Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd

[2004] NNTTA 85

NATIONAL NATIVE TITLE TRIBUNAL

Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, [2004] NNTTA 85 (15 September 2004)

Application No:        WF04/22

IN THE MATTER of the Native Title Act 1993 (Cth)

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Innawonga Bunjima Niapaili People (WC96/61) (Applicant/1^st native title party)

- and -

Eva J Connors on behalf of Eastern Guruma People (WC97/89) (2^nd native title party)

- and -

The State of Western Australia (Government party)

- and -

Fortescue Resources Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  15 September 2004

Catchwords:  Native title – future act – application for determination for the grant of exploration licences – consent determination that the act may be done

Legislation:Native Title Act 1993 (Cth), ss 35, 38, 203B(4), 203BB(1)(b), 203BC(1)(a), 203BC(1)(b), 203BC(2)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner

Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner

Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner

Hearing date: 14 September 2004

Counsel for the
Innawonga Bunjima
Niapaili native title party:     Ms Helen Lawrence, Pilbara Native Title Service

Representative of the          
Innawonga Bunjima
Niapaili native title party:     Mr Sean O’Reardon, Pilbara Native Title Service

Solicitor for
Eastern Guruma
native title party:  Mr Oliver Wijetellake

Representative of the             

grantee party:  Mr Graeme Drew, AusQuest Pty Ltd

Representative of the             Mr Rod Wahl, State Solicitor’s Office

Government party:                Mr David Crabtree and Ms Paola O’Neill, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 18 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 Licences E47/1022 (222.12 square kilometres, 24 kilometres northerly of Paraburdoo in the Shire of Ashburton), E47/1023 (220.61 square kilometres, 32 kilometres north-westerly of Paraburdoo in the Shire of Ashburton) and E47/1024 (220.68 square kilometres, 32 kilometres northerly of Paraburdoo in the Shire of Ashburton) (‘the proposed exploration licences’), under the Mining Act 1978 (WA) to Fortescue Resources Pty Ltd.

2. There are two native title parties in respect of these proceedings:

• Nicholas Cooke, Alice Smith, Amy Dhu, Bonny Tucker, Lena Long, Sheila Sampie and name withheld for cultural reasons on behalf of Innawonga, Bunjima & Niapaili People (WC96/61) (‘The Innawonga Bunjima and Niapaili native title party’).

The Tribunal notes that although this claim has been amended to remove some of the named persons (leaving only Mr Nicholas Cooke and Ms Alice Smith as named applicants) because the extent of the claim has been reduced to exclude the Niapaili claimants, the amended claim has not been subjected to the registration test required under the Act. The right to negotiate is accorded to a registered native title claimant, which means the persons whose names appear on the Register of Native Title Claims as the applicant. In this case all those persons named above remain on the Register and comprise the native title party. Ms Lena Long is deceased and her name has been removed by the Federal Court from the persons comprising the applicant but this is not yet reflected in changes to the Register.

• Nelson Hughes, Peter Stevens and Eva Connors on behalf of Eastern Guruma People (WC97/89) (‘The Eastern Guruma native title party’)

1. On 18 August 2004, being a date more than six months after the s 29 notice was given, the Pilbara Native Title Service on behalf of the Innawonga, Bunjima and Niapaili native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. The applicant sought a determination that the act be done by consent. The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) is the designated representative body under the Act for the Innawonga, Bunjima and Niapaili claim and has represented the native title party in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service (‘PNTS’).

2. 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.  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).

Background facts

1. As a consequence of negotiations between the parties the following facts are established:

• Each of the persons comprising the applicant, registered native title claimant and Eastern Guruma native title party (WC97/89) have signed a State Deed agreeing to the grant of the proposed licences to Fortescue Resources Pty Ltd.  This Deed has also been signed by the other negotiation parties (the Government and grantee party) and was lodged with the Tribunal on 12 August 2004.

• The Innawonga, Bunjima and Niapaili native title party (WC96/61) reached agreement with the grantee party in relation to the grant of the proposed licences at the Innawonga, Bunjima and Niapaili working group meeting on 14 July 2004 and, via their representative, have executed a ‘Contract for Service in Relation to Exploration’. The s 35 determination application states that there are “logistical difficulties”, the nature of which are not revealed, in obtaining all signatures on a State Deed in a timely manner.

1. Because each of the persons comprising the applicant, registered native title claimant and Innawonga, Bunjima and Niapaili native title party has not signed the State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and each of the native title parties)) this matter cannot be concluded by way of a s 31 agreement. The State Deed signed by the Government party, grantee party and Eastern Guruma native title party, even though lodged with the Tribunal as required by s 41A(1)(a) of the Act, does not on its own comprise an agreement of the kind mentioned in para 31(1)(b) of the Act as such an agreement must be between the Government party, grantee party and each native title party. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.

Findings relating to the Eastern Guruma native title party

1. On the basis that the Eastern Guruma native title party has executed a State Deed permitting the grant of the proposed licences and their solicitor, Mr Oliver Wijetillake, has advised that the Eastern Guruma native title party understand the significance of the State Deed and consent to a determination that the future act may be done, I find that the Eastern Guruma native title party consent to such a determination.

Findings in relation the Innawonga, Bunjima and Niapaili native title party

1. On 14 September 2004, the Tribunal conducted a hearing. Ms Helen Lawrence (of counsel) and Mr Sean O’Reardon represented the Innawonga, Bunjima and Niapaili native title party, Mr Graeme Drew of AusQuest Pty Ltd represented the grantee party and Mr Rod Wahl, Mr David Crabtree and Ms Paola O’Neill appeared for the Government party.  At the hearing these persons confirmed their consent to the future act determination in the terms sought. 

2. The s 35 determination application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’, which is written in the following terms and was subsequently executed by Ms Lawrence, Mr Philip Harrison, (the Director of the grantee party), and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the native title party, grantee party and Government party respectively.

‘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 Licences 47/1022, 47/1023 & 47/1024 may be done, subject to the terms of the Contract for Services in relation to exploration, executed by the Native Title Party and the Grantee Party on the 9^th August 2004.’

1. The s 35 determination application appends a copy of the agreement dated 9 August 2004 between the grantee party, AusQuest Ltd, and the Innawonga, Bunjima and Niapaili native title applicant, executed by Mr Harrison, Mr Drew, and Mr Simon Hawkins, Executive Director of Yamatji. The agreement is entitled ‘Contract for Services in Relation to Exploration’ and provides the conditions for conduct of a heritage survey.

2. At the hearing, Ms Lawrence, counsel for the native title party, elaborated on the logistical difficulties referred to in the application.  She said that Mr Nicholas Cooke was unwell and Ms Alice Smith away visiting relatives at relevant times.  She says that her instructions to consent to a determination came from a full community meeting of the claimant group held at Tom Price on 14 July 2004.

3. As the designated representative body under the Act, Yamatji has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of Yamatji’s representatives on whether the appropriate consent has been given by the native title party.

4. I have examined the terms of the ‘Contract for Services in Relation to Exploration’ and do not consider it contains any conditions which are beyond the power of the Tribunal to impose (see discussion in Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner). Accordingly, a determination in the terms sought, being ‘subject to’ the agreement, is appropriate.

5. I am satisfied that the claimant group as a whole consents to the determination sought.  The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20] and Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner at [13]-[28]).

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licences E47/1022, E47/1023 and E47/1024 to Fortescue Resources Pty Ltd, may be done subject, in the case of the Innawonga Bunjima and Niapaili native title party, to the ‘Contract for Services in Relation to Exploration’ executed by Fortescue Resources Pty Ltd and the Innawonga Bunjima and Niapaili native title applicant on 9 August 2004.

Hon C J Sumner
Deputy President
15 September 2004