Ollan Dimer on behalf of the Ngadju People/Australian Gold Resources Ltd/Western Australia

[2007] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Ollan Dimer on behalf of the Ngadju People/Australian Gold Resources Ltd/Western Australia, [2007] NNTTA 49 (29 May 2007)

Application No:        WF07/3

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 on behalf of the Ngadju People (WC99/2) (Ngadju native title party)

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Australian Gold Resources Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                  Daniel O’Dea, Tribunal Member

Place:    Perth
Date:     29 May 2007

Catchwords: Native title — future act — application for determination for the grant of exploration licence — s.31(1)(b) agreement executed — logistical difficulties preclude execution of State Deed by all named claimants — native title party as a whole consent to the determination — consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss. 29, 31(1)(b), 35, 38, 203B

Mining Act 1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner

Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner

Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006), Member Sosso

Hearing date:                  21 May 2007

Counsel for the

native title party:             Mr Murray Hutchings, Goldfields Land and Sea Council

Representative of the

grantee party:                 Mr Chris Clegg, Statewide Tenement & Advisory Services

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 9 December 2005 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 E15/620 (‘the proposed licence’) under the Mining Act 1978 (WA) to Australian Gold Resources Ltd.

2. 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 the Ngadju People (WC99/2 – registered from 28 September 2000).

3. The proposed licence is 8.74 square kilometers in extent, located 31 kilometres southerly of Widgiemooltha in the Shire of Coolgardie, and is 100 per cent overlapped by the Ngadju native title claim.

4. On 30 March 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 licence. Paragraph 10 of the application refers to the affidavit of Murray William Hutchings, Solicitor for the Goldfields Land and Sea Council (‘GLSC’) which is the representative body for native title claimants in the Goldfields region pursuant to s.203B of the Act and is instructed to act on behalf of the native title party. The affidavit was sworn on 11 May 2006 and asserts that the native title party consent to a future act determination that the act may be done. Provided at Attachment A of the affidavit is also an affidavit of Murray William Hutchings, sworn 30 March 2007, in which it is deposed that there are logistical difficulties precluding the Ngadju native title party executing a State Deed (being an agreement in the form of a s.31(1)(b) agreement as contemplated by the Act. It is stated that at a meeting of the elected negotiation team of the Ngadju People held on 23 November 2005 it was agreed that the GLSC sign consent determinations on behalf of the Ngadju claimant group in relation to exploration and prospecting licences only. No further information detailing the logistical difficulties or the authority of the negotiating team is provided.

5. Appended to the s.35 determination application is a minute of a consent determination in the following terms, subsequently executed by Mr Murray Hutchings for and on behalf of the native title party, Mr Chris Clegg on behalf of Australian Gold Resources Ltd, and by Mr Rod Wahl (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 Parties 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 15/620 may be done.’

4. 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.  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. On 21 May 2007, the Tribunal conducted a hearing.  Mr Murray Hutchings from the GLSC appeared as counsel for the native title party, Mr Chris Clegg represented the grantee party and Mr David Crabtree appeared for the Government party.  Mr Hutchings confirmed that the native title party consented to the determination in the terms sought and the Government and grantee parties each affirmed their consent.

Findings

1. On the basis of the information contained in the affidavit of Mr Hutchings I am satisfied that the native title party has consented to the doing of the act in accordance with the agreement they have entered into with the grantee party.  The Tribunal must consider the particular facts and circumstances of each particular matter when making a consent determination where not all the persons comprising the applicant have signed the document. The law in relation to these matters is set out  in Angus Abdullah & Others on behalf on Njamal/BGC Contracting Pty Ltd/Western Australia (2006) NNTTA 14 (16 February 2006) and recently in Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland [2006] NNTTA 61 (19 May 2006). As there is nothing to suggest the contrary, the Tribunal is entitled to accept the evidence of GLSC’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, I am satisfied that the native title party has consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E15/620 to Australian Gold Resources Ltd, may be done.

Daniel O’Dea

Member

29 May 2007