Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia
[2006] NNTTA 48
•1 May 2006
NATIONAL NATIVE TITLE TRIBUNAL
Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, [2006] NNTTA 48 (1 May 2006)
Application No: WF06/11
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
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)
- and -
Galaxy Resources Ltd (grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 1 May 2006
Catchwords: Native title – future acts – application for determination for the grant of exploration licences – 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 acts 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), Hon C J Sumner
Hearing date: 1 May 2006
Counsel for the Mr Malcolm O'Dell
native title party: Ngaanyatjarra Council (Aboriginal Corporation)
Solicitor for the Ms Jasmine Campbell
native title party: Ngaanyatjarra Council (Aboriginal Corporation)
Representative of the
grantee party: Mr Zane Elsegood, Hetherington Mining Title Services Pty 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
On 16 July 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E69/1869, E69/1870 and E69/1871 (‘the proposed licences’) under the Mining Act 1978 (WA) to Galaxy Resources Ltd (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.
The area, location and percentage to which the proposed licences overlaps the Wiluna registered native title claim (WC99/24, registered from 24 September 1999) is as follows:
E69/1869-71 – 593.13 square kilometres (respectively 216.59, 216.16 and 160.30 square kilometres), 104 kilometres north easterly of Wiluna in the Shire of Wiluna, 100% overlap
The native title party with respect to these proceedings is Wilma Freddie and Others on behalf of Wiluna (WC99/24).
On 31 May 2004 the Tribunal made a consent determination in relation to expedited procedure objection application WO03/801 that the expedited procedure was not attracted which meant that the normal negotiation procedure provided for in s 31 of the Act applied from this date.
On 11 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.
The native title party requested that the future act determination be made by consent and appended to the application a minute of a consent determination in the following terms, executed by Mr Malcolm O'Dell on behalf of the native title party and since executed in counterpart by Mr Zane Elsegood on behalf of the grantee party, and Mr Rod Wahl on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Licences E69/1869, E69/1870 and E69/1871 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 Ngaanyatjarra Council is the recognised 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 s 35 application states:
‘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 Licences 69/1869, 69/1870 and 69/1871 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....
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
On 1 May 2006, the Tribunal conducted a hearing. All parties 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 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. He 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 [10] 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 licences E69/1869, E69/1870 and E69/1871 to Galaxy Resources Ltd, may be done.
Hon C J Sumner
Deputy President
1 May 2006
2
2
0