William Webb and Others on behalf of South West Boojarah #2/Peter Michael Johnson/State of Western Australia

[2010] NNTTA 130

NATIONAL NATIVE TITLE TRIBUNAL

William Webb and Others on behalf of South West Boojarah #2/Peter Michael Johnson/State of Western Australia, [2010] NNTTA 130 (13 August 2010)

Application No:              WF10/14

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a Future Act Determination Application

William Webb and Others on behalf of South West Boojarah #2 (WC06/4)
(Applicant/native title party)

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Peter Michael Johnson (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O'Dea, Member

Place:  Perth
Date:  13 August 2010

Catchwords:        Native title - future act - application for determination for the grant of exploration licence - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38

Mining Act 1978 (WA)

Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385

Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182

Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon Christopher Sumner, Deputy President

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

William Webb and Others on behalf of South West Boojarah #2/Red Mountain Energy Pty Ltd/State of Western Australia, NNTT WF09/26 [2009] NNTTA 158 (27 November 2009) Daniel O’Dea, Member

William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia, NNTT WF09/10 [2009] NNTTA 59 (22 June 2009) Daniel O’Dea, Member

William Webb and Others on behalf of South West Boojarah #2/ERM Gas Pty Ltd/State of Western Australia, NNTT WF09/15 [2009] NNTTA 59 (12 August 2009) Daniel O’Dea, Member

Hearing date:                  n/a

Representative for the    Ms Maryse Aranda

native title party:            South West Aboriginal Land and Sea Council

Representative for the    

grantee party:                 Mr Peter Del Fante, Corporate Tenement Services

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

Government party:         Ms Faye Mitchell, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 12 September 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence 70/3079 (‘the proposed licence’) under the Mining Act 1978 (WA) to Peter Michael Johnson (‘the grantee party’).

2. The proposed licence comprises an area of 5.71 square kilometres located approximately 21 kilometres east of Busselton within the Shire of Busselton.  It is 100 per cent overlapped by the registered claim of the South West Boojarah #2 (WC06/4 – registered from 6 October 2006).

3. The native title party with respect to this proceeding is William Webb and Others on behalf of the South West Boojarah #2.

4. On 26 July 2010, 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 determination under s 38 of the Act in relation to the proposed licence ('the application') and requested that the future act determination be made by consent.

5. Appended to the application is a minute of consent determination in the following terms executed by Maryse Aranda on behalf of the native title party.  The minute was later executed by Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party and by Peter Del Fante on behalf of the grantee party:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF

   THE NATIVE TITLE ACT 1993 (CTH)

   1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act1993.

   2.The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of section 31(1)(b) of the Native Title Act1993.

   3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 70/3079 may be done.’

6. 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. South West Aboriginal Land and Sea Council (‘SWALSC’) is the recognised representative body under the Act for the native title party and represents the native title party 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).

7. Paragraph 10 of the application explains why a consent determination is sought:

   ‘1. The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act.

   2.The native title party consents to the proposed act being done, that is the grant of Exploration Licence 70/3079 the subject of this consent determination.  Peter Michael Johnson and the native title partyy [sic] confirm that a Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licence 70/3079 can therefore be granted in pursuance to the consent determination.’

8. A further communication from Ms Aranda to the Native Title Tribunal dated 11 August 2010 confirms that the reason a consent determination is sought is that there are logistical difficulties in arranging for the Native Title Party to execute a State Deed in respect of the tenements sought by the Grantee Party by section 31(1)(b) of the Act.

9. Also provided to the Tribunal is the affidavit of Ms Maryse Aranda, Senior Legal Officer of SWALSC sworn on 10 August 2010 in which she deposes that the working group of the native title party resolved to give permission for the grant of the proposed licence to the grantee party. Ms Aranda further deposes to instructions to withdraw any objections to the licences and support any application under section 35 of the Act for a determination that the proposed licence be granted.

10. The SWALSC has applied for a consent determination in order to fulfil their instructions from the native title party as the SWALSC has stated that logistical difficulties have prevented signatures of all persons comprising the native title party being gathered on a State Deed. The Government party will be unable to grant the proposed licence until a State Deed is signed by all relevant signatories or a determination pursuant to section 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed licence) may be done.

The Inquiry

1. On the basis of the information contained in the application, affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.

Findings

1. The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title party applicant on the basis of an affidavit from its legal representative (see William Webb and Others on behalf of South West Boojarah #2/Red Mountain Energy Pty Ltd/State of Western Australia, NNTT WF09/26 [2009] NNTTA 158 (27 November 2009) Daniel O’Dea; William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia, NNTT WF09/10 [2009] NNTTA 90 (22 June 2009) Daniel O’Dea; William Webb and Others on behalf of South West Boojarah #2/ERM Gas Pty Ltd/State of Western Australia, NNTT WF09/15 [2009] NNTTA 59 (12 August 2009) Daniel O’Dea).

2. Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon Christopher Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed licence and consents to a determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence 70/3079 to Peter Michael Johnson, may be done.

Daniel O'Dea
Member
13 August 2010