Ollan Dimer and Others on behalf of the Ngadju People/Western Australia/Australian Healthcare Technology Ltd
[2007] NNTTA 76
•29 August 2007
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of the Ngadju People/Western Australia/Australian Healthcare Technology Ltd, [2007] NNTTA 76 (29 August 2007)
Application No: WF07/23
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 the Ngadju People (WC99/2) (native title party)
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The State of Western Australia (Government party)
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Australian Healthcare Technology Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 29 August 2007
Catchwords: Native title – future act – application for determination for the grant of mining leases – logistical difficulties – ancillary agreement executed by grantee party and native title 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
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
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), Hon C J Sumner
Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd NNTT WF06/72 and WF06/73 [2006] NNTTA 134 (12 October 2006), Daniel O’Dea
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, NNTT WF06/74 [2006] NNTTA 135 (12 October 2006), Daniel O’Dea
Ollan Dimer on behalf of the Ngadju People/ Australian Gold Resources Ltd/Western Australia, NNTT WF07/3 [2007] NNTTA 49 (29 May 2007), Daniel O’Dea
Ollan Dimer on behalf of the Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd, [2007] NNTTA 65 (7 August 2007), Daniel O’Dea.
Representative of the Mr Eamon Cornelius, Western Tenement Services
grantee party:
Representative of the Mr Murray Hutchings, Goldfields Land and Sea Council
native title party:
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘The Act’) of the future acts being the grant of Mining Leases M63/293 and M63/294 (‘the proposed leases’) under the Mining Act 1978 (WA) to Capricorn Resources Australia NL. Details of the proposed leases include the following:
On 28 February 1996 notice was given for Mining Lease M63/293. The area is 0.075ha and located 125 kilometres West of Norseman in the Shire of Dundas. The proposed lease overlaps 77.6 per cent of the registered claim of the Ngadju People (WC99/2).
On 13 March 1996 notice was given for Mining Lease M63/294. The area is 0.01ha and located 120 kilometres West of Norseman in the Shire of Dundas. The proposed lease is overlapped 100 per cent by the Ngadju People (WC99/2).
On 22 August 2001 Capricorn Resources Australia NL registered a change of company name reflected in the Department of Industry and Resources database to B2B.Net Technology NL. On the same day B2B.Net Technology NL registered a change of company name to B2B.Net Technology Ltd. On 5 December 2003 B2B.Net Technology Ltd registered a company name change to Australian Healthcare Technology Ltd (‘the grantee party’).
The native title party in respect of these proceedings is:
Arthur Dimer (deceased), Betty Bullen, Georgina Schultz (deceased), Jack Schultz, John Walter Graham, Katie Ray, Mabel Wilson, Maureen Young (deceased), Ollan Dimer and Sonny Graham on behalf of Ngadju People (WC99/2 – registered from 28 September 2000).
On 6 August 2007, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed leases. It is stated in paragraph 10 of the application that an Agreement has been reached between the grantee party and the native title party and that the grantee party has agreed to abide by the provisions of the agreement. As a consequence the native title party requested that the future act determination be made by consent on the basis that ‘logistical difficulties’ preclude arrangements for the native title party to execute a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). An affidavit of Mr Murray William Hutchings, Solicitor for the Goldfields Land and Sea Council, sworn on 23 August 2007 supported the application (‘Mr Hutchings’ affidavit’).
Appended to the application is a minute of a consent determination provided in the following terms, executed by Mr Hutchings, on behalf of the native title party, and subsequently by Mr Eamon Cornelius for the grantee party and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of 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 Mining Leases 63/293 and 63/294 may be done’
The reasons for seeking a consent determination are set out in Mr Hutchings’ affidavit and an Annexure to that affidavit being another affidavit sworn by Mr Hutchings on 11 May 2006 and attesting to the practical difficulties of obtaining the necessary signatures of all the living applicants when they are widely dispersed across the region.
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).
This matter has much in common with previous consent determination applications brought by the native title party (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), Hon C J Sumner; Ollan Dimer and Others on behalf of Ngadju/Western Australia/Mawson West Ltd; PlatX Ltd NNTT WF06/72 and WF06/73 [2006] NNTTA 134 (12 October 2006), Daniel O’Dea; 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, NNTT WF06/74 [2006] NNTTA 135 (12 October 2006), Daniel O’Dea; Ollan Dimer on behalf of the Ngadju People/ Australian Gold Resources Ltd/Western Australia, NNTT WF07/3 [2007] NNTTA 49 (29 May 2007), Daniel O’Dea; Ollan Dimer on behalf of the Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd, [2007] NNTTA 65 (7 August 2007), Daniel O’Dea. In summary, determination by consent is sought due to logistical difficulties experienced in locating the Applicants for execution of agreements to be entered into by the native title party collectively.
The Inquiry
On 24 August 2007 the Tribunal conducted a hearing at which the native title party was represented by Mr Hutchings, Mr Domhnall McCloskey and Ms Faye Mitchell represented the Government party and Mr Eamon Cornelius who represents the grantee party could not be contacted. All parties present confirmed their consent to the determination in the terms sought.
Findings
On the basis of the consent minute, Mr Hutchings’ affidavit and reiteration of Mr Hutchings’ belief as to his authority at the hearing on 24 August, I am satisfied that appropriate consents have been given.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of Mining Leases M63/293 and M63/294 to Australian Healthcare Technology Ltd, may be done.
Daniel O’Dea
Member
29 August 2007
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