Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Australasian Mining and Exploration Pty Ltd
[2006] NNTTA 87
•14 July 2006
NATIONAL NATIVE TITLE TRIBUNAL
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Australasian Mining and Exploration Pty Ltd, [2006] NNTTA 87 (14 July 2006)
Application No: WF06/24
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
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (Applicant/native title party)
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The State of Western Australia (Government party)
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Australasian Mining and Exploration Pty Ltd (Grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 14 July 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicants not signed state deed – logistical difficulties – Regional Standard Heritage Agreement executed by grantee party – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 41, 109, 203
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner
Hearing date: 14 July 2006
Representative of the
grantee party: Mr Phillip Hoff
Counsel for the Mr Malcolm O’Dell
native title parties: Ngaanyatjarra Council (Aboriginal Corporation)
Representatives of the Ms Cheryl Henry, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 4 June 2003, 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 E38/1472 (‘the proposed licence’) under the Mining Act 1978 (WA) to Australasian Mining and Exploration Pty Ltd (‘the grantee party’). The proposed licence comprises an area of some 33.72 square kilometres, and is located 168 kilometres Northerly of Cosmo Newberry Mission in the Shire of Wiluna.
The native title party with respect to these proceedings are Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (Claim No. WC99/24), and the registered claim entirely overlaps the proposed licence.
On 30 June 2006, being a date more than six months after the s.29 notice was given, Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the native title party, made an application pursuant to s.35 of the Act for a future act determination under s.38 ('the application'). The native title party requested that the future act determination be made by consent.
The application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’ for the proposed licence, executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently by Mr Phillip Hoff on behalf of the grantee party and Mr Trevor Creewel 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 the determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 38/1472 may be done’
The Tribunal has the 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. Ngaanyatjarra Council is the designated representative body under the Act for the native title party. 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).
Paragraph 10 of the application states the following in describing why a consent determination is being sought:
‘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 native title party consents to the proposed act being done, that is the grant of the Exploration Licence 38/1472 the subject of this consent determination. The grantee party and the native title parties confirm that a Standard Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that the Exploration Licence 38/1472 can therefore be granted in pursuance to the consent determination.
There are logistical difficulties in arranging for the Native Title Party to execute a State Deed and ancillary agreement in respect of each tenement sought by the Grantee Party as contemplated by s.31(1)(b) of the Native Title Act. These logistical difficulties include arranging for travel for a solicitor from the Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants on native title Claim Wiluna NNTT No WC99/24 (WG6164/98) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.’
The inquiry
On 14 July 2006 the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr O'Dell, the native title party representative, advised he was satisfied that he had been properly instructed by the native title party to consent to the determination. He confirmed the matters set out in paragraph 10 of the application and advised that the agreement reached between the native title party and grantee party was the Regional Standard Heritage Agreement which had been negotiated and agreed by the Ngaanyatjarra Council, Government party and industry.
The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed, referred to in para 10 of the application, as a legitimate basis for seeking a consent determination (see for example Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner). I adopt the findings from para [9] of that determination in relation to the responsibilities of the Ngaanyatjarra Council as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E38/1472 to Australasian Mining and Exploration Pty Ltd, may be done.
Hon C J Sumner
Deputy President
14 July 2006
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