Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia
[2006] NNTTA 59
•17 May 2006
NATIONAL NATIVE TITLE TRIBUNAL
Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, [2006] NNTTA 59 (17 May 2006)
Application No: WF05/15
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
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, Member
Place: Perth
Date: 17 May 2006
Catchwords: Native title – future act – application for determination for the grant of exploration and prospecting licences – logistical difficulties preclude execution of a State Deed – native title party consents to the determination – consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth), ss 35, 38, 203B 203B(4), 203BC(1)(a), 203BB(1)(b), 203BC(1)(b), 203BC(2), 109(1)
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
Hearing dates 21 December 2005; 13 March 2006; 19 April 2006; 12 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, 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 63/874 and prospecting licences 63/1255, 63/1256, 63/1279, 63/1280, 63/1281, P63/1282, 63/1283, 63/1284, 63/1285, 63/1286 and 63/1294 (‘the proposed licences’) under the Mining Act 1978 (WA) to Pangolin Resources Pty Ltd (‘the grantee party’).
On 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 prospecting licences 63/1303, 63/1304, 63/1305, 63/1306, 63/1307 and 63/1308 (‘the proposed licences’) under the Mining Act 1978 (WA) to Pangolin Resources Pty Ltd (‘the grantee party’).
The native title party in respect of these proceedings is:
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 native title party’).
The areas and locations of the proposed licences are as follows:
· E63/874 – 34.69km2, 46km northerly of Salmon Gums, in the Shire of Dundas/Esperance;
· P63/1255 – 291.51 hectares, 33km southerly of Norseman, in the Shire of Dundas;
· P63/1256 – 291.51 hectares, 33km southerly of Norseman, in the Shire of Dundas;
· P63/1279 – 18.04 hectares, 16km north easterly of Norseman, in the Shire of Dundas;
· P63/1280 – 186.93 hectares, 15km southerly of Norseman, in the Shire of Dundas;
· P63/1281 – 492.14 hectares, 11km south westerly of Norseman, in the Shire of Dundas;
· P63/1282 – 492.14 hectares, 11km south westerly of Norseman, in the Shire of Dundas;
· P63/1283 – 492.14 hectares, 11km south westerly of Norseman, in the Shire of Dundas;
· P63/1284 – 42.57 hectares, 31km southerly of Norseman, in the Shire of Dundas;
· P63/1285 – 86.95 hectares, 35km southerly of Norseman, in the Shire of Dundas;
· P63/1286 – 122.09 hectares, 40km southerly of Norseman, in the Shire of Dundas;
· P63/1294 – 189.6 hectares, 33km southerly of Norseman, in the Shire of Dundas
· P63/1303 – 226.49 hectares, 24km north easterly of Norseman, in the Shire of Dundas;
· P63/1304 – 226.49 hectares, 24km north easterly of Norseman, in the Shire of Dundas;
· P63/1305 – 485.07 hectares, 15km north easterly of Norseman, in the Shire of Dundas;
· P63/1306 – 485.07 hectares, 15km north easterly of Norseman, in the Shire of Dundas;
· P63/1307 – 64.86 hectares, 19km north easterly of Norseman, in the Shire of Dundas;
· P63/1308 – 485.07 hectares, 15km north easterly of Norseman, in the Shire of Dundas.
The proposed licences entirely overlap the Ngadju native title claim. No other native title determination applications will be affected by the exploration and prospecting licences.
On 7 July 2005, the Department of Industry and Resources requested mediation under s 31 (3) of the Act in relation to exploration licence 63/874 and prospecting licences 63/1255, 63/1256, 63/1279, 63/1280, 63/1281, P63/1282, 63/1283, 63/1284, 63/1285, 63/1286 and 63/1294. At the first mediation meeting on 22 July 2005, parties advised that an in principle agreement had been reached. On that basis, the matter was referred to the Tribunal’s settlement list. The mediation remained in the settlement list whilst the native title party representative arranged for the Ngadju People to execute an ancillary agreement and State Deed. It became apparent at a settlement list meeting on 25 November 2005 that it was not possible to obtain all the required signatures for the purpose of a State Deed. The mediation 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 licences. The GLSC is the representative body for native title claimants in the Goldfields region pursuant to s 203B of the Act and as such has authorisation to act on behalf of the Ngadju People. Paragraph 10 of the application asserts that the grantee and native title parties have reached agreement about the doing of the acts and consent to the future act determination. It is also stated that there are logistical difficulties precluding the native title party 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.
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 party, 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 Party 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 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 63/874 and Prospecting Licences 63/1255, 63/1256, 63/1279, 63/1280, 63/1281, P63/1282, 63/1283, 63/1284, 63/1285, 63/1286, 63/1294 63/1303, 63/1304, 63/1305, 63/1306, 63/1307 and 63/1308 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 party, Ms Grace Tan represented the grantee party and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party. At the hearing 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.
At an adjourned hearing on 13 March 2006, Mr Hutchings advised that although a meeting of the Ngadju working party had occurred, the native title party’s authority to consent to the determination was yet to be obtained due to insufficient attendance at the meeting to carry a resolution. At a further hearing on 19 April 2006, Mr Hutchings reported that he was still not in a position to provide affidavit evidence of the 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 asserts (inter alia):
- On the 23 November 2005 I convened a meeting of the Ngadju Working Party.
- 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.
- Four of the five remaining Applicants were elected to the working party.
- 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.
- At that meeting I discussed the logistical issues related to the signing of State Deeds.
- 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.
- 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.
- 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.
- 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.
- 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.
The parties are [all] legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate.
Findings
I take into account that as the representative body under the Act, GLSC 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)); see also 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 at [10]. Unless there is anything 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 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 63/874 and prospecting licences 63/1255, 63/1256, 63/1279, 63/1280, 63/1281, P63/1282, 63/1283, 63/1284, 63/1285, 63/1286, 63/1294, 63/1303, 63/1304, 63/1305, 63/1306, 63/1307 and 63/1308 to Pangolin Resources Pty Ltd may be done.
Mr Dan O’Dea
Member
17 May 2006
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