Wilma Freddie and Others on behalf of Wiluna/Audax Resources Ltd/State of Western Australia

Case [2006] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of Wiluna/Audax Resources Ltd/State of Western Australia, [2006] NNTTA 51 (5 May 2006)

Application No:        WF06/15

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 Wiluna (WC99/24) (Applicant/native title party)

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Audax Resources Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  5 May 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 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)

Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, NNTT WF06/11, [2006] NNTTA 48 (1 May 2006) Hon C J Sumner

Hearing date:  5 May 2006

Counsel for the  Ms Jasmine Campbell
native title party:                 Ngaanyatjarra Council (Aboriginal Corporation)

Representative of the          Mr Leith Beal
grantee party:  Audax Resources Ltd

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 20 April 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 E53/1117 ('the proposed licence') under the Mining Act 1978 (WA) to Audax Resources Ltd (‘the grantee party’).

  2. The area, location and percentage to which the proposed licence overlaps the Wiluna  registered native title claim (WC99/24, registered from 24 September 1999) is as follows:

  • E53/1117 – 55.31 square kilometres, 73 kilometres easterly of Wiluna in the Shire of Wiluna, 100% overlap

  1. The native title party with respect to these proceedings is Wilma Freddie & Others on behalf of Wiluna (WC99/24).

  2. On 20 April 2006, being a date more than six months after the s 29 notices were given, the Ngaanyatjarra Council (Aboriginal Corporation) made an application pursuant to s 35 of the Act for a future act determination under s 38 on behalf of the native title party.

  3. The native title party requested that the future act determination be made by consent and appended to the s 35 determination application a minute of a consent determination in the following terms, executed by Mr Malcolm O'Dell on behalf of the native title party, Mr Leith Beal on behalf of the grantee party, and since executed by Mr Jeff O’Halloran (State Solicitor’s Office) 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 a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 53/1117 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.  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. The reasons for seeking a consent determination set out in para 10 of the application are the same as those considered in Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, NNTT WF06/11, [2006] NNTTA 48 (1 May 2006), Hon C J Sumner (at para [8]), also involving the same native title party, namely the logistical difficulties in obtaining signatures of all named applicants.

The inquiry

  1. On 5 May 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought.  Ms Jasmine Campbell, counsel for the native title party, advised she was satisfied that the facts set out in para 10 of the application were correct and that Ngaanyatjarra Council had been properly instructed by the native title party to consent to the determination.  She also informed the Tribunal that the agreement signed by the grantee party is based on 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 (i.e. a s 31(1)(b) agreement), 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

  1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E53/1117 to Audax Resources Ltd, may be done.

Hon C J Sumner
Deputy President

5 May 2006

Details
AGLC
Wilma Freddie and Others on behalf of Wiluna/Audax Resources Ltd/State of Western Australia [2006] NNTTA 51
Case
[2006] NNTTA 51
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Wilma Freddie and others on behalf of Wiluna, Audax Resources Ltd, and the State of Western Australia. The dispute centred around the grant of an exploration licence, with the named applicants not having signed a state deed. Logistical difficulties in obtaining signatures from all named applicants were cited as a reason for seeking a consent determination. Additionally, a Regional Standard Heritage Agreement had been executed by the grantee party, and the native title party had given their consent to the determination.

The legal issues the court had to address included whether the Tribunal had the power to make a determination with the consent of the parties and whether it was appropriate to do so when the parties, particularly the native title party, were legally represented and had advised the Tribunal of their consent. The court also had to consider the reasons for seeking a consent determination, specifically the logistical difficulties in obtaining signatures of all named applicants, and whether these reasons were legitimate.

The court found that it had the power to make a determination with the consent of the parties and that it was appropriate to do so in this case, given that the parties were legally represented and had advised the Tribunal of their consent. The court accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed as a legitimate basis for seeking a consent determination. The court found that the Regional Standard Heritage Agreement signed by the grantee party was based on the Regional Standard Heritage Agreement for exploration endorsed by Ngaanyatjarra Council, the Government party, and industry. The court concluded that the determination, which allowed for the grant of exploration licence E53/1117 to Audax Resources Ltd, was appropriate.

The court's final order was that the act, namely the grant of exploration licence E53/1117 to Audax Resources Ltd, may be done. The court emphasised the importance of the Ngaanyatjarra Council's role as a representative body and the manner in which the Tribunal carried out its functions under s 109 of the Act. The court also noted that the reasons for seeking a consent determination were the same as those considered in a previous case involving the same native title party, Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, NNTT WF06/11, [2006] NNTTA 48 (1 May 2006).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 53/1117 may be done.’ 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. 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 reasons for seeking a consent determination set out in para 10 of the application are the same as those considered in Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, NNTT WF06/11, [2006] NNTTA 48 (1 May 2006), Hon C J Sumner (at para [8]), also involving the same native title party, namely the logistical difficulties in obtaining signatures of all named applicants. On 5 May 2006, the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Ms Jasmine Campbell, counsel for the native title party, advised she was satisfied that the facts set out in para 10 of the application were correct and that Ngaanyatjarra Council had been properly instructed by the native title party to consent to the determination. She also informed the Tribunal that the agreement signed by the grantee party is based on the Regional Standard Heritage Agreement for exploration endorsed by Ngaanyatjarra Council, the Government party and industry. The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed (i.e. a s 31(1)(b) agreement), 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. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E53/1117 to Audax Resources Ltd, may be done.