Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People/Western Australia/Giralia Resources Nl
[2007] NNTTA 10
•29 January 2007
NATIONAL NATIVE TITLE TRIBUNAL
Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People/Western Australia/Giralia Resources NL, [2007] NNTTA 10 (29 January 2007)
Application No: WF06/82
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
Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People (WC01/5) (Applicant/native title party)
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The State of Western Australia (Government party)
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Giralia Resources NL (Grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 29 January 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants not signed state deed – logistical difficulties – heritage agreement executed by grantee party – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109
Cases:Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 25 January 2007
Counsel for the
native title party: Mr Sunil Sivarajah, Pilbara Native Title Service
Representative of the
grantee party: Mr Mike Joyce, Giralia Resources NL
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Dave Thomson, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 18 January 2006, 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 E08/1464 (‘the proposed licence’) under the Mining Act 1978 (WA) to Giralia Resources NL (‘the grantee party’).
The proposed licence comprises an area of some 15.77 square kilometres located 117 kilometres westerly of Paraburdoo in the Shire of Ashburton and is entirely overlapped by the registered native title claim of the Puutu Kunti Kurrama and Pinikura People (WC01/5, registered from 29 November 2001).
The native title party with respect to these proceedings is Maudie Dowton and Others on behalf of the Puutu Kunti Kurrama and Pinikura People (WC01/5).
On 21 November 2006, being a date more than six months after the s 29 notice was given, the Pilbara Native Title Service (‘PNTS’) which is the service area of Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) on behalf of the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’).
The native title party has requested that the future act determination be made by consent on the basis that an ancillary agreement has been reached with the grantee party but an agreement of the kind mentioned in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) has not been executed by any of the persons named as part of the native title applicant. Appended to the application is a minute of a consent determination in the following terms, executed by Mr Sunil Sivarajah, solicitor with PNTS on behalf of the native title party, and subsequently by Mr Michael Joyce on behalf of the grantee party and Mr Jeff O'Halloran 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 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 08/1464 may be done.’
The Tribunal has the 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. Yamatji is the recognised representative body under the Act for the native title party. 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 25 January 2007 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Mr Sunil Sivarajah, counsel for the native title party, advised he was satisfied that he had been properly instructed by the native title party to consent to the determination. He stated that for logistical reasons and cost the persons named as part of the applicant had not signed the State Deed. There are 13 named applicants most of whom are located in various parts in the Pilbara region, one is in a remote area of the Northern Territory and another in Perth. The native title party and grantee party have entered into a Heritage Agreement which the native title party considers contains conditions to protect their cultural heritage (para 11 of the application).
The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants in the Yamatji regions to a State Deed as a legitimate basis for seeking a consent determination (see for example Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon C J Sumner). I adopt the findings from paragraph [11] of that determination in relation to the responsibilities of Yamatji as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. Taking those findings into account I accept the advice of the solicitor engaged by the representative body that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E08/1464 to Giralia Resources NL, may be done.
Hon C J Sumner
Deputy President
29 January 2007
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