Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd
[2006] NNTTA 134
•12 October 2006
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd [2006] NNTTA 134 (12 October 2006)
Application Nos: WF06/72 and WF06/73
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) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Mawson West Ltd (WF06/72)
Platx Ltd (WF06/73)
(grantee parties)
FUTURE ACT DETERMINATIONS
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 12 October 2006
Catchwords: Native title — future acts — applications for determination for the grant of prospecting and 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 acts 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 Ms Grace Tan, Central Tenement Services (WF06/72)
grantee parties: Mr Chris Clegg, Statewide Tenement and Advisory Services (WF06/73)
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATIONS
Background facts
The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the following future acts being the grant of prospecting and exploration licences ('the proposed licences') to the specified grantee parties which are the subject of the future act determination applications (‘the applications’).
WF06/72
Prospecting licences P63/1233-1247 and P63/1254 to Mawson West Ltd on 12 January 2005. The proposed licences are located 27 and 18 kilometres southerly of Norseman in the Shire of Dundas and the sizes are as follows:
· P63/1233 – 200 hectares
· P63/1234 – 198.9 hectares
· P63/1235 – 193.93 hectares
· P63/1236 – 200 hectares
· P63/1237 – 198.26 hectares
· P63/1238 – 197.53 hectares
· P63/1239 – 166.46 hectares
· P63/1240 – 166.4 hectares
· P63/1241 – 200 hectares
· P63/1242 – 160.59 hectares
· P63/1243 – 184.04 hectares
· P63/1244 – 192.29 hectares
· P63/1245 – 199.9 hectares
· P63/1246 – 199.96 hectares
· P63/1247 – 102.46 hectares
· P63/1254 – 54.42 hectares
WF06/73
Exploration licence E63/924 to Platx Ltd on 5 October 2005. The proposed licence is located 36km northerly of Norseman in the Shires of Coolgardie and Dundas and comprises 69.91 square kilometres.
The native title party with respect 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)
Each of the proposed licences is 100 per cent overlapped by the registered claim of the native title party.
On 25 August 2006, being a date more than six months after the s 29 notice was given the native title party made applications pursuant to s 35 of the Act for future act determinations under s 38. The native title party requested that the future act determinations be made by consent. Parties later produced minutes for consent determination executed by each of their representatives as confirmation of consent.
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).
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 these applications and states at paragraph 6 and 7:
Attached hereto and marked "B" is a copy of an affidavit signed by Murray William Hutchings and dated 11th May 2006. ("the previous affidavit").
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."
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 that determination.
The inquiry and findings
Given the reasons for seeking a consent determination were explored in Heron Resources, I sought submissions from 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.
I adopt the findings at paragraph 12 of Heron Resources and am satisfied that the native title party has consented to the determinations.
Determinations
By consent the determinations of the Tribunal are that the acts being the grants of the following prospecting and exploration licences may be done.
· P63/1233, P63/1234, P63/1235, P63/1236, P63/1237, P63/1238, P63/1239, P63/1240, P63/1241, P63/1242, P63/1243, P63/1244, P63/1245, P63/1246, P63/1247 and P63/1250 to Mawson West Ltd
· E63/924 to Platx Ltd
Daniel O'Dea
Member
12 October 2006
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