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

Case •

[2006] NNTTA 124

•

22 August 2006

NATIONAL NATIVE TITLE TRIBUNAL

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, [2006] NNTTA 124 (22 August 2006)

Application No:        WF06/52

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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Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group (WC97/40) (Narnoobinya native title party)

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The State of Western Australia (Government party)

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Heron Resources Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:                  Daniel O’Dea, Tribunal Member

Place:    Perth
Date:     22 August 2006

Catchwords: Native title — future act — application for determination for the grant of exploration licences — deceased registered native title claimants — no valid native title party — s.31(1)(b) agreement executed — logistical difficulties preclude execution of a State Deed — 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), 41A(1)(a), 35, 38, 62A, 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

Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/16 [2006] NNTTA 69 (8 June 2006), Member O’Dea

James Dimer on behalf of the Esperance Nyungar People/Paul Winston Askins, James Ian Stewart/Western Australia, [2006] NNTTA 70 (8 June 2006), Member O’Dea

Hearing date:                  18 August 2006

Counsel for the

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

Representative of the

grantee party:                 Ms Tracy Browning, Heron Resources Ltd

Representatives of the    Mr Rod Wahl, State Solicitor’s Office

Government party:         Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

  1. On the following dates the Government party gave notice under s.29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences listed below (‘the proposed licences’) under the Mining Act 1978 (WA) to Heron Resources NL.

    ·30 June 1999 – E69/1473, E69/1474, E69/1475, E69/1476, E69/1477, E69/1478, E69/1479, E69/1480, E69/1481 and E69/1482;

    ·25 August 1999 – E69/1492 and E69/1493; and

    ·20 October 1999 – E69/1495, E69/1499 and E69/1500.

  2. On 9 January 2002 the Government party gave notice under s.29 of the Act of a future act, namely the grant of exploration licence E69/1717 under the Mining Act 1978 (WA) to Heron Resources Ltd. Henceforth E69/1717 and licences notified as above are collectively described as the proposed licences.

  3. On 12 April 2001 the Register of Mining Tenements held by the Department of Industry and Resources records that in the case of each proposed licence, with the exception of E69/1717, ownership was transferred from Heron Resources NL to Heron Resources Ltd (‘the grantee party’).

  4. The native title parties in respect of these proceedings are (or were):

    ·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) (‘the Ngadju native title party’);

    ·Dorothy Ann Tucker and Thelma Vera Tucker on behalf of the Narnoobinya Family Group (WC97/40 – registered from 4 June 1997) (‘the Narnoobinya native title party’); and

    ·James Dimer (deceased) and Malcolm Bullen (deceased) on behalf of the Esperance Nyungar native title claimants (WC96/64 – registered from 6 June 1996 to 19 March 1999 and then again from 16 July 1999) (‘the Esperance Nyungar native title party’).

  5. The area, location and extent to which each of the proposed licences is overlapped by each of the native title parties is as follows: 

    ·E69/1473 – 202.01 square kilometres, 59 kilometres south westerly of Balladonia in the Shire of Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1474 – 202.86 square kilometres, 33 kilometres westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1475 – 202.52 square kilometres, 44 kilometres westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1476 – 202.71 square kilometres, 18 kilometres north westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1477 – 202.74 square kilometres, 49 kilometres westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1478 – 201.85 square kilometres, 71 kilometres south westerly of Balladonia in the Shire of Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1479 – 202.35 square kilometres, 57 kilometres westerly of Balladonia in the Shires of Dundas and Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1480 – 201.56 square kilometres, 75 kilometres south westerly of Balladonia in the Shire of Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1481 – 138.34 square kilometres, 64 kilometres south westerly of Balladonia in the Shire of Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1482 – 83.74 square kilometres, 46 kilometres south westerly of Balladonia in the Shires of Dundas and Esperance – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1492 – 110.01 square kilometres, 13 kilometres westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1493 – 202.98 square kilometres, 26 kilometres north westerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties;

·      E69/1495 – 202.12 square kilometres, 122 kilometres south westerly of Balladonia in the Shire of Esperance – 39.21 per cent overlapped by the Ngadju and Narnoobinya native title parties and 60.79 per cent overlapped by the Esperance Nyungar native title party;

·      E69/1499 – 200.69 square kilometres, 112 kilometres south westerly of Balladonia in the Shire of Esperance – 77.66 per cent overlapped by the Ngadju and Narnoobinya native title parties and 22.34 per cent overlapped by the Esperance Nyungar native title party;

·      E69/1500 – 200.26 square kilometres, 125 kilometres easterly of Esperance in the Shire of Esperance – 0.53 per cent overlapped by the Ngadju and Narnoobinya native title parties and 99.47 per cent overlapped by the Esperance Nyungar native title party;

·      E69/1717 – 203.33 square kilometres, 40 kilometres northerly of Balladonia in the Shire of Dundas – 100 per cent overlapped by the Ngadju and Narnoobinya native title parties.

  1. On 13 July 2006, being a date more than six months after the s.29 notices were given, the Ngadju 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 both the Ngadju People and the Esperance Nyungar People. The affidavit was sworn on 12 July 2006 and asserts that the Ngadju native title party consent to a future act determination that the act may be done. Provided at Attachment B of the affidavit is also an affidavit of Murray William Hutchings, sworn 11 May 2006, 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). The salient points of this affidavit are quoted in my determination in Jack Schultz, John W Graham & Others on behalf of the Ngadju People/Pangolin Resources Pty Ltd/Western Australia, NNTT WF05/16 [2006] NNTTA 69 (8 June 2006) (‘Pangolin’) at paragraph [13].  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.  Further, there is no reference to the Esperance Nyungar native title party, whose claim also overlaps three of the proposed licence, and who are also represented by the GLSC.

  2. Appended to the s.35 determination application is a minute of a consent determination in the following terms executed by Mr Murray Hutchings for and on behalf of the Ngadju native title party, and subsequently executed by Mr Mathew Longworth on behalf of Heron Resources Ltd, and 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 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 Licences 69/1473-1482, 69/1492-1493, 69/1495, 69/1499-1500 & 69/1717875 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 18 August 2006, the Tribunal conducted a hearing.  Mr Murray Hutchings from the GLSC appeared as counsel for the Ngadju and Esperance Nyungar native title parties, Ms Tracy Browning represented the grantee party and Mr Rod Wahl and Mr David Crabtree appeared for the Government party.  At this hearing each of the parties concurred with my view as expressed in James Dimer on behalf of the Esperance Nyungar People/Paul Winston Askins, James Ian Stewart/Western Australia, [2006] NNTTA 70 (8 June 2006), Member O’Dea (‘Askins’) that with respect to the Esperance Nyungar claim group, because each of the person comprising the applicant is deceased, there can be no valid native title party.  In relation to the Ngadju native title party Mr Hutchings confirmed that it consented to the determination in the terms sought and the Government and grantee parties each affirmed their consent.

Findings

The Esperance Nyungar native title party

  1. In the Esperance Nyungar claim all the named applicants are deceased. In Askins I found (at [14]–[16]) that if there is no living applicant, there is no party empowered to act on behalf of the native title claim group which is essential to the process of dealing with ‘any matters arising under this Act’ (s.62A). I adopt those findings for the purposes of this determination. There currently exists no native title party who could attract or exercise the procedural rights available under the Act. In the circumstances, the Government may choose to proceed to grant the relevant tenement without the consent or agreement of the Esperance Nyungar group.

The Narnoobinya native title party

  1. On 14 June and 11 November 2005 copies of an agreement in the form of a s.31(1)(b) agreement ('State Deed') executed by the grantee and Government parties and the Narnoobinya native title party were lodged with the Tribunal by the Government party in accordance with s.41A(1)(a) of the Act. These agreements encompassed each of the proposed licences the subject of this application and Ms Dorothy Tucker, representative for the Narnoobinya native title party has since confirmed her consent to the doing of the acts. As a result there has been no necessity for the Narnoobinya native title party to take any part in proceedings.

The Ngadju native title party

  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 separately 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 Ngadju 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 licences E69/1473, E69/1474, E69/1475, E69/1476, E69/1477, E69/1478, E69/1479, E69/1480, E69/1481, E69/1482, E69/1492, E69/1493, E69/1495, E69/1499, E69/1500 and E69/1717 to Heron Resources Ltd, may be done.

Daniel O’Dea

Member

22 August 2006

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