Ollan Dimer and Others on behalf of the Ngadju People/Western Australia/Peter Romeo Gianni

Case •

[2007] NNTTA 75

•

29 August 2007

NATIONAL NATIVE TITLE TRIBUNAL

Ollan Dimer and Others on behalf of the Ngadju People/Western Australia/Peter Romeo Gianni, [2007] NNTTA 75 (29 August 2007)

Application No:        WF07/22

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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Peter Romeo Gianni (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 exploration licence – 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          Ms Grace Tan, Central 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:              Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

  1. On 1 February 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of Exploration Licence E15/870 (‘the proposed licence’) under the Mining Act 1978 (WA) to Peter Romeo Gianni (‘the grantee party’).

  2. The native title party in respect of these proceedings is:

Arthur Dimer (dec.), Betty Bullen, Georgina Schultz (dec.), Jack Schultz, John Walter Graham, Katie Ray, Mabel Wilson, Maureen Young (dec.), Ollan Dimer and Sonny Graham on behalf of Ngadju People (WC99/2 – registered from 28 September 2000).

  1. The proposed licence, as given notice under s 29 of the Act is located 39 kilometres Easterly of Kambalda in the City of Coolgardie/Kalgoorlie-Boulder, encompassing and area of 82.13 square kilometres.

  2. The proposed licence is 100 per cent overlapped by the registered claim of the native title party.

  3. 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. The native title party requested that the future act determination application be made by consent.

  4. Appended to the s 35 consent determination application was a Department of Industry and Resources (”DoIR”) Tengraph Quick Appraisal denoting the area of the proposed licence as 2638.13ha. This represents a reduction in the area given notice under s 29 of the Act [see para 3] of 82.13 square kilometres. On request from the Tribunal the DoIR provided Tengraph Quick Appraisal and maps of the area of the proposed licence upon lodgement of the tenement application with DoIR and the area upon grant. The area upon lodgement is shown as 8213.91ha and the area upon grant as 2638.13ha. The DoIR then provided Tengraph information identifying the change in the boundary of the proposed licence as amended on 22 December 2005.

  5. The Tengraph Quick Appraisal information upon lodgement of the proposed licence application shows the native title areas affected as Ngadju (WC99/2) and Central East Goldfields (WC99/30). The amendment to the boundary of the proposed licence on 22 December 2005 meant that it fell exclusively within Ngadju (WC99/2) and had no overlap with Central East (WC99/30).

  6. A minute of consent determination was annexed to the s 35 determination application in the following terms and executed by Mr Murray Hutchings, solicitor, on behalf of the native title party and subsequently executed by Mr Peter Gianni 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 Exploration Licence 15/870 may be done’

  7. 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.

  8. 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).

  9. 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

  1. On 24 August 2007 the Tribunal conducted a hearing at which the native title party was represented by Mr Hutchings, Mr Domhnall McCloskey and Mr David Crabtree represented the Government party. The grantee party was represented by Ms Grace Tan from Central Tenement Services. All parties confirmed their consent to the determination in the terms sought.

Findings

  1. On the basis of the consent minute, Mt 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

  1. By consent the determination of the Tribunal is that the acts, namely the grant of Exploration Licence E15/870 to Peter Romeo Gianni, may be done.

Daniel O’Dea
Member

29 August 2007

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