Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/Giralia Resources Nl
[2008] NNTTA 15
•5 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/Giralia Resources NL, [2008] NNTTA 15 (5 February 2008)
Application Nos: WF07/42
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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Giralia Resources NL (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 5 February 2008
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 as a whole consent to the determination – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 109
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
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
Hearing date: 4 February 2008
Counsel for the
native title party: Mr Warwick Smith, Yamatji Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
Representative of the
grantee party: Mr Mike Joyce, Giralia Resources NL
REASONS FOR FUTURE ACT DETERMINATION
On 4 April 2001, 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 E51/916 (‘the proposed licence’) to Giralia Resources NL (‘the grantee party’). Included in the notice was a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).
On 30 July 2001, expedited procedure objection applications in relation to the proposed licence were lodged with the Tribunal by Kevin Peter Walley & Ors on behalf of Ngoonooru Wadjari ( WO01/179; native title determination application WC00/12) and Robin Boddington & Ors on behalf of Wajarri Elders (WO01/180; native title determination application WC01/3). On 8 March 2002, Deputy President Sumner determined that the expedited procedure did not apply to the proposed licence, thereby according the Ngoonooru Wadjari People and the Wajarri Elders full procedural rights in accordance with Part 2, Division 3, Subdivision P of the Act (the right to negotiate about the doing of the proposed act).
On 4 February 2005, the Federal Court ordered the combination of the Ngoonooru Wadjari and Wajarri Elders claims into the Wajarri Yamatji claim (native title determination application WC04/10), filed in the Federal Court on 21 December 2004.
The proposed licence comprises an area of 207.58 square kilometres, is situated 46 kilometres north westerly of Cue in the Shire of Cue and is entirely overlapped by the registered claim of the Wajarri Yamatji People (WC04/10, registered from 5 December 2005). The native title party in respect of these proceedings is therefore:
· 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 on behalf of the Wajarri Yamatji (WC04/10) (‘native title party’).
On 19 December 2007, being a date more than six months after the s 29 notice was given, the native title party made application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence. The 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, subsequently executed by Mr Michael Meegan (Principal Legal Officer, Yamatji Land and Sea Council (‘YLSC’)) for and on behalf of the native title party, Mr RM (Mike) Joyce, Director of the grantee party, and Mr Jeff O’Halloran (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 Exploration Licence 51/916 may be done’.
Paragraph 10 of the application includes the statement below:
The native title party consents to the proposed act being done, that is the grant of Exploration Licence 51/916 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licence 51/916 can therefore be granted in pursuance to the consent determination.’
It is further said that logistical difficulties preclude the execution of the ancillary agreement and State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act).
The native title party has also filed with the Tribunal the affidavit of Warwick Anthony Smith, a solicitor employed by YLSC, affirmed 23 January 2008. It is pertinently deposed:
‘….
4. The instructions that I receive on behalf of the Group [the native title party], are normally provided to me by a Working Group. Such Working Group has delegated authority to make decisions on behalf of the Group.
5. On 11 December, 2007 the Working Group met at Yalgoo Shire Hall. During the course of business dealt with on such day the Working Group passed a resolution in the following terms:
“Wajarri Yamatji Working group instructs the Claim Lawyer Warwick Smith, or the Principal Lawyer Michael Meegan, to sign a consent determination with Giralia Resources NL, consenting to the act being done, namely, the grant of Exploration Licence E51/916”.
6. The Working Group comprises fifteen elected representatives elected by the Group. Twelve of such representatives were present on 11th December, 2007 and the resolution referred to in paragraph 5 was passed without dissent.
7. In this case a consent determination is the most expeditious and least expensive way of finalising the grant of Exploration Licence E51/916.
8. On Sunday 18 November, 2007 a Community Meeting of the Group was held at PIA Community. I requested those Applicants who were present at the Community Meeting to stay behind at the conclusion of the meeting, for the purposes of signing the relevant document. Unfortunately all of those Applicants present did not sign the State Deed as I requested.
9. On Thursday 8 November, 2007 a Working Group Meeting was held at Yalgoo Shire Hall. I asked those Applicants who were present to stay behind at the conclusion of the meeting so that I could arrange for the signing of the relevant document. Unfortunately all of those Applicants present did not sign the State Deed as I requested.
10. The Applicants acting on behalf of the Group comprise seventeen in number. They reside at various locations within and outside the area the subject of the Native Title Claim.
11. One Applicant resides at Jigalong Community via Newman which is approximately 1,834 km (return) from the Head Office of the Land Council in Geraldton.
12. It would be very expensive and impracticable to arrange for a Land Council employee to travel to various locations within and outside the claim area for the purposes of having the State Deed signed.’
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).
The inquiry and findings
Following consideration of the evidence provided by the native title party in relation to authority to consent, I directed that supplementary evidence be provided specifically addressing the delegated authority under which it is said that the Wajarri Yamatji Working Group operate, and the reasons for failure of those applicants present at working group and communities meetings of 8 and 18 November 2007 to sign the State Deed. On 2 February 2008, a further affidavit of Warwick Anthony Smith was provided and I quote the pertinent paragraphs hereunder:
‘…
4. The delegated authority permitting the Working Group to make decisions on behalf of the Group, was confirmed by a Community Meeting resolution on 18 November, 2007. The resolution was in the following terms:
“Wajarri Yamatji Community instructs YLSC that the following members of the Community shall be its representatives on Wajarri Yamatji Working Group. Wajarri Yamatji under the supervision and control of the community authorises such people to deal with the day to day business of the Native Title claim subject to the ongoing supervision and directions of the claim group:
(a) Anthony Dann
(b) Charlie Snowball (Jnr)
(c) Tim Simpson
(d) Len Merry
(e) Trevor Wingo
(f) Lenard Merry
(g) Malcolm Ryan
(h) Janie Ronan
(i) Joyce Roberts
(j) Elizabeth Dooley
(k) Josie Green
(l) Madeline Wally
(m) Marjorie Mourambine
(n) Pam Mongoo
(o) Maitland Gilla
5. There were at least 88 Community Members present at the Community meeting who were involved in the voting process that gave rise to the abovementioned resolution.
…
9. The decision making process employed by the Community meeting and the Working Group has been a process which usually involves putting matters to a vote and decisions being based on a majority vote.
10. The Working Group used an informal system, which recognises a quorum. Pursuant to the system, a quorum comprises one half of elected working group members, plus one.
11. There are fifteen elected working group members. One half of fifteen members is seven and one half. Add one, and the quorum amounts to eight and one half. This is usually rounded out to nine.
12. On 11 December, 2007, there were twelve members of the Working Group present. Such working group members passed, without dissent, the resolution referred to in paragraphs 5 of my affidavit affirmed 23 January, 2008.
13. There are three members of the current Working Group who are applicants in respect of the Native Title Claim. These members are:
(a) Timothy Simpson
(b) Malcolm Ryan
(c) Pam Mongoo
14. Seven Applicants have signed the State Deed, on various days, including the 18 November, 2007 and 8 November, 2007. These Applicants comprise:
(a) Ron Simpson
(b) Charlie Snowball (Jnr)
(c) David Jones
(d) Timothy Simpson
(e) Malcolm Ryan
(f) Pam Mongoo
(g) Robyn Boddington
15. On two occasions namely, 18 November, 2007 and 8 November, 2007, I requested Applicants to sign the State Deed. There was no objection or dissent from those Applicants present, in terms of signing the State Deed.
…
18. In respect of both of the meetings referred to in paragraph 16 above, attendees including some Applicants had travelled long distances from their residences. Some Applicants were dependent on other persons for vehicular transport. The process of signing a State Deed normally requires them to wait in turn until those Applicants prior in time to them have completed signing a State Deed. If there are a number of people in the queue waiting to sign the documents there can be a time delay prior to the document being signed.
19. I assume that all the Applicants had not signed the Deed, by reason of some of the Applicants being anxious to leave the meeting and access vehicular transport at the conclusion of the meeting.
20. The Grantee Party is seeking the grant of Exploration License 51/916. I understand that historically the Working Group has made decisions regarding Exploration Licences, on delegated authority from the group.’
On 4 February 2008, the Tribunal conducted a hearing attended by Mr Warwick Smith, appearing as counsel for the native title party, Mr Mike Joyce representing the grantee party, and Mr Rod Wahl and Ms Janice Goodwin appearing for the Government party. Mr Smith confirmed the processes set out in his affidavit and his belief that YLSC was authorised to pursue a s 35 consent determination application on behalf of its clients in the circumstances arising in this matter, and that as a result YLSC were authorised to consent to a determination that the act may be done. The grantee and Government parties each confirmed their acceptance of the validity of the processes outlined in Mr Smith’s affidavits and their consent to the determination in the terms provided.
On the basis of the information contained in the application, the subsequent affidavits of Mr Smith and the confirmation provided by Mr Smith at the hearing, I am satisfied that the native title party has consented to the doing of the act. The Tribunal is entitled to accept the evidence of YLSC’s legal representative on whether the appropriate consent has been given by the native title party and there is nothing to suggest the contrary. The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants for this and other native title claims in the region as a legitimate basis for seeking a consent determination (see Gnulli People/Rodney Laurence Bellotti/Western Australia, NNTT WF06/8, [2006] NNTTA 32 (5 April 2006), Daniel O’Dea (‘Bellotti’); 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). I adopt Member O’Dea’s findings from paragraph [12] of Bellotti in relation to the responsibilities of the YLSC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. Taking those findings into account, I accept the advice of the YLSC that appropriate consent has been given to the determination by the native title party.
Notwithstanding my decision in this matter, I observe that it would assist the Tribunal in its deliberations in similar future matters if the representative for the native title party was able to provide specific indication of which of those persons jointly comprising the applicant have failed to sign the State Deed, and for what reason. It is the Tribunal’s role to assess whether due process has been followed in gaining consent to both the doing of the act and the giving of authority to the bringing of a consent determination application, and in doing so ensuring that all parties, and not just the native title party, are protected in the making of the determination.
Determination
By consent, the determination of the Tribunal is that the act, namely the grant of exploration licence E51/916 to Giralia Resources NL, may be done.
John Catlin
Member
5 February 2008
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