Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd

[2009] NNTTA 159

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd, [2009] NNTTA 159 (30 November 2009)

Application No:                   WF09/24

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community (WC96/93) (Applicant/native title party)

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The State of Western Australia (Government party)

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Aurox Resources Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  30 November 2009

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – standard Mullewa Wadjari Exploration and Heritage Agreement entered into – native title party does not require a State Deed be signed – native title party consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 30, 31, 32, 35, 38, 39

Mining Act1978 (WA)

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

Hearing date:  27 November 2009

Representatives of the         Mr Ronald Bower, Corser and Corser Lawyers

native title party party:      Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the     

grantee party:  Mr Peter Delfante

Representatives of the         Mr Rod Wahl and Mr Jeff O’Halloran, State Solicitor’s Office

Government party:             Mr Dave Thomson, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 4 June 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence E59/1443 (‘the proposed licence’) under the Mining Act1978 (WA) to Aurox Resources Ltd (‘the grantee party’).

2. The ‘native title party’ with respect to this proceeding is Malcolm Papertalk, Leedham Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones and Raymond Merritt for and on behalf of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996).

3. The proposed licence covers an area of some 42.6 square kilometres located seven kilometres south westerly of Yalgoo in the Shire of Yalgoo. The proposed licence is 61.96 per cent overlapped by the registered claim of the native title party.

4. On 27 October 2009, 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 of the Act.

5. A minute of consent determination in the following terms executed by Mr Leedham Papertalk for and on behalf of the native title party was forwarded to the Tribunal on 9 November 2009. The minute of consent was subsequently executed in counterparts by Mr Peter Delfante on behalf of the grantee party and 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)

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 have 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 Exploration Licence 59/1443 may be done.’

1. Paragraph 10 of the application states:

   ‘The native title party consents to the proposed act being done, that is the grant of Exploration Licence 59/1443 the subject of this consent determination. The grantee party and the native title party confirm that they have entered into a Heritage Agreement and the grantee party agrees to abide by the provisions therein.’

2. The Tribunal has power to make a determination with the consent of the parties.  It will normally be appropriate for the Tribunal to make a consent determination where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of their 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

1. On 27 November 2009, I convened a hearing at which the representatives of all parties, including the solicitor for the native title party, confirmed their consent to the determination in the terms sought.

2. The native title party’s stated position is provided in the affidavit of Mr Leedham Papertalk, sworn on 3 November 2009 and made in the following terms:

   ‘I, LEEDHAM PAPERTALK, of Bundy Bunna Farm, Mullewa, in the State of Western Australia, Native Title applicant, being duly sworn make oath and say as follows:

   1.That I am an Applicant for a determination of native title in relation to the area of land and waters affected by the application of the Grantee Party for Exploration Licence E59/1443;

   2.Aurox Resources Ltd has applied for an exploration licence within the Mullewa Wadjari Claim area.

   3.The exploration licence has not been processed under the “expedited procedure” regime of the Native Title Act.

   4.Instead, the application is within the “right to negotiate” regime of the Native title Act, which requires the parties to negotiate an agreement to comply with the provisions of the Native Title Act.

   5.The parties have negotiated an agreement, and Aurox Resources Ltd has entered into the standard Mullewa Wadjari Exploration and Heritage Agreement.

   6.This agreement has been authorized by the Mullewa Wadjari group as applicable for the grant of all exploration licences within the Mullewa Wadjari claim area.

   7.I am the authorized person to execute the agreement on behalf of the Mullewa Wadjari People

   8.Aurox Resources Ltd has executed the agreement.

   9.The Mullewa Wadjari people therefore do not require that a State Deed be signed, as they have authorised that the agreement be sufficient for the grant of the exploration licence to Aurox Resources Ltd.

   10.The Mullewa Wadjari people therefore request that a consent determination be approved for the grant of the exploration licence.’

3. The affidavit of Mr Papertalk is uncontested.  Mr Papertalk is one of the named applicants for the native title claim of the Mullewa Wadjari Community and I accept that he has authority to speak on behalf of the native title party.

4. The affidavit of Mr Papertalk confirms the advice provided by Mr Bower at the hearing that the native title party consents to a determination that the act may be done.

Findings

1. In this case the native title party has chosen not to execute the State Deed, being an agreement of the type contemplated in s 31(1)(b) of the Act which is entered into with each of the negotiation parties, on the basis that the proposed licence is an exploration licence and the native title party has authorised that the standard Mullewa Wadjari Exploration and Heritage Agreement entered into by the grantee and native title parties is sufficient for the grant of the proposed licence.

2. In the absence of a s 31(1)(b) agreement (State Deed) being executed and lodged with the Tribunal (s 41A(1)), the Tribunal must consider whether a determination by consent is appropriate and particularly whether the native title party is authorised to consent to the determination. I am satisfied, based on the evidence provided that the native title party has agreed to the grant of the proposed licence and consents to a determination in the terms sought.

3. I also note and have regard to the fact that the terms of the standard Mullewa Wadjari Exploration and Heritage Agreement to which Mr Papertalk refers are similar to those previously agreed to by the native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of the exploration licence E59/1443 to Aurox Resources Ltd, may be done.

Hon C J Sumner
Deputy President
30 November 2009