Violet Drury &Others on behalf of the Nanda People/Waygood Pty Ltd/Western Australia

[2006] NNTTA 21

NATIONAL NATIVE TITLE TRIBUNAL

Violet Drury &Others on behalf of the Nanda People/Waygood Pty Ltd/Western Australia, [2006] NNTTA 21 (9 March 2006)

Application No:        WF06/9

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

Violet Drury & Others on behalf of the Nanda People (Applicant/ native title party)

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Waygood Pty Ltd (Grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  9 March 2006

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – named applicants not signed agreement – 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 31(1)(b), 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date: 9 March 2006

Counsel for the                    Ms Helen Lawrence, Yamatji Land and Sea Council
native title party:                 Ms Tess Burton, Yamatji Land and Sea Council

Representative of the

grantee party:  Mr Daniel Matich, D & L Tenement Services

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:              Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 12 January 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 E70/2691 (‘the proposed licence’) under the Mining Act 1978 (WA) to Waygood Pty Ltd (‘the grantee party’). The proposed licence comprises an area of some 91.34 square kilometres, 22 kilometres North-easterly of Kalbarri in the Shire of Northampton.

2. The native title party with respect to these proceedings, and the extent to which its registered claim overlaps the proposed licence, is as follows:

   ·     Mr Barry Randall, Mr Bevan Drage, Mr Bill Mallard, Mr Clive Mallard, Mr Noel Kelly, Mr Steven Kelly, Mr William Mallard, Ms June Ruffin, Ms Lorna Lewis, Ms Lorraine Whitby, Ms Mary Tullock, Name Withheld for Cultural Reasons, Ms Phyllis McMahon and Ms Violet Drury (on behalf of Nanda) – 100% overlap.

3. On 15 February 2006, being a date more than six months after the s 29 notice was given the Yamatji Land and Sea Council (the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation) (‘Yamatji’) made an application pursuant to s 35 of the Act for a future act determination under s 38 on behalf of the native title party.

4. The native title party requested that the future act determination be made by consent. The Tribunal has before it a minute of consent determination in the following terms, executed by Ms Helen Lawrence (Yamatji solicitor) on behalf of the native title party, Mr David Matich on behalf of 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 70/2691 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. Yamatji is the recognised representative body under the Act for the area of the native title party’s claim and solicitors employed by it have represented them in these proceedings. 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).

5. Paragraph 10 of the s 35 application states the following in describing why a consent determination is being sought:

   ‘The parties reached agreement about the act at a Nanda working group meeting held in Geraldton on 4th November 2005.  The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed in a timely manner.

   The claim covers an area of some 26,000 square kilometres.  The Applicants do not all live centrally, being located as far apart as Carnarvon, Geraldton and Perth. The time and costs involved in obtaining the signatures of all the Applicants is significant, and would be prohibitive if undertaken for every future act determination.

   The Native Title Party consents to the proposed act being done, that is the grant of licence E70/2691 pursuant to the terms of an agreement between the Native Title Party and the Grantee dated 15th February 2006.

   The YLSC is satisfied that the Native Title Party collectively consents to the determination, as evidenced by the resolution of the working group meeting of 4th November 2005.’

6. Because, for the reasons specified above, persons who comprise the native title party have not signed the heritage agreement or State Deed this matter cannot be concluded by way of s 31 agreement.  It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.

The inquiry

1. On 9 March 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought.  Ms Helen Lawrence, counsel for the native title party, advised she was satisfied that the facts set out in para 10 of the application were correct and that she and Yamatji had been properly instructed by the native title party to consent to the determination.  The Tribunal was also informed that the heritage agreement signed by the grantee party is based on the Regional Standard Heritage Agreement for exploration endorsed by Yamatji, the Government party and industry with some modifications.

2. As the designated representative body under the Act, Yamatji has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E70/2691 to Waygood Pty Ltd, may be done.

Hon C J Sumner
Deputy President
9 March 2006