Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd
[2007] NNTTA 83
•17 September 2007
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, [2007] NNTTA 83 (17 September 2007)
Application Nos: WF07/15
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/Wajarri Yamatji native title party)
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Mr Ronald Crowe and Others on behalf of Gnulli (WC97/28)(Gnulli native title party)
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The State of Western Australia (Government party)
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Aztec Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 17 September 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licence – executed ancillary agreement – logistical difficulties preclude execution of a 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, 41A
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Gnulli People/Rodney Laurence Bellotti/Western Australia, NNTT WF06/8, [2006] NNTTA 32 (5 April 2006), Daniel O’Dea
Hearing date: 10 August 2007
Representative of the Mr Greg Young
Wajarri Yamatji Yamatji Land and Sea Council
native title party:
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Industry and Resources
Representative of the Mr Daniel Matich
grantee party: Aztec Resources Ltd
REASONS FOR FUTURE ACT DETERMINATION
On the 20 April 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 exploration licence E09/1054 (‘the proposed licence’) to Aztec Resources Ltd (‘the grantee party’).
The proposed licence is 90.58 square kilometres located 155 kilometres northeasterly of Gascoyne Junction in the Shire of Upper Gascoyne, and is 58.17 per cent overlapped by the registered claim of the Gnulli (WC97/28, registered from 14 April 1997) and 41.83 per cent overlapped by the registered claim of the Wajarri Yamatji (WC04/10, registered from 5 December 2005). At the time the s29 notice was given, the Wajarri Elders native title claim (WC01/3) was the registered claim that overlapped the proposed licence at 41.83 per cent. On 4 February 2005 an order to combine the Wajarri Elders claim into the Wajarri Yamatji claim was made. Upon the registration of the Wajarri Yamatji claim on 5 December 2005, the Wajarri Elders claim was removed from the Register of Native Title Claims.
Therefore the native title parties in respect of these proceedings are:-
·Mr Laurence Cooyou, Mr Ronald Crowe, Mr Sydney Dale, Ms Gwen Cooyou, Ms Mary Franklin, Ms Ruby McIntosh, Ms Sharon Crowe on behalf of Gnulli (WC97/28)(‘Gnulli native title party’)
·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, Pam Mongoo on behalf of the Wajarri Yamatji People (WC04/10)(‘Wajarri Yamatji native title party’)
On 9 July 2007 a State Deed for the proposed licence was lodged with the Tribunal by the Government party in accordance with s 41A of the Act, dated 9 July 2007 and fully executed by the Gnulli native title party, the Government party and the grantee party.
On 24 July 2007, being a date more than six months after the s 29 notice was given, the Wajarri Yamatji 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 licence. The Wajarri Yamatji native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, executed by Ms Raina Savage (previous Senior Regional Legal Officer of the Yamatji Land and Sea Council (‘YLSC’)) on behalf of the Wajarri Yamatji native title party, Mr Daniel Matich on behalf of the grantee party, and subsequently by Mr Trevor Creewel (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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 09/1054 may be done’
Paragraph 10 of the application notes:
“The native title party consents to the proposed act being done, that is the grant of Exploration Licence 09/1054 the subject of this consent determination. The grantee party and the native title party confirm they have entered into a Heritage Agreement and the grantee party agrees to abide by the provisions therein.”
The Tribunal has the 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 [2001] NNTTA 50; (2001) 164 FLR 361).
Findings in relation to the Gnulli native title party
On the basis that a State Deed for the proposed licence dated 9 July 2007 has been lodged with the Tribunal, fully executed by the Gnulli native title party, the Government party and the grantee party, I am satisfied the Gnulli native title party consent to the doing of the act.
The inquiry and findings in relation to the Wajarri Yamatji native title party
On 10 August 2007 the Tribunal conducted a preliminary conference at which the grantee party, Government party and Wajarri Yamatji native title party were represented. Mr Greg Young, solicitor of the Yamatji Land and Sea Council (‘YLSC’), the representative body for the Wajarri Yamatji native title party, requested an adjournment in order to confirm that the Wajarri Yamatji had instructed the YLSC to consent to the determination, on the basis that Ms Raina Savage was no longer a solicitor at the YLSC and future act officer Ms Anne Marie Hagan was on annual leave. With agreement from parties, the matter was adjourned until after the next Wajarri Yamatji working group meeting scheduled for 4 September 2007. Parties also agreed that should the YLSC confirm in writing the Wajarri Yamatji native title party’s consent before or after that date, the matter could proceed on the papers, that is, without a further hearing.
On 13 September 2007, Ms Anne Marie Hagan advised the Tribunal and parties via email the following:
“With regards to the finalisation of tenement application E09/1054 by Aztec Resources by a consent determination, please note that instructions were received from Raina Savage (the Senior legal officer at the time the CD [minute of a consent determination] was signed) advising that a consent determination should be sought as there are substantial geographical difficulties in attaining the signatures of all applicants on a state deed document. These instructions were provided to myself, by Raina, as standing instructions provided by the Wajarri Yamatji working group.”
On the basis of the information contained in the application which includes the minute of a consent determination signed by YLSC ex-Regional Legal Officer and the subsequent confirmation provided by Ms Hagan, I am satisfied that the Wajarri Yamatji native title party has consented to the doing of the act. As the native title representative body for the Geraldton region and for the Wajarri Yamatji native title party, the Tribunal is entitled to accept the evidence of the YLSC on whether the appropriate consent has been given by the Wajarri Yamatji native title party and there is nothing to suggest the contrary. The Tribunal has previously accepted the logistical or geographical difficulties in obtaining the signatures of the native title party applicant in the region represented by the YLSC (see Gnulli People/Rodney Laurence Bellotti/Western Australia, NNTT WF06/8, [2006] NNTTA 32 (5 April 2006), Daniel O’Dea.) As a consequence, I am satisfied that the Wajarri Yamatji native title party has consented to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E09/1054 to Aztec Resources Ltd, may be done.
Daniel O’Dea
Member
17 September 2007
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