Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Allarrow Pty Ltd
[2013] NNTTA 24
•8 March 2013
NATIONAL NATIVE TITLE TRIBUNAL
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Allarrow Pty Ltd [2013] NNTTA 24 (8 March 2013)
Application No: WF2013/0002
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
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants (WC2007/003) (Applicant/native title party)
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The State of Western Australia (Government party)
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Allarrow Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Member Dan O’Dea
Place: Perth
Date: 8 March 2013
Catchwords: Native title - future act - application for determination for the grant of prospecting licence - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38
Mining Act 1978 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner, Deputy President
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: n/a
Representative for the Mr Mike Allbrook
native title party: Central Desert Native Title Services Limited
Representative for the Ms Lydia Brisbout
grantee party: McMahon Mining Title Services Pty Ltd
Representatives for the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 24 February 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of prospecting licence 53/1527 (‘the proposed tenement’) under the Mining Act 1978 (WA) to Allarrow Pty Ltd.
The proposed tenement comprises an area of 181.56 hectares located approximately 33 kilometres south east of Wiluna, within the Shire of Wiluna. It is 100 per cent overlapped by the registered claim of the Tarlpa People (WC2007/003 – registered from 30 April 2008).
The native title party with respect to this proceeding is Les Tullock and Others on behalf of the Tarlpa People.
On 22 January 2013, 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 determination under s 38 of the Act in relation to the proposed tenement and requested that the future act determination be made by consent.
Appended to the application is a minute of consent determination in the following terms executed by Malcolm O’Dell on behalf of the native title party and Lydia Brisbout on behalf of the grantee party. The minute was later executed by Jeff O’Halloran, a Senior Adviser of the 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 Act1993.
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 Act1993.
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 Prospecting Licence P53/1527 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. Central Desert Native Title Services (‘CDNTS’) is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. The Tribunal will take submissions from 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).
Paragraphs 7 to 10 of the affidavit of Mr Michael David Firth Allbrook, Lawyer at CDNTS, affirmed on 4 February 2013, explain why a consent determination is sought:
7.On 27 November 2012 Central Desert held a meeting in the town of Wiluna located to the north of the Tarlpa native title claim area. At the meeting, I showed a map of the location on the Licence and I advised members of the Native Title Party that Central Desert had negotiated on their behalf the terms of a land access agreement with the Grantee Party (Agreement).
8.At the meeting the Native Title Party claim group members provided instructions to consent to the Licence being granted. This decision was made in accordance with the traditional laws and customs of the Native Title Party.
9.The Government Party requested that the Native Title Party execute a State Deed being an agreement contemplated by s.31(1)(b) of the NTA and the making of which is referred to in section 35(1)(b), so that the Licence can be granted.
10.I have been informed and I verily believe that there are logistical difficulties in arranging for the Native Title Party to execute a State Deed in respect of the Licence. These logistical difficulties include arranging for a solicitor from Central Desert to travel from Perth to Wiluna, the time taken to arrange a meeting with the Applicant in WAS 248/2007 and the burden which attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.
It is clear from Mr Allbrook’s affidavit that the native title party wish to proceed with a consent determination. The Tribunal is entitled to accept the evidence of the CDNTS legal representative on whether appropriate consent has been given by the native title party, and there is nothing in the papers before me to suggest the contrary.
The CDNTS has applied for a consent determination in order to fulfil their instructions from the native title party, as the CDNTS has stated that logistical difficulties have prevented signatures of persons comprising the native title party being obtained on a State Deed. The Government party will be unable to grant the proposed tenement until a State Deed is signed by all relevant signatories, or a determination pursuant to section 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed tenement) may be done.
The Inquiry
On the basis of the information contained in the application, Mr Allbrook’s affidavit, the executed minute, and with no objection from any parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
Findings
The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title party applicant on the basis of an affidavit from its legal representative (see Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member; Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member).
Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed tenement and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence 53/1527 to Allarrow Pty Ltd, may be done.
Dan O’Dea
Member
8 March 2013
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