Delores Cheinmora and Others on behalf of the Balanggarra (Combination) People/William Robert Richmond/State of Western Australia

[2011] NNTTA 76

NATIONAL NATIVE TITLE TRIBUNAL

Delores Cheinmora and Others on behalf of the Balanggarra (Combination) People/William Robert Richmond/State of Western Australia, [2011] NNTTA 76 (5 May 2011)

Application No:                WF11/3

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

Delores Cheinmora and Others on behalf of the Balanggarra (Combination) People (WC99/47) (native title party)

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William Robert Richmond (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:               Helen Shurven, Member

Place:  Perth
Date:  5 May 2011

Catchwords:  Native title - future act - application for determination for the grant of exploration licence - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38

Mining Act 1978 (WA)

Cases:Annette Kogolo and Others on behalf of Ngurrara People/Buru Energy Limited and Buru Energy (Acacia) Pty Ltd/State of Western Australia, NNTT WF10/16 [2010] NNTTA 159 (30 September 2010) Daniel O’Dea, Member

Arc Energy NL and Kimberley Oil NL/State of Western Australia/Ngurrara Peoples and Nyikina and Mangala Peoples [2004] NNTTA 22 (5 April 2004) Hon. E.M. Franklyn QC, Deputy President

Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385

Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182

Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon CJ Sumner, Deputy President

Hearing date:                   Determined on the papers

Representatives:

Native Title Party:          Reece O’Brien, Kimberley Land Council

Grantee Party:                 Ms Melissa Watts, Hunt and Humphry

Mr Bill Richmond

Government Party:          Mr Rod Wahl, State Solicitor’s Office

Ms Faye Mitchell, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 4 June 2008, 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 E80/4045 (the proposed licence) under the Mining Act 1978 (WA) to William Robert Richmond (the grantee party).

2. The proposed licence comprises an area of 99 square kilometres and is located within the Shires of Wyndham and East Kimberley. The proposed licence is 100 % within the registered claim of the Balanggarra (Combination) (WC99/47 – registered from 9 December 2004).

3. The registered native title claimants on behalf of the Balanggarra (Combination) People are:

   Delores Cheinmora, James Taylor, Mary Teresa Taylor, May Smith, Mona Williams, Roy Martin, Victor Martin, Vernon Gerrard, Laurie Waina and Clement Maraltadj.

4. On 30 March 2011, being a date more than six months after the s 29 notice was given, the Kimberley Land Council (‘KLC’), on behalf of the native title party, made an application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed permit (the application) and requested that the future act determination be made by consent.

5. A minute of consent determination in the following terms accompanied the application and was executed in counterpart by Mr Nolan Hunter, acting CEO of the KLC, on behalf of the native title party. Counterparts of the minute were executed by Mr Bill Richmond on behalf of the grantee party and Mr Jeff O'Halloran of the State Solicitor’s Office on behalf of the Government party. The grantee party provided the Tribunal with its signed counterpart of the minute on 30 March 2011, and the Government party provided the Tribunal with its signed counterpart of the minute on 13 April 2011.  The minute is in the following terms:

   CONSENT DETERMINATION UNDER SECTION 38 OF

   THE NATIVE TITLE ACT 1993 (CTH)

   1.The Government Party has complied with the requirements of section 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 section 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 section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licence 80/4045 may be done.

6. 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 KLC is the recognised representative body under the Act for the native title parties and represents the native title parties in these proceedings.  

7. Filed in addition to the application on 11 April 2011 is the affidavit of Mr Reece O’Brien, Legal Officer of the KLC affirmed on 11 April 2011 in which he deposes instructions: 

   i.To negotiate and enter into Native Title and Heritage Protection Agreements (“HPA”) with Grantee Party’s (Exploration and Mining companies) seeking access to traditional lands, on the terms and conditions contained in the KLC Standard HPA, as approved by the KLC executive from time to time; and

   ii.To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA.

8. The KLC has applied for a consent determination in order to fulfil their instructions from the native title party, as the KLC has stated that logistical difficulties have prevented signatures of all persons comprising the native title party being gathered on a State Deed. The Government party will be unable to grant the proposed permit until a State Deed is signed by all relevant signatories or a determination pursuant to s 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed licence) may be done.

9. The affidavit of Reece O’Brien on 11 April 2011 attested as follows:

   I, Reece Donald O’Brien of 5/35 Demco Drive, Broome, in the State of Western Australia, Solicitor, solemnly and sincerely declare and affirm:

   1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome office.

   2.I have reviewed the KLC’s file in relation to the Grantee Party’s application for an exploration licence E80/4045, located on Balanggarra (Combined) lands. Based on my review of the file, I have determined that;

   a.On or about 2 July 2008 the KLC, on behalf of the Native Title Party commenced negotiations with the Grantee Party regarding the terms of a Heritage and Native Title Protection Agreement for E80/4045 (Agreement).

   b.On 5 March 2009, a meeting of the Balanggarra (Combined) People and KLC representatives was held at Wyndham.

   c.at that meeting, Robert Houston, a Legal Officer employed by the KLC at that time, sought instructions from the members of the Native Title Party to enable KLC to deal with future act matters.

   d.following Mr Houston’s request, the Native Title Party, using traditional decision making processes, authorised KLC to do the following;

   i.To negotiate and enter into Native Title and Heritage Protection Agreements (“HPA”) with Grantee Party’s (Exploration and Mining companies) seeking access to traditional lands, on the terms and conditions contained in the KLC Standard HPA, as approved by the KLC Executive form time to time; and

   ii.To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA

   e.on or about 10 February 2011, the parties reached agreement on the terms of the Agreement and KLC received a signed copy of the HPA.

   f.on or about 16 February 2011 KLC counter-signed the Agreement.

   g.The terms of the Agreement are consistent with the KLC’s standard heritage protection agreement as approved by the KLC Executive committee at the time it was signed.

   3.Logistically, it would be difficult for the KLC to obtain all the necessary signatures for the State Deed because of the time required to arrange and attend meetings with the named applicants in various and sometimes remote locations throughout the Kimberley.

   4.In light of the difficulties in obtaining all the necessary signatures for the State Deed, and the standing instructions on which the KLC act, the KLC proposes to enter into a consent determination to give effect to the Agreement.

   5.I believe that entry into a consent determination is consistent with the instructions of the Native Title Party.

   6.The preceding paragraphs are true and correct to the best of my knowledge and belief.

The Inquiry

1. On the basis of the information contained in the application, attached affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.

Findings

1. The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title parties on the basis of an affidavit and oral evidence from its legal representative (see Annette Kogolo and Others on behalf of Ngurrara People/Buru Energy Limited and Buru Energy (Acacia) Pty Ltd/State of Western Australia, NNTT WF10/16 [2010] NNTTA 159 (30 September 2010) Daniel O’Dea; Arc Energy NL and Kimberley Oil NL/State of Western Australia/Ngurrara Peoples and Nyikina and Mangala Peoples [2004] NNTTA 22 (5 April 2004) Hon. E.M. Franklyn QC, Deputy President.

2. Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon Christopher Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385).

3. I am satisfied that, based on the evidence provided to the Tribunal in this matter and in Annette Kogolo and Others on behalf of the Ngurrara People/Arc Energy Limited/State of Western Australia, [2010] NNTTA 177 ((4 November 2010) Daniel O’Dea), that the native title party, as a whole, has agreed to the grant of the proposed permit and consent to a determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence 80/4045 to William Robert Richmond, may be done.

Helen Shurven
Member
5 May 2011