Kevin Peter Walley, Tony Moncrieff, Lily Walley, Rose Budd, Madeline Walley, Adeline Gilla, Robert Ginger, Marjorie Mourambine, William Baumgarten and Leslie Baumgarten on behalf of the Ngoonooru Wadjari People...

[2002] NNTTA 192

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Peter Walley, Tony Moncrieff, Lily Walley, Rose Budd, Madeline Walley, Adeline Gilla, Robert Ginger, Marjorie Mourambine, William Baumgarten and Leslie Baumgarten on behalf of the Ngoonooru Wadjari People (WC00/012)/Allarrow Pty Ltd/Western Australia, [2002] NNTTA 192 (23 August 2002)

Application No:        WF02/23 (E51/884)

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

- and -

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

Kevin Peter Walley, Tony Moncrieff, Lily Walley, Rose Budd, Madeline Walley, Adeline Gilla, Robert Ginger, Marjorie Mourambine, William Baumgarten and Leslie Baumgarten on behalf of the Ngoonooru Wadjari People WC00/012
  (Applicant/Native title party)

- and -

Allarrow Pty Ltd  (Grantee party)

- and -

The State of Western Australia  (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth

Date:  23 August 2002

Catchwords:    Native title - future act - application for determination for the grant of an exploration licence - consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Date:                 22 August 2002

Counsel for the

native title party:            Ms Pam Ellison, Yamatji Land & Sea Council

Representative of the

grantee party:                 Mr Terry McMahon, TE & CG McMahon Nominees Pty Ltd

Representatives of the     Mr Rod Wahl, Crown Solicitor’s Office

Government party:         Mr David Crabtree, Department of Mineral and Petroleum Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 30 June 1999, 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 E51/884 (‘the exploration licence’), under the Mining Act 1978 (WA) to Allarrow Pty Ltd.

2. The native title party  in respect of these proceedings is:

Kevin Peter Walley, Tony Moncrieff, Lily Walley, Rose Budd, Madeline Walley, Adeline Gilla, Robert Ginger, Marjorie Mourambine, William Baumgarten and Leslie Baumgarten on behalf of the Ngoonooru Wadjari People WC00/012.

1. On 10 December 1999, the Tribunal determined by consent of all parties that the grant did not attract the expedited procedure (WO99/258).

2. On 16 August 2002, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the above exploration licence.

3. The applicant has requested a consent determination that the act 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

4. On 22 August 2002, the Tribunal conducted a hearing. The exploration licence is the subject of an agreement (tendered in evidence) dated 5 July 2002 reached between the grantee and the native title parties to allow for the grant of the tenement (E51/884). The agreement is based upon an undertaking by the grantee party to fund and facilitate heritage survey/s within the proposed tenement prior to undertaking certain ground disturbing activities. The native title party has established a working group which was authorised by a community meeting of the claimant group to negotiate and conclude agreements in relation to matters of this kind. On 6 August 2002 at a working group meeting at Meekatharra at which the grantee party was present, the Yamatji Land & Sea Council (the Native Title Representative Body for the area of the claim) was instructed to make application for the consent determination. A State Deed (agreement of the kind mentioned in s 31(1)(b) of the Act) has not been executed by all of the negotiation parties for reasons of administrative efficiency as travel would be required to each of the registered native title claimants who live throughout the region in the vicinity of the claim.

5. The representatives of all parties have signed a document in the following terms:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)

   1.The Government Party has complied with the requirements of s31(1)(a) of the Native Title Act 1993.

   2.The Government Party, the Grantee Party and the Native Title Parties have complied with the requirements of s31(1)(b) of the Native Title Act 1993.

   3.The Government Party, the Grantee Party and the Native Title Party consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of exploration licence E51/884 may be done pursuant to the agreement entitled ‘YAMATJI LAND AND SEA COUNCIL CONTRACT FOR SERVICES IN RELATION TO EXPLORATION” dated 5 July 2002.’

6. At the hearing all parties through their representatives, Ms Pam Ellison, counsel for the native title party, Mr Terry McMahon, the grantee party representative and Mr Rod Wahl of the Crown Solicitor’s Office for the Government party, confirmed their consent to the determination requested. I am satisfied on the evidence provided that the native title party consents to the determination being sought. As a heritage survey will be carried out pursuant to the Agreement there is unlikely to be any interference with sites of significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E51/884 to Allarrow Pty Ltd, may be done pursuant to the agreement entitled ‘YAMATJI LAND AND SEA COUNCIL CONTRACT FOR SERVICES IN RELATION TO EXPLORATION” dated 5 July 2002.

Hon C J Sumner
Deputy President

23 August 2002