Mr Barney U and Others on behalf of Wanjina/Wunggurr-Wilinggin (WC99/11)/ Western Australia/ Kimberley Explorations Services Pty Ltd and Wildtime Investments Pty Ltd
[2006] NNTTA 127
•29 August 2006
NATIONAL NATIVE TITLE TRIBUNAL
Mr Barney U and Others on behalf of Wanjina/Wunggurr-Wilinggin (WC99/11)/ Western Australia/ Kimberley Explorations Services Pty Ltd and Wildtime Investments Pty Ltd, [2006] NNTTA 127 (29 August 2006)
Application No: WF06/66
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
Mr Barney U and Others on behalf of Wanjina/Wunggurr-Wilinggin (WC99/11) (native title party)
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The State of Western Australia (Government party)
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Kimberley Explorations Services Pty Ltd and Wildtime Investments Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Dan O'Dea
Place: Perth
Date: 29 August 2006
Catchwords: Native title — future act — application for determination for the grant of exploration licence — deceased applicants — logistical difficulties — ancillary agreement reached — native title party consents to the determination — consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 41, 109, 203
Cases:Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5 [2006] NNTTA 54 (15 May 2006) Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 9 August 2006
Representative for the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representative of the
grantee party: Mr Nicholas Powrie, Tenement Administration Services
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 14 July 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 E04/1136 ('the proposed licence') under the Mining Act 1978 (WA) to Kimberley Explorations Services Pty Ltd and Wildtime Investments Pty Ltd (’the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s.31 of the Act).
The proposed licence is 228.81 square kilometres and is located 86 kilometres easterly of Derby in the Shire of Derby-West Kimberley. It is entirely overlapped by the Wanjina/Wunggurr-Wilinggin (WC99/11, WAD6015/99) native title determination area.
On 27 August 2004 the Wanjina/Wunggurr-Wilinggin native title claim application (WC99/11) was determined by the Federal Court to hold native title in the subject area. However, to date no native title body corporate has been registered (as defined by s.253 of the Act). The determination was made in this way notwithstanding s.55 of the Act which provides that if an approved determination that native title exists is made then ‘the Federal Court must, at the same time as it makes the determination, make the determinations in section 56 (which deals with holding the native title on trust) or 57 (which deals with non-trust functions of prescribed bodies corporate).’ Section 190(4) of the Act deals with the treatment of entries on the Register of Native Title Claims where the Registrar is notified that a determination of native title has been made. Where a positive determination of native title has been made as in this case the obligation imposed on the Registrar to amend the Register of Native Title Claims is as follows:
‘Entries removed or amended after determination, decision, or withdrawal
(4) If:
(a)the Registrar is notified under section 189 or 189A of a decision or determination covering a claim …
the Registrar must, as soon as practicable:
…
(e)in any other case – amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised.
Note:If an application has been finalised in relation to part of the area claimed, the Register would be amended to remove references to that area. If the application has been finalised by an approved determination of native title, that determination would be entered on the National Native Title Register.’
The Registrar has decided that the native title determination application is not finalised until a registered native title body corporate is established and until this happens the registered native title claimants remain on the Register and continue with the status of a native title party with the procedural rights under the right to negotiate provisions (Part 2, Division 3, Subdivision P).
Given the above, the native title party with respect to these proceedings is Mr Barney U, Mr Donald Campbell, Mr Jack Dale, Name Withheld for Cultural Reasons, Mr Jimmy Maline, Mr Keith Nenowatt, Name Withheld for Cultural Reasons, Mr Paddy Neowarra, Name Withheld for Cultural Reasons, Mr Paul Chapman, Mr Reggie Tataya, Mr Scotty Martin, Ms Betty Walker, Ms Kathy Oreeri, Name Withheld for Cultural Reasons and Ms Pansy Nulgit on behalf of Wanjina/Wunggurr-Wilinggin (WC99/11 – registered from 9 July 1999).
On 12 November 1999 the native title party lodged an objection to the expedited procedure statement with the Tribunal. On 3 March 2000 the Tribunal made a consent determination that the expedited procedure was not attracted and as a consequence the normal negotiation procedure provided for in s.31 of the Act applied to the proposed licences from that date.
On 28 July 2006, being a date more than six months after the s.29 notice was given, the grantee party made an application pursuant to s.35 of the Act for a future act determination under s.38.
The reasons for seeking a determination are set out in paragraph 10 of the application:
“The parties have in place a Heritage Protection Agreement ... in relation to any exploration activity in the area. A State Deed has been executed by six of the nine live applicants on the native title claim. The Kimberley Land Council is continuing to obtain the signatures of the remaining applicants.”
The grantee party requested that the future act determination be made by consent and parties forwarded a minute of a consent determination in the following terms, executed Mr Nicholas Powrie on behalf of the grantee party, Mr Robert Powrie on behalf of the native title party and Mr Trevor Creewel on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Exploration Licence E04/1136 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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The inquiry
On 9 August 2006, the Tribunal conducted a hearing at which the native title party was represented by Kimberley Land Council ('KLC') Future Acts Officer Ms Ania Maszkowski, the grantee party by Mr Nicholas Powrie and the Government party by Mr Rod Wahl and Ms Faye Mitchell. All parties confirmed their consent to the determination in the terms sought. Given that Ms Maszkowski is not a legal practitioner I directed that within 14 days the Kimberley Land Council provide an affidavit from a solicitor confirming the reasons for seeking the consent determination and for the Kimberley Land Council's satisfaction that it has been properly instructed by the native title party to consent to the determination.
On 24 August 2006, Mr Brendan Ambrose Renkin, Solicitor and Future Acts Legal Officer of the Kimberley Land Council submitted an affidavit dated 24 August 2006 which notes:
"3. The KLC, pursuant to the standing instructions of the Native Title Party, entered into negotiations with the Grantee Party in relation to a Native Title and Heritage Protection Agreement ('HPA').
4. In or about July, 2005, the parties reached agreement that the Future Act may be done, subject to the terms and conditions of the HPA.
5. I have spoken to Ms Athlea Sullivan, Native Title Services Manager of the KLC, and she advised me in words to the effect that 'in August 2005 the WWW Native Title Claim Group re-instructed the KLC to negotiate and enter into HPAs with grantees making applications for mining licences within the WWW Claim area.'
6. On or about the month of June 2006, the KLC received from the Grantee Party, a State Deed executed by the Grantee Party in relation to Tenement E04/1136....
7. On 5 June, 2006, the State Deed was forwarded to the relevant KLC Native Title Services Officer, who has responsibility for the Native Title Party's Claim, Mr Warren Barunga, with a request that the signatures of the named applicants be obtained. Mr Baruinga works in KLC Derby Office.
8. Mr Barunga informed me in words to the effect that 'on 19 and 20 June, 2006 at the WWW Claim Group Meeting he discussed the State Deed with the attending WWW Native Title Claimants including the Named Applicants, and that the Claim Group confirmed their consent to the HPA and the State Deed. Mr Barunga then collected the signatures of the Named Applicants who were present. The signatures were witnessed by the Legal Officer for the WWW Native Title Claim, Mr James Taueluelu'. A copy of the State Deed including the signatures is annexed to this affidavit and marked "BAR1".
9. I have been informed by Ms Athlea Sullivan in words to the effect that 'she has had a personal acquaintance with the WWW Native Title Named Applicants and Claimants for a number of years, and that from her personal knowledge the Named Applicants Jack Dann, Laurie Gowanulli, Paddy Wama and Many Wungundin are deceased and that the persons referred to in the annexed documents marked "BAR2" [death certificates] are these same persons'. I have been unable to obtain the death certificate for Mr Laurie Gowanulli to date.
10. On 21 June, 2006 I asked Mr Barunga to 'attempt to obtain the remaining Named Applicant's signatures, from Mr Barney U, Mr Jack Dale, Mr Reggie Tataya, Mr Scotty Martin and Ms Betty Walker'.
11. On 24 July, 2006 Mr Barunga informed me, in words to the effect that, 'in light of the probable location of the remaining named applicants he was not able to obtain the signatures until he next travelled up the Gibb River Rd, which would be sometime before the wet'.
12. In light of the difficulties in obtaining all the necessary signatures for the State Deed, the KLC proposes instead to enter into a Consent Determination in order to give effect to the HPA.
13. I believe that entry into a Consent Determination is consistent with the instructions of the WWW Native Title Claimants.
14. The preceding paragraphs are true and correct to the best of me knowledge and belief."
Annexed to the affidavit is a State Deed for the proposed licence executed by the grantee party and native title party named applicants Mr Donald Campbell, Mr Jimmy Maline, Mr Paddy Neowarra, Mr Paul Chapman, Ms Kathy Oreeri and Ms Pansy Nulgit. Also annexed to the affidavit are death certificates for three of the deceased named applicants mentioned in paragraph 9 of the affidavit.
I accept, based on the information provided in the affidavit of Mr Renkin, that the native title party consents to the determination. As the designated representative body under the Act, the KLC has a formal role in protecting the interests of native title holders (ss. 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s.203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s.203BC(1)(b)) in accordance with the requirements of the Act (s.203BC(2)). 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)). The Tribunal is entitled to accept as evidence the advice of KLC’s representative on whether the appropriate consent has been given by the native title party.
The Tribunal has previously decided that it is appropriate to make a determination by consent in the event that logistical difficulties in the Kimberley region prevent the timely execution of a State Deed (i.e. a s.31(1)(b) agreement) (see for example Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5 [2006] NNTTA 54 (15 May 2006) Hon C J Sumner). I am satisfied that the native title party collectively consents to the determination sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E04/1136 to Kimberley Explorations Services Pty Ltd and Wildtime Investments Pty Ltd, may be done.
Dan O'Dea
Member
29 August 2006
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