Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/ Rodney Laurence Bellotti, Rod Bellotti and Barry Neil Kayes
[2007] NNTTA 67
•14 August 2007
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/ Rodney Laurence Bellotti, Rod Bellotti and Barry Neil Kayes, [2007] NNTTA 67 (14 August 2007)
Application Nos: WF07/16 & WF07/17
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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Rodney Laurence Bellotti
Rod Bellotti and Barry Neil Kayes (grantee parties)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 14 August 2007
Catchwords: Native title — future act — application for determination for the grant of prospecting licences — executed ancillary agreement — logistical difficulties preclude execution of a 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, 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 Ms Toby Jones
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 Rodney Laurence Bellotti
grantee party:
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) of the following future acts being the grant of prospecting licences (“the proposed licences”) to Rodney Laurence Bellotti and Rod Bellotti and Barry Neil Kayes (‘the Grantee Party’). Included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s31 of the Act):
On 13 November 2002 notice was given for prospecting licence P09/429 to Rodney Laurence Bellotti. The area is 28.6ha and located 159km north easterly of Gascoyne Junction in the Shire of Upper Gascoyne.
On 26 June 2002 notice was given for prospecting licence P09/422 to Rod Bellotti and Barry Neil Kayes. The area is 199.84ha and located 124km easterly of Gascoyne Junction in the Shire of Upper Gascoyne.
Each of the proposed prospecting licences is 100% overlapped by the registered claim of the Wajarri Yamatji native title party (WC04/10, registered from 5 December 2005).
The native title parties in respect of these proceedings are:-
·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 (WC04/10)(‘Wajarri Yamatji native title party’)
On 2 July 2002 and 16 January 2003 objections to the inclusion of the expedited procedure statement in relation to prospecting licence P09/422 (WO02/380) and prospecting licence P09/429 (WO03/38) were lodged by the native title party. On 20 February 2003 for WO02/380 and on 17 March 2003 for WO03/38, the Tribunal made a determination by consent that the expedited procedure was not attracted, with the consequence that the normal negotiation procedure as in s 35 of the Act applied from these dates.
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 applications pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licences. (The Tribunal numbers are WF07/16 for P09/429 and WF07/17 for P09/422.) The Wajarri Yamatji native title party requested that the future act determination be made by consent.
Appended to each application is a minute of a consent determination identical in terms with the exception of the reference to the proposed licences and the names of the grantee parties, executed by Ms Raina Savage (at the time a Senior Regional Legal Officer for the Yamatji Land and Sea Council (‘YL&SC’)) for and on behalf of the Wajarri Yamatji native title party, by Mr Rodney Bellotti on behalf of the grantee party, and subsequently by Mr Trevor Creewel on 6 August 2007 (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 ....[the proposed licences] may be done’.
Paragraph 10 of the applications notes:
The native title party consents to the proposed act being done, that is the grant of ...[the proposed licences] 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).
The inquiry and findings in relation to the Wajarri Yamatji native title party
On 10 August, the Tribunal conducted a hearing. Ms Toby Jones from the Yamatji Land and Sea Council (“YL&SC”) appeared as counsel for the Wajarri Yamatji native title party; Mr Bellotti represented the grantee party and Mr Rod Wahl and Mr Dave Thomson appeared for the Government party. Ms Jones confirmed that a resolution was passed at the Wajarri Yamatji Working group meeting held on 28 March 2007 providing for the YL&SC to lodge s 35 consent determination applications on behalf of their clients. Consent was given in terms of the consent minute attached the to s 35 consent determination applications that the ‘act’ being the grant of the proposed licences may be done. Mr Bellotti for the grantee party and Mr Wahl and Mr Thomson for the Government party confirmed their consent to the determination in the terms provided.
On the basis of the information contained in the application and the confirmation provided by Ms Jones at the hearing I am satisfied that the Wajarri Yamatji native title party has consented to the doing of the act. The Tribunal is entitled to accept the evidence of YL&SC’s legal representative 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 difficulties in obtaining the signatures of the native title party applicant in the region represented by the YL&SC (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 prospecting licence P09/429 to Rodney Laurence Bellotti and prospecting licence P09/422 to Rod Bellotti and Barry Neil Kayes, may be done.
Member Daniel O’Dea
14 August 2007
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