Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Ltd

[2007] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Ltd [2007] NNTTA 69 (17 August 2007)

Application No:      WF07/12

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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Bogada Gold Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:             John Catlin, Member

Place:  Perth
Date:  17 August 2007

Catchwords:  Native title - future act - application for determination for the grant of exploration licence - named applicants not signed state deed - logistical difficulties - 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, 109

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:  17 August 2007

Representative of the          Mr Chris Clegg
grantee party:  Statewide Tenement and Advisory Service Pty Ltd

Representative of the          Mr Malcolm O’Dell
native title party:                 Central Desert Native Title Services

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

REASONS FOR FUTURE ACT DETERMINATION

1. On 2 November 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 E53/1097 (‘the proposed licence’) to Bogada Gold Ltd (‘the grantee party’).

2. The proposed licence is 215.3 square kilometres located 54 kilometres northeasterly of Wiluna in the Shire of Wiluna and is 100 per cent overlapped by the registered native title claim of the Wiluna People (WC99/24, registered from 24 September 1999).

3. The native title party with respect to these proceedings is Alan Ashwin, Barry Abbott, Billy Patch, Dusty Stevens, Friday Jones, Jimmy Morgan, Joyce Tullock, Judy Ashwin, Kenny Farmer, Kitty Richards, Les Tullock, Margie Jackman, Mickey Wongawol, Norman Thompson, Wilma Freddie on behalf of the Wiluna Native Title Claimants (WC99/24).

4. On 19 July 2007, being a date more than six months after the s.29 notice was given Central Desert Native Title Services 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.

5. The native title party requested that the future act determination be made by consent and appended a minute of a consent determination executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently executed by Mr Jeff O'Halloran on behalf of the Government party and Mr Chris Clegg 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 Exploration Licence 53/1097 may be done’

6. Paragraph 10 of the application explains why a consent determination is sought. A Heritage Agreement has been reached between the native title party and the grantee party however:

   "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 Central Desert Native Title Services Limited to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants ... and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.”

7. 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. Central Desert Native Title Services 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).

The inquiry

1. On 17 August 2007 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought.  Mr Malcolm O’Dell, counsel for the native title party, advised he was satisfied that Central Desert Native Title Services had been properly instructed by the native title party to consent to the determination.

2. The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed, referred to in paragraph 10 of the applications, 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) and a number of subsequent determinations made by me. I adopt the findings from paragraph 9 of that determination in relation to the responsibilities of Central Desert Native Title Services as a representative body and the manner in which the Tribunal is to carry out its functions under s.109 of the Act.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of the exploration licence E53/1097 to Bogada Gold Ltd may be done.

John Catlin
Member

17 August 2007