Ollan Dimer and Others on behalf of Ngadju/Western Australia/Pangolin Resources Pty Ltd

[2008] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Ollan Dimer and Others on behalf of Ngadju/Western Australia/Pangolin Resources Pty Ltd, [2008] NNTTA 51 (17 April 2008)

Application No: WF08/7

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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Pangolin Resources Pty 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 prospecting 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 Grace Tan, Central Tenement Services

REASONS FOR FUTURE ACT DETERMINATION

1. On 13 July 2005 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of prospecting licences P63/1310 and P63/1311 (‘the proposed licences’) under the Mining Act 1978 (WA) to Pangolin Resources Pty Ltd (‘the grantee party’).

2. P63/1310 and P63/1311 are 100 per cent overlapped by the Ngadju native title claim (WC99/2, registered from 28 September 2000) and are located in the Shire of Dundas some 20 and 21 kilometres southerly of Norseman comprising 180.97 and 181.09 hectares respectively.

3. The native title party with respect to these proceedings is Ollan Dimer and Others on behalf of Ngadju (WC99/2, registered from 28 September 2000).

4. 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 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 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.

5. Appended to the application is minute of a consent determination in the following terms executed by Mr Murray Hutchings as representative of the native title party, and subsequently by Ms Grace Tan 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 Prospecting Licences 63/1310 and 63/1311 may be done.’

6. 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 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

1. The basis on which GLSC believes it is authorised to bring a consent determination application on behalf of the 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 11^th 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.’

2. 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’).

3. 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.

4. 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 native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Prospecting Licences P63/1310 and P63/1311 to Pangolin Resources Pty Ltd, may be done.

Daniel O’Dea
Member

17 April 2008