Nicholas Cooke & Others on behalf of Innawonga and Bunjima/Western Australia/Austral Gold Limited
[2007] NNTTA 107
•13 December 2007
NATIONAL NATIVE TITLE TRIBUNAL
Nicholas Cooke & Others on behalf of Innawonga and Bunjima/Western Australia/Austral Gold Limited [2007] NNTTA 107 (13 December 2007)
Application No: WF07/38
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
Nicholas Cooke & Others on behalf of Innawonga and Bunjima (WC96/61) (Applicant/native title party)
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The State of Western Australia (Government party)
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Austral Gold Limited (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 13 December 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licence – ancillary agreement – State Deed not executed – logistical difficulties – 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, 109, 203B
Mining Act 1978 (WA)
Cases:Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, [2004] NNTTA 85 (15 September 2004), Hon CJ Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Hearing date: 13 December 2007
Representative of the
grantee party: Mr Lynton Downe, Tenement Administration Services
Counsel for the
native title party: Mr Justin Edwards, Pilbara Native Title Service
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 2 June 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 E47/952 (‘the proposed licence’) under the Mining Act 1978 (WA) to Diamond Rose NL and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act). On 16 August 2007 Diamond Rose NL registered a change of name to Austral Gold Limited with the Department of Industry and Resources and for the purposes of this determination will be referred to the grantee party.
On 1 September 1999, an expedited procedure objection application was lodged with the Tribunal by Nelson Hughes and Others on behalf of the Eastern Guruma native title claimants (WC97/89). On 19 January 2000, the objection was determined by consent – expedited procedure does not apply – thereby according all registered native title claimant groups overlapping the proposed licence full procedural rights in accordance with Part 2 Division 3, Subdivision P of the Act (the right to negotiate about the doing of the proposed act).
The native title claim of the Eastern Guruma People was partially determined by consent in the Federal Court on 1 March 2007. At this time Justice Bennett also made orders by consent that, inter alia, the portion of the Eastern Guruma native title claim be discontinued to the extent that it overlapped the native title claim of the Innawonga & Bunjima People. It therefore follows that the Eastern Guruma People no longer enjoy procedural rights in relation to the proposed licence.
The native title party in respect of these proceedings is:
Nicholas Cooke and Alice Smith on behalf of the Innawonga & Bunjima People (WC96/61 – registered from 4 June 1996), (‘the native title party’).
The proposed licence comprises an area of 217.67 square kilometres and is situated 49 kilometres south westerly of Tom Price in the Shire of Ashburton. The proposed licence is entirely overlapped by the registered claim of the native title party.
On 16 November 2007, being a date more than six months after the s 29 notice was given, the Innawonga & Bunjima People made an application pursuant to s 35 of the Act for a future act determination under s 38 in respect of the proposed licence. Appended to the application is the affidavit of Matthew James Ryan, sworn 9 November 2007 and made in the following terms:
“On 9 November 2007, I Michael James Ryan of 262 Lewington Way, Karratha, solicitor, say on oath:
1. I am a senior legal officer employed by the Pilbara Native Title Service.
2. Pilbara Native Title Service represents the applicants on the Innawonga Bunjima native title claim, WC96/061.
3. Mr Dennis Jacobs, an employee of Pilbara Native Title Service, has informed me that the parties, being the Innawonga Bunjima people and Diamond Rose NL (now Austral Gold Limited), have reached an agreement in relation to heritage protection on exploration licence E47/952.
4. The applicants on the Innawonga Bunjima native title claim have instructed me that in these circumstances they consent to the granting of exploration licence 47/952.
5. A deed was prepared to enable the grant of E47/952, however Pilbara Native Title Service has made several unsuccessful attempts to locate the applicants and have the deed executed.
6. In the circumstances, it is appropriate that the National Native Title Tribunal make a consent determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 47/952 may be done’
Also appended to the application was a minute of consent determination in the following terms, executed by Mr Ryan for and on behalf of the native title party in his position as a senior legal officer with Pilbara Native Title Service (‘PNTS’), the Pilbara region service arm of the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, the recognised representative body for the region under s 203B of the Act :
‘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 Exploration Licence 47/952 may be done.’
The Tribunal has subsequently been provided with counterparts of this minute executed by Mr Lynton Downe (Tenement Administration Services) on behalf of the grantee party and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party
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. 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 13 December 2007 the Tribunal conducted a hearing at which each of the parties was represented. Mr Justin Edwards for the native title party confirmed that the native title party had consented to the grant of the proposed licence and that PNTS has standing instructions from the native title party to consent to a determination that the act may be done. Mr Edwards also elaborated on the steps PNTS had taken in attempting to secure the signatures of the two named applicants for the Innawonga & Bunjima on a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). No other party contested the making of a consent determination and I am satisfied that the native title party has entered into an ancillary agreement concerned with, inter alia, the protection of its heritage in the subject area.
Findings
The parties are all legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate. 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 Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, [2004] NNTTA 85 (15 September 2004), Hon CJ Sumner. I adopt Deputy President Sumner’s findings from paragraph [9] of that determination in relation to the responsibilities of PNTS 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 PNTS 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 E47/952 to Austral Gold Limited, may be done.
Daniel O’Dea
Member
13 December 2007
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