Ollan Dimer and Others on behalf of the Ngadju/Western Australia/ Alan Joseph McGrath
[2008] NNTTA 29
•7 March 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ollan Dimer and Others on behalf of the Ngadju/Western Australia/ Alan Joseph McGrath, [2008] NNTTA 29 (7 March 2008)
Application No: WF08/4
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 (WC99/2) (Applicant/native title party)
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The State of Western Australia (Government party)
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Alan Joseph McGrath (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 7 March 2008
Catchwords: Native title – future act – application for determination for the grant of mining lease – logistical difficulties – agreement executed by the native title party and the grantee party – native title party as a whole 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), Daniel O’Dea
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 and Others on behalf of the Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd, NNTT WF07/11 [2007] NNTTA 65 (7 August 2007), Daniel O’Dea
Hearing date: 7 March 2008
Counsel for the
native title party: Mr Murray Hutchings
Grantee party: In Person
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 1 December 2004, 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 mining lease M63/559 (‘the proposed lease’) under the Mining Act 1978 (WA) to Alan Joseph McGrath (‘the grantee party’).
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, Sonny Graham on behalf of Ngadju (WC99/2 – registered from 28 September 2000), (‘native title party’).
The proposed lease is located 6km Southerly of Norseman in the Shire of Dundas, comprises an area of 16.71 hectares and is 100 per cent overlapped by the registered claim of the native title party.
On 13 February 2008, 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 be made by consent.
Appended to the s 35 application is a minute of consent determination in the following terms executed by Mr Murray Hutchings, on behalf of the native title party and by Mr Alan McGrath for the grantee party. The minute was subsequently executed by 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 Lease 63/559 may be done.’
The reasons for seeking a consent determination are attached to the s 35 application in the form of an affidavit of Mr Hutchings, sworn on 13 February 2008 and an Annexure to that affidavit being another affidavit sworn by Mr Hutchings on 11 May 2006 (‘previous affidavit’). Mr Hutchings attests to the practical and logistical difficulties of obtaining the necessary signatures of all the living Applicants when they are widely dispersed across the region. In addition, Mr Hutchings deposes in paragraph 7 of his affidavit sworn on 13 February 2008 that:
‘7.Following the outcomes achieved at the working party meeting held on 23 November 2005 I believe that I have the authority to bring applications to seek that determinations be made in terms of the consent applications. I have contacted the majority of the surviving Ngadju people Applicants and each one has given me the authority to proceed to a Consent Determination for the subject matter of this Consent Determination (M63/559).’
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), Daniel O’Dea; 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 and Others on behalf of the Ngadju People/Western Australia/Kinross Gold Australia Pty Ltd, NNTT WF07/11 [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 7 March 2008 the Tribunal conducted a hearing at which Mr Hutchings appeared for the native title party, Mr Wahl and Ms Mitchell for the Government party, the grantee party in person. All parties confirmed their consent to the determination in the terms sought.
Findings
On the basis of the consent minute, the information contained in the affidavit of Mr Hutchings and his authority which was confirmed at the hearing on 7 March I am satisfied that the native title party has consented to the doing of the act. I rely on the reasons set out in paragraph 12 of 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), Daniel O’Dea.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease M63/559 to Alan Joseph McGrath, may be done.
Daniel O’Dea
Member
7 March 2008
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