Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia - [2006] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, [2006] NNTTA 69 (8 June 2006)

Application No: WF05/16

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

Arthur Dimer, Jack Schultz, John W Graham & Others on behalf of the Ngadju People (WC99/2 ) (applicant/native title party)

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Pangolin Resources Pty Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: Mr Dan O’Dea, Tribunal Member

Place: Perth
Date: 8 June 2006

Catchwords: Native title — future act — application for determination for the grant of exploration licence — deceased registered native title claimants — native title party removed from the application — 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, 35, 38,
Mining Act 1978 (WA)

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

Angus Abdullah and Others on behalf of Njamal/Dudley Wabbie and Others on behalf of Palyku/Tyson Resources Pty Ltd/Wedgetail Exploration NL/State of Western Australia, NNTT WF06/7 [2006] NNTTA 27 (24 March 2006), Hon C J Sumner.
Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner
Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006), Member Sosso

Hearing dates: 21 December 2005; 13 March 2006; 19 April 2006; 12 May 2006; 29 May 2006

Counsel for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council

Representative of the
grantee party: Ms Grace Tan, Central Tenement Services

Counsel for the

Government party: Mr Rod Wahl, Mr Travis McLeod and Mr Trevor Creewel, State Solicitor’s Office

Representative of the

Government party: Ms Faye Mitchell and Ms Janice Goodwin, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

On 12 January 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 63/875 (‘the proposed licence’) under the Mining Act 1978 (WA) to Pangolin Resources Pty Ltd (‘the grantee party’).
The native title parties in respect of these proceedings are:
Arthur Dimer, Betty Bullen, Georgina Schultz, Jack Schultz, John Walter Graham, Katie Ray, Mabel Wilson, Maureen Young, Ollan Dimer and Sonny Graham on behalf of the Ngadju People (WC99/2 – registered from 28 September 2000) (‘the Ngadju native title party’).
James Dimer (deceased) and Malcolm Bullen (deceased) on behalf of the Esperance Nyungar native title claimants (WC96/64 – registered 16 July 1999) (‘the Esperance Nyungar native title party’).
The area of the proposed licence is 158.5km², located 14km north westerly of Salmon Gums, in the Shire of Esperance. The proposed licence entirely overlaps the Ngadju and Esperance Nyungar native title claims. No other native title determination applications will be affected by the exploration licence.
On 7 July 2005, the Department of Industry and Resources requested mediation under s 31 (3) of the Act in relation to exploration licence 63/875. At the first mediation meeting on 22 July 2005, parties advised that an in principle agreement had been reached. On that basis, the matters were referred to the Tribunal’s settlement list. The mediation remained in the settlement list whilst the native title party representative arranged for the Ngadju and Esperance Nyungar native title parties to execute an ancillary agreement and State Deed. During a settlement list meeting on 18 November 2005, the native title party representative advised that a s.35 future act determination application would be lodged on behalf of the Esperance Nyungar native title party. It became apparent at a settlement list meeting on 25 November 2005 that it was not possible to obtain all the required signatures from the Ngadju native title party for the purpose of a State Deed. The mediations remained in the settlement list pending the lodgement of a s.35 future act determination application.
On 8 December 2005, being a date more than six months after the s.29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) 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 GLSC is the representative body for native title claimants in the Goldfields region pursuant to s 203B of the Act and is instructed to act on behalf of the Ngadju People and the Esperance Nyungar People. Paragraph 10 of the application asserts that the grantee and native title parties have reached agreement about the doing of the act and consent to the future act determination. It is also stated that there are logistical difficulties precluding the native title parties executing a State Deed. The application further states that at a meeting of the elected negotiation team of the Ngadju People held on 23 November 2005 it was agreed that the GLSC sign a consent determination on behalf of the Ngadju claimant group. No further information detailing the logistical difficulties or the authority of the negotiating team was provided in the application. Further, there was no explanation given as to the logistical difficulties with respect to the Esperance Nyungar native title party.
Appended to the s.35 determination application is a minute of a consent determination in the following terms executed by Mr Murray Hutchings for and on behalf of the native title parties, by Ms Grace Tan on behalf of the grantee party, and by 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)

The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
The Government Party, the Native Title Parties and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
The Government Party, the Native Title Parties 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 63/875 may be done.’
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).

The Inquiry

On 21 December 2005, the Tribunal conducted a hearing. Mr Murray Hutchings from the GLSC appeared as counsel for the native title parties, Ms Grace Tan represented the grantee party and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party. At this hearing I indicated that the circumstances of this application were different from those previously dealt with by the Tribunal. As all of the named applicants in the Esperance Nyungar claim are deceased, questions were raised as to the capacity of the native title party to have consented to the doing of the act or the bringing of this s.35 application. With respect to the Ngadju native title party, I advised that there was not sufficient evidence accompanying the s.35 application indicating that the Ngadju People consent to the determination in the terms sought.
It is my view that in matters such as this, where the legal representative of a native title party is not of his own knowledge able to confirm authorisation to the consent determination, further documentary evidence is required to support the application for a consent determination, such as that provided in Angus Abdullah and Others on behalf of Njamal/Dudley Wabbie and Others on behalf of Palyku/Tyson Resources Pty Ltd/Wedgetail Exploration NL/State of Western Australia, NNTT WF06/7 [2006] NNTTA 27 (24 March 2006), Hon C J Sumner. Accordingly, I directed that evidence be provided showing the basis on which the native title party representative believed that consent had been given. Further, in relation to Esperance Nyungar, I also requested the parties to file submissions addressing how it is possible for the Tribunal to make a determination in the absence of any living applicants.
At an adjourned hearing on 13 March 2006, Mr Hutchings advised that although a meeting of the Ngadju and Esperance Nyungar working parties had occurred, the native title parties’ authority to consent to the determination was yet to be obtained due to insufficient attendance at those meetings to carry a resolution. At a further hearing on 19 April 2006, Mr Hutchings confirmed that the Esperance Nyungar People’s authority had been obtained and evidence of this in the form of an affidavit was filed with the Tribunal on 11 May 2006. For reasons set out in WF05/14, I subsequently formed the view that the Esperance Nyungar claimants did not have a capacity to bring the application before the Tribunal.
At a subsequent hearing on 29 May 2006, immediately after I had made an ex tempore decision in relation to WF05/14 (the reasons for which are now published) the native title party representative made an application to remove the Esperance Nyungar native title party as an applicant with respect to this s.35 determination application. The Government and grantee parties supported and consented to this application. I amended the application accordingly and the Esperance Nyungar native title party was removed as an applicant from the determination application.
In relation to the remaining Ngadju applicant, at the hearing of 19 April, Mr Hutchings reported that he was still not in a position to provide affidavit evidence of the Ngadju native title party’s authority, therefore, the hearing was adjourned for a further three weeks to allow him the opportunity to do so.
On 11 May 2006 the Tribunal received evidence in the form of an affidavit of Mr Hutchings. Mr Hutchings deposes (inter alia):
9.On the 23 November 2005 I convened a meeting of the Ngadju Working Party.
10.   The Ngadju working party was elected at a full claim meeting held on 15 November 2005. The object of the working party was that it was representative of the claim group and could conduct necessary business on behalf of the claim group between full claim meetings. The working party then reports to the full claim group at meetings. Full claim group meetings are held at least twice a year.
11.Four of the five remaining Applicants were elected to the working party.
12.   At the working party meeting held on 23 November 2005 two of the surviving five Applicants for the Ngadju People Native Title claim were present as well as other elected members of the working party.
13.At that meeting I discussed the logistical issues related to the signing of State Deeds.
14.   I was informed that at some previous meeting that had been convened 12 months prior to November 2005 it had been agreed that the Future Acts Lawyer of the Goldfields Land and Sea Council could sign for the Ngadju People with respect to Standard Regional Heritage Agreements and any ancillary documents relating to the granting of mining licences.
15.   I was not present at the meeting that gave authority to the Goldfields Land and Sea Council future acts lawyer (myself) to sign documents and therefore requested the working party again confirm the authority. The request was unanimously supported but is limited to applications that involve the granting of exploration and prospecting tenement licence applications only.
16.   I explained that it was possible to bring an application seeking Consent Determinations in relation to the tenements the subject of the State Deeds which may overcome the logistical difficulties in have State Deeds signed.
17.   Following the working party meeting and with the assistance of the Department of Industry and Resources I prepared the Consent Determination applications and forwarded them by facsimile to the Tribunal.
18.   Following the outcomes achieved at the working party meeting I am satisfied that I have the authority to bring the applications to seek that determinations be made in terms of the consent applications and that the Ngadju people have consented to the granting of the tenements.

Findings

On the basis of the information contained in the affidavit of Mr Hutchings I am satisfied that the native title party has consented to the doing of the act in accordance with the agreement they have separately entered into with the grantee party. The Tribunal must consider the particular facts and circumstances of each particular matter when making a consent determination where not all the persons comprising the applicant have signed the document. The law in relation to these matters is set out in Angus Abdullah & Others on behalf on Njamal/BGC Contracting Pty Ltd/Western Australia (2006) NNTTA 14 (16 February 2006) and recently in Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland [2006] NNTTA 61 (19 May 2006). As there is nothing to suggest the contrary, the Tribunal is entitled to accept the evidence of GLSC’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, I am satisfied that the Ngadju 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 63/875 to Pangolin Resources Pty Ltd, may be done.