Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Diana Austin Trigg

[2009] NNTTA 144

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Diana Austin Trigg, [2009] NNTTA 144 (5 November 2009)

Application No:        WF09/21

IN THE MATTER of the Native Title Act1993 (Cth)

- and –

IN THE MATTER of an inquiry into a future act determination application

Ike Simpson and Ors on behalf of the Wajarri Yamatji (WC04/10) (native title party/Applicant)

- and -

The State of Western Australia (Government party)

- and -

Diana Austin Trigg (grantee party)

FUTURE ACT DETERMINATION

Tribunal:                  John Catlin, Member

Place:    Perth
Date:     5 November 2009

Catchwords:  Native title – future act – application for determination for the grant of prospecting licence – logistical difficulties preclude execution of ancillary agreement and State Deed – native title party consents to the determination - consent determination that the act may be done.

Legislation:  Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151(2),
  Mining Act 1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia/Albert Darby Winder and others [2001] NNTTA 50 (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member

Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Skytone Pty Ltd, NNTT WF09/12, [2009] NNTTA 113 (24 September 2009), John Catlin, Member

Hearing date:   Determined on the papers

Representative of the

native title party:                 Mr Matthew Punch, Yamatji Marlpa Aboriginal Corporation

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:              Mr Dave Thomson, Department of Mines and Petroleum

Grantee party:  Ms Diana Austin Trigg

REASONS FOR FUTURE ACT DETERMINATION

1. On 25 August 1999, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of prospecting licence P20/1792 (‘the proposed licence’) under the Mining Act1978 (WA) to Diana Austin Trigg (‘the grantee party’). Included in the notice was a statement that it considered the grant attracted the expedited procedure (that is, the act is one which can be done without the normal negotiations required by s 31 of the NTA).

2. The proposed licence comprises of an area of 162.1 hectares and situated 50 kilometres north-west of Cue in the Shire of Mt Magnet. The proposed licence is entirely overlapped by the registered native title claim of the Wajarri Yamatji (WC04/10) – registered from 5 December 2005.

3. The native title party with respect to these proceedings is Ike Simpson, Robin Boddington, Ron Simpson, Charlie Snowball, Monty Walgar, David Jones, Colin Hamlett, Gavin Egan, Mack Mourambine, Timothy Simpson, Bill Pearce, Malcolm Ryan, Neville Mongoo, Gordon Fraser, Rochelle Baumgarten, William Baumgarten and Pam Mongoo on behalf of Wajarri Yamatji. The Wajarri Yamatji People are accorded procedural rights in accordance with Part 2, Division 3 Subdivision 3 of the Act by way of the pre-combination native title claim, Walgar Rock Tribe (WC98/66 – registered from 29 September 1998 to 12 June 2000) which also entirely overlapped the proposed licence.

4. On 1 November 1999 Monty Walgar on behalf of the Walgar Rock Tribe lodged an objection to the expedited procedure statement in relation to the proposed licence (WO99/412). On 27 March 2000 the Tribunal determined by consent that the expedited procedure should not apply and the proposed licence became subject to the right to negotiate. On 4 August 2009 the Government party referred negotiations in relation to the proposed licence for Tribunal mediation assistance pursuant to s 31(3) of the Act and Member O’Dea was appointed as the Member to conduct that mediation. Mediation was finalised on 29 September 2009 on the basis that agreement had been reached between the negotiation parties.

5. On 30 September 2009, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence. The native title party requested that the future act determination be made by consent.

6. Appended to the application was a minute of a consent determination in the following terms, executed by Mr Matthew Punch, Claim Lawyer, Yamatji Marlpa Aboriginal Corporation (‘YMAC’) for and on behalf of the native title 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 have 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 consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Prospecting Licences 20/1792 may be done.’

The minute of consent determination was subsequently executed in counterpart by Ms Diana Trigg, the grantee party, and Mr Rod Wahl, State Solicitor’s Office, on behalf of the Government party.

1. The application states that logistical difficulties preclude the execution of the State Deed (being an agreement of the kind contemplated by s 31(1)(b) of the Act). It is further said that YMAC is satisfied that the native title party consent to the determination, as evidenced by a resolution of the Working Group passed at the Wajarri Yamatji Working Group meeting on 12 March 2009.

2. 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/Albert Darby Winder and others [2001] NNTTA 50 (22 June 2001) 164 FLR 361 The Hon C J Sumner, Deputy President).

The Inquiry Findings

1. All parties have agreed that the determination could be made on the papers and I am satisfied that I can adequately determine the matter in this manner (s 151(2)).  

2. The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants for this native title claim as a legitimate basis for seeking a consent determination (for example, Ike Simpson & Ors on behalf of the Wajarri Yamatji/Mr Ronald Crowe and Others on behalf of Gnulli/Western Australia/Aztec Resources Ltd, NNTT WF07/15, [2007] NNTTA 83 (17 September 2007), Daniel O’Dea, Member; Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Giralia Resources NL, NNTT WF07/42 [2008] NNTTA 15 (5 February 2008), John Catlin, Member). Further, I considered whether the appropriate consent had been given by the native title party in Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Skytone Pty Ltd, NNTT WF09/12, [2009] NNTTA 113 (24 September 2009), John Catlin, Member (‘Skytone’). In support of the native title party’s consent in Skytone, the Tribunal was provided with the affidavit of Matthew Francis Punch, affirmed 25 June 2009.  The Tribunal is entitled to infer that the evidence given in that affidavit, which references the Wajarri Yamatji Working Group meeting held on 12 March 2009 from which authorisation to bring a consent determination application was given, is applicable in this present matter. In particular I accept that YMAC’s legal representative has obtained the appropriate consent from the native title party and adopt my findings in Skytone at [10]. There is nothing in the papers before me to suggest the contrary.

3. I am satisfied that based on the evidence provided to the Tribunal, the native title party as a whole has agreed to the grant of the proposed licence 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 prospecting licence P20/1792 to Diana Austin Trigg, may be done.

John Catlin
Member
5 November 2009