Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Mark Gareth Creasy

[2006] NNTTA 125

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Mark Gareth Creasy, [2006] NNTTA 125 (24 August 2006)

Application No: WF06/69

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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Mark Gareth Creasy (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:               John Catlin, Member

Place:  Perth
Date:  24 August 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:      24 August 2006

Representative of the          Mr Chris Clegg, Statewide Tenement & Advisory Services
grantee party:  Pty Ltd

Counsel for the  Mr Malcolm O’Dell
native title party:                  Ngaanyatjarra Council (Aboriginal Corporation)

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 E38/1628 ('the proposed licence') to Mark Gareth Creasy (‘the grantee party’).

2. The proposed licence comprises an area of some 214.66 square kilometres located 163 kilometres easterly of Wiluna in the Shire of Wiluna and is entirely overlapped by the Wiluna registered native title claim (WC99/24, registered from 24 September 1999).

3. The native title party with respect to these proceedings is Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24).

4. On 14 August 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.

5. Appended to the application is a minute of a consent determination in the following terms, executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently by Mr Christopher Clegg on behalf of the grantee party and Mr Jeff O'Halloran 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 38/1628 may be done’

6. 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).

7. Paragraph 10 of the application states the following in describing why a consent determination is being 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 the Exploration Licence 38/1628 the subject of this consent determination.  The grantee party and the native title party 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 Exploration Licence 38/1628 can therefore be granted in pursuance to the consent determination.

   3. 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 ... and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health."

The inquiry

1. On 24 August 2006 the Tribunal conducted a hearing.  All parties confirmed their consent to the determination in the terms sought.  Mr O'Dell, counsel for the native title party, 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 for exploration endorsed by Ngaanyatjarra Council, the Government party and industry.

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 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 paragraph 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

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E38/1628 to Mark Gareth Creasy, may be done.

John Catlin
Member

24 August 2006