William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia

[2009] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia, [2009] NNTTA 59 (22 June 2009)

Application No:              WF09/10

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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Tito Pesce (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O'Dea, Member

Place:  Perth
Date:  22 June 2009

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

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

Mining Act1978 (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

Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006) Daniel O’Dea

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 C J Sumner

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

Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja; Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd; Flamestar Corporation Pty Ltd, WF08/1 [2008] NNTTA 9 (25 January 2008) Hon C J Sumner

Hearing date:                  12 June 2009

Representative for the    Ms Maryse Aranda, South West Aboriginal Land and Sea Council

native title party:            

Representative for the     Mr Alan Lush, Tito Pesce

grantee party:  

Representatives for the  Mr Rod Wahl, State Solicitors Office

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

REASONS FOR FUTURE ACT DETERMINATION

1. On 28 March 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 mining lease M70/1173 (‘the proposed lease’) under the Mining Act1978 (WA) to Tito Pesce (‘the grantee party’).

2. The proposed lease comprises an area of 2.70 hectares and is located 13 kilometres south-westerly of Manjimup in the Shire of Manjimup. The proposed lease 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 of this proceeding is William Webb and Others on behalf of the South West Boojarah #2.

4. On 19 May 2009, 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 lease ('the application') and requested that the future act determination be made by consent.

5. Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Richard Hickson on behalf of the native title party. The minute was later executed by Mr Rod Wahl (State Solicitor’s Office) on behalf of the Government Party and by Mr Alan Lush 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 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 70/1173 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. 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).

5. 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. The parties have finalised the terms of an agreement however not all of the registered native title claimants are available to execute the agreement.

   2. 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 Native Title Act.

   3.The Native Title Party consents to the proposed act being done, that is the grant of Mining Lease 70/1173 the subject of this consent determination. Tito Pesce and the Native Title Party confirm that an Agreement has been reached between them and the Grantee Party agrees to abide by the provisions of that agreement and that Mining Lease 70/1173 can therefore be granted in pursuance to the consent determination’

6. As a result of logistical difficulties precluding the execution of State Deeds as mentioned in s 31(1)(b) of the Act by the native title party, the Tribunal must consider whether the matter can be resolved by way of consent determination.

The inquiry

1. On 12 June 2009, a hearing was conducted at which all parties were represented.  Ms Maryse Aranda, Legal Officer from SWALSC represented the native title party, Mr Alan Lush represented the grantee party, and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party.

Findings

1. At the hearing the Government, grantee and native title party confirmed their consent to the determination in the terms sought.  Ms Aranda confirmed that consent was given at the working group meeting held on 19 February 2009.

2. The affidavit of Ms Aranda, Senior Legal Officer of SWLASC sworn on 3 June 2009 and filed with the Tribunal on 4 June 2009 attests that instructions were obtained from the native title party at the working party meeting held on 19 February 2009.  The affidavit of Ms Aranda confirms that the native title party consents to the determination being made in relation to the proposed lease.  A copy of the native title party resolution is attached as ‘Exhibit A’ to Ms Aranda’s affidavit.

3. The Tribunal accepts logistical difficulties in obtaining the signatures of all members of an applicant group as a legitimate basis for seeking a consent determination  (see Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006) Daniel O’Dea; Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja; Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd; Flamestar Corporation Pty Ltd, WF08/1 [2008] NNTTA 9 (25 January 2008) Hon C J Sumner).

4. Further, the Tribunal has on numerous occasions held that a native title party is all the named applicants 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 C J 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 lease and consent to a determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining lease M70/1173 to Tito Pesce, may be done.

Daniel O'Dea
Member
22 June 2009