satisfied that the person or persons comprising the applicant acting collectively, in fact, consent to the doing of the particular act, the subject of the application. It would be preferable if this information was conveyed to the Tribunal in concise and decisive terms (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).
The inquiry findings
On the basis of the information contained in the application, affidavit and executed minute, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
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, specifically in relation to the current native title party (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).
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 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 Miscellaneous Licence 20/43 to Murchison Mining Co. Pty Ltd, may be done.
Daniel O’Dea
Member
6 October 2010
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