Ollan Dimer and Others on behalf of Ngadju/Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Frasex Pty Ltd

[2006] NNTTA 135

NATIONAL NATIVE TITLE TRIBUNAL

Ollan Dimer and Others on behalf of Ngadju/Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Frasex Pty Ltd [2006] NNTTA 135 (12 October 2006)

Application Nos:       WF06/74

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into future act determination applications

Ollan Dimer and Others on behalf of Ngadju (WC99/2) (Ngadju native title party)

- and -

Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group (WC97/40) (Narnoobinya native title party)

- and -

The State of Western Australia (Government party)

- and -

Fraserx Pty Ltd (grantee party)

FUTURE ACT DETERMINATIONS

Tribunal:  Daniel O'Dea, Member

Place:  Perth
Date:  12 October 2006

Catchwords:  Native title — future act — application for determination for the grant of exploration licences — logistical difficulties preclude execution of a State Deed — regional standard heritage agreement — native title party as a whole consents to the determination — consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 29, 31(1)(b), 35, 38, 41A(1)(a),
  109

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001]

Ollan Dimer on behalf of the Ngadju People/ Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Heron Resources Ltd/Western Australia, NNTT WF06/52, [2006] NNTTA 124 (22 August 2006), Member Daniel O'Dea

Hearing date:  n/a

Counsel for the
native title party:                 Mr Murray Hutchings, Goldfields Land and Sea Council

Representatives of the         

grantee parties:  Mr Chris Clegg, Statewide Tenement and Advisory 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

Background facts

1. On 20 April 2005 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act being the grant of exploration licences E63/811 and E63/812 ('the proposed licences') to Fraserx Pty Ltd ('the grantee party').

2. The proposed licences are located in the Shire of Dundas.  E63/811 comprises 203.45 square kilometres north-westerly of Balladonia and E63/812 comprises 203.52 square kilometres easterly of Balladonia.

3. The native title parties to these proceedings are:

   ·Deceased person, Betty Bullen, deceased person, Jack Shultz, John Walter Graham, Katie Ray, Mabel Wilson, deceased person, Ollan Dimer, and Sonny Graham on behalf of Ngadju (WC99/2 – registered from 28 September 2000), ('the Ngadju native title party')

   ·Dorothy Ann Tucker and Thelma Vera Tucker on behalf of the Narnoobinya Family Group (WC97/40 – registered from 4 June 1997), (‘the Narnoobinya native title party’)

4. E63/811 is 100 per cent overlapped by the registered claims of both native title parties and E63/812 is overlapped by the registered claims of the Ngadju and Narnoobinya native title parties at 100 per cent and 99.56 per cent respectively.

5. On 25 August 2006, being dates more than six months after the s 29 notice was given, the Ngadju native title party made application pursuant to s 35 of the Act for future act determinations under s 38. The Ngadju native title party requested that the future act determination be made by consent. The grantee party, Government party and Ngadju native title party later produced a minute for consent determination executed by each of their representatives as confirmation of consent.

6. 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.  (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).

7. The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray William Hutchings, solicitor employed by the GLSC for the native title party, dated 23 August 2006.  Mr Hutchings attaches a list of proposed licences which include those subject to this application and states at paragraph 6 and 7:

8. Attached hereto and marked "B" is a copy of an affidavit signed by Murray William Hutchings and dated 11th May 2006. ("the previous affidavit").

9. The previous affidavit details the difficulties encountered in obtaining the signatures of all Ngadju People Applicants to sign the State Deeds and the procedure that I followed to obtain the consent of the majority of Applicants to proceed to consent determinations.

1. The contents of the previous affidavit were considered by myself in Ollan Dimer on behalf of the Ngadju People/ Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Heron Resources Ltd/Western Australia, NNTT WF06/52, [2006] NNTTA 124 (22 August 2006) ("Heron Resources").  At paragraph 12 I noted that the Tribunal is entitled to accept the evidence of the native title party's legal representative on whether the appropriate consent has been given and as a consequence, I was satisfied that the native title party had consented to the determination.

2. On 28 September 2006 a copy of an agreement in the form of a s 31(1)(b) agreement ('State Deed') executed by the grantee party and the Narnoobinya native title party was lodged with the Tribunal by the Government party. The State Deed encompassed each of the proposed licences the subject of this application.

The inquiry

1. Given the reasons for seeking a consent determination were explored in Heron Resources, I sought submissions from all parties on the appropriateness of conducting the inquiry 'on the papers' (ie without a formal hearing).  As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.

Findings

Narnoobinya native title party

1. On the basis that a State Deed has been executed by the Narnoobinya native title party and grantee party, and that Ms Dorothy Tucker their representative has since confirmed this, I am satisfied that the Narnoobinya native title party has consented to the determination.

Ngadju native title party

1. I adopt the findings at paragraph 12 of Heron Resources and am satisfied that the Ngadju native title party has consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act being the grant of exploration licences E63/811 and E63/812 to Fraserx Pty Ltd may be done.

Daniel O'Dea
Member

12 October 2006