Ollan Dimer and Others on behalf of Ngadju/Western Australia/Heron Resources Ltd
[2008] NNTTA 50
•17 April 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of Ngadju/Western Australia/Heron Resources Ltd, [2008] NNTTA 50 (17 April 2008)
Application No: WF08/6
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
Ollan Dimer and Others on behalf of Ngadju (WC99/2) (Applicant/native title party)
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The State of Western Australia (Government party)
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Heron Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 17 April 2008
Catchwords: Native title – future act – application for determination for the grant of exploration licences – named applicants not signed state deed – logistical difficulties – regional standard 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 29, 31, 35, 38, 109,
Cases:Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/15 [2006], NNTTA 59 (17 May 2006), Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 1 April 2008
Solicitor for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
Representative of the
grantee party: Ms Caroline Ngunjiri, Kellie Hill Consulting
REASONS FOR FUTURE ACT DETERMINATION
On 21 February 2001 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E63/707 and E63/708 (‘the proposed licences’) under the Mining Act 1978 (WA) to Heron Resources NL (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the act is one which can be done without the normal negotiations required by s 31 of the Act).
The Government party’s records note that on 12 April 2001 the grantee party registered a change of name to Heron Resources Ltd.
E63/707 comprises an area of some 203.34 square kilometres located 74 kilometres easterly of Norseman in the Shire of Dundas. It is 100 per cent overlapped by the Ngadju native title claim (WC99/2, registered from 28 September 2000) and 3.33% overlapped by the Narnoobinya Family Group native title claim (WC97/40, registered from 4 June 1997).
E63/708 comprises an area of some 203.76 square kilometres located 79 kilometres northeasterly of Norseman in the Shire of Dundas. It is 100 per cent overlapped by the Ngadju native title claim and 2.22% overlapped by the Narnoobinya Family Group native title claim.
The native title parties with respect to these proceedings are:-
·Thelma Vera Tucker and Dorothy Ann Tucker and Others on behalf of the Narnoobinya Family Group (WC97/40, registered from 4 June 1997) (Narnoobinya native title party); and
·Ollan Dimer and Others on behalf of Ngadju (WC99/2, registered from 28 September 2000)(Ngadju native title party)
On 26 February 2001 the Narnoobinya native title party lodged an objection to the expedited procedure statement in relation to the proposed licences (designated WO01/65). No objection was lodged on behalf of the Ngadju native title party. On 7 December 2001, the Tribunal made a consent determination that the expedited procedure should not apply and the proposed licences became subject to the right to negotiate. On 18 July 2007 the Government party referred negotiations in relation to the proposed licences for Tribunal mediation assistance pursuant to s 31(3) of the Act and I was appointed as the Member to conduct that mediation. Mediation was finalised on 28 September 2007 on the basis that agreement had been reached between the negotiation parties. On 20 November 2007 in accordance with s 41A of the Act a s 31(1)(b) (‘State Deed’) was lodged with the Tribunal in relation to the proposed licences, executed by the grantee party, the government party and the Narnoobinya native title party.
On 29 February 2008, being a date more than six months after the s 29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) on behalf of the Ngadju native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The applicant sought a consent determination on the basis that an ancillary agreement had been reached between the grantee party and the Ngadju native title party but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) had not been executed by the persons comprising the native title applicant. Notwithstanding my prior appointment as Member for the associated s 31(3) mediation, parties have agreed to my appointment as Member for the s 35 Inquiry on the basis that a consent determination is sought.
Appended to the application is minute of a consent determination in the following terms executed by Mr Murray Hutchings as representative of the Ngadju native title party, and subsequently by Ms Caroline Ngunjiri as representative of the grantee party and Mr Jeff O’Halloran of State Solicitor’s Office for 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 Exploration Licences 63/707 and 63/708 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. GLSC is the recognised representative body under the Act for the Ngadju 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
The basis on which GLSC believes it is authorised to bring a consent determination application on behalf of the Ngadju native title party is set out in the affidavit of Murray William Hutchings, forwarded to the Tribunal on 31 March 2008 and later sworn on 16 April 2008. The affidavit refers to the proposed licences (amongst others the subject of other future act determination applications) and is as follows:
‘1. I am a solicitor employed by the Goldfields Land and Sea Council (“GLSC”)
2. I mainly work in the area of Future Acts….
5. Annexed hereto and marked “B” is copy of an affidavit dated 11th May 2006 (“the previous affidavit”).
6. The previous affidavit details the difficulties encountered in obtaining the signatures of all Ngadju People Applicants to sign the State Deed and the procedure that I followed to obtain the consent of the majority of the Applicants to proceed to consent determinations….
9. Following the outcomes achieved at the working party meting held on 23 November 2005 and as a result of my telephone conversation with the majority of Ngadju Applicants on 23 August 2007 I believe that I have the authority to bring applications to seek that determinations be made in the terms of the consent applications.’
The annexed affidavit of Mr Murray Hutchings dated 11 May 2006 has been detailed in Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/15 [2006], NNTTA 59 (17 May 2006), Daniel O’Dea at paragraph [12] (‘WF05/15’).
On 1 April 2008 I convened a hearing at which all parties were represented, confirmed their consent in the terms sought and agreed that the inquiry could proceed on the papers pending the lodgement of Mr Hutching’s affirmed affidavit.
The Tribunal has previously accepted the difficulties in obtaining signatures of the Ngadju named applicants to a State Deed as a legitimate basis for seeking a consent determination (WF05/15) and I adopt the relevant findings from that determination notably paragraph [14] in relation to the responsibilities of the GLSC 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 that appropriate consent has been given to the determination by the Ngadju native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licences E63/707 and E63/708 to Heron Resources Ltd, may be done.
Daniel O’Dea
Member
17 April 2008
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