Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Golden West Resources Ltd
[2010] NNTTA 139
•30 August 2010
NATIONAL NATIVE TITLE TRIBUNAL
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Golden West Resources Ltd, [2010] NNTTA 139 (30 August 2010)
Application No: WF10/15
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 (WC07/3) (Applicant/native title party)
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The State of Western Australia (Government party)
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Golden West Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 30 August 2010
Catchwords: Native title – future act – application for determination for the grant of mining lease – Heritage Protection Agreement – logistical difficulties in the execution of the State Deed – native title party consents to the determination – consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38, 109
Mining Act1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia [2005] NNTT WF05/3, WF05/4, WF05/5, NNTTA 47 (14 July 2005), Hon C J Sumner
Counsel for the
native title party: Mr Malcolm O’Dell, Central Desert Native Title Services Limited
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Mines and Petroleum
Representative of the
grantee party: Mr Christopher Jephcott, Golden West Resources Ltd
REASONS FOR FUTURE ACT DETERMINATION
Background
On 13 February 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 a mining lease M53/1087 (the proposed lease) under the Mining Act1978 (WA) to Golden West Resouces Ltd (the grantee party).
The native title party with respect of this proceeding is Les Tullock, Friday Jones, Elisabeth Wonyabong, Cyril Bingham, for and on behalf of the Tarlpa People (WC07/3 – registered from 30 April 2008) (the native title party).
The proposed lease covers an area of some 10,881.79 hectares located 31 kilometres south westerly of Wiluna in the Shire of Wiluna. The proposed lease is 72.8 per cent overlapped by the registered claim of the native title party.
On 19 August 2010, 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. The native title party requested that the future act determination be made by consent on the basis that there are logistical difficulties in arranging execution of the State Deed.
Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently executed in counterparts by, Mr Christopher Jephcott on behalf of the grantee party, and Mr Rod Wahl, 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 has 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 consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Lease 53/1087 may be done.’
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. If necessary, 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 (22 June 2001), Hon C J Sumner) but I am satisfied this matter can be adequately determined ‘on the papers’.
Paragraph 10 of the application explains why a consent determination application is sought:
‘1. The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act.
2. The native title party consents to the proposed act being done, that is the grant of Mining Lease 53/1087 the subject of this consent determination. The grantee party and the native title party confirm that a Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Mining Lease 53/1087 can therefore be granted in pursuance to the consent determination.
3.There are logistical difficulties in arranging for the Native Title Party to execute a State Deed and ancillary agreement in respect of each tenement sought by the Grantee Party as contemplated by s.31(1)(b) of the Native Title Act. These logistical difficulties include arranging for travel for a solicitor from the Central Desert Native Title Services Limited to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants on native title claim Tarlpa NNTT No. WC07/3 (WAD248/07) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.’
As a result of the logistical difficulties in arranging for the execution of an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. State Deed) by the native title party, the Tribunal must consider whether the matter can be resolved by way of consent determination.
The inquiry findings
All parties have agreed that the determination could be made on the papers. The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants on State Deeds in this and other regions in Western Australia as a legitimate basis for seeking a consent determination (see for example Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner (Wilma Freddie)).
On the basis of information contained in the application and the signed minute of consent executed by all parties, I am satisfied that the parties (and particularly the native title party) consent to the determination. I adopt my findings in Wilma Freddie (at [9]) in relation to the responsibilities of Central Desert Native Title Service as a representative body under the Act which is a formal role to protect the interests of native title parties and be satisfied that persons they represent understand and consent to a course of action in accordance with the requirements of the Act. 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)). Unless there is anything to suggest the contrary, the Tribunal is entitled to accept, as evidence, the advice of legal representatives and representative body on whether the appropriate consent has been given by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of the mining lease M53/1087 to Golden West Resources Ltd, may be done.
Hon C J Sumner
Deputy President
30 August 2010
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