Aden Eades and Others on behalf of Southern Noongar/Australian Gold Resources Ltd/State of Western Australia

Case •

[2009] NNTTA 46

•

8 May 2009

NATIONAL NATIVE TITLE TRIBUNAL

Aden Eades and Others on behalf of Southern Noongar/Australian Gold Resources Ltd/State of Western Australia, [2009] NNTTA 46 (8 May 2009)

Application No:              WF09/8

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Aden Eades and Others on behalf of Southern Noongar (WC96/109)
(Applicant/native title party)

- and -

Australian Gold Resources Ltd (grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O'Dea, Member

Place:  Perth
Date:  8 May 2009

Catchwords:        Native title — future act — application for determination for the grant of mining lease — named applicants not signed state deed — native title party as a whole consent to the determination — consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38

Mining Act1978 (WA)

Cases:Bradley Foster & Ors (Waanyi People QC99/23)/Copper Strike/QLD 2006, NNTT QF06/1 and QF06/2 [2006] NNTTA 61 (19 May 2006) John Sosso

Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006) Daniel O’Dea

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 C J Sumner

James Dimer on behalf of the Esperance Nyungar People (WC96/64)/Paul Winston Askins, James Ian Stewart/Western Australia WF05/14 [2006] NNTTA 70 (8 June 2006) Daniel O’Dea

Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361

Phanerozoic Energy Pty Ltd/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Western Australia, NNTT WF09/3, [2009] NNTTA 31 (31 March 2009) Daniel O’Dea

Tectonic Resources NL/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF09/2, [2009] NNTTA 25 (18 March 2009) Daniel O’Dea

Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja; Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd; Flamestar Corporation Pty Ltd, WF08/1 [2008] NNTTA 9 (25 January 2008) Hon C J Sumner

Hearing date:                  8 May 2009

Representative for the    Ms Maryse Aranda

native title party:            South West Aboriginal Land and Sea Council

Representative for the     Mr Chris Clegg

grantee party:                 Statewide Tenement and Advisory Services Pty Ltd

Representatives of the    Mr Domhnall McCloskey, State Solicitors Office

Government party:         Ms Faye Mitchell, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

  1. On 3 December 1997, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence E74/242 (‘the proposed lease’) under the Mining Act1978 (WA) to Australian Gold Resources Ltd (‘the grantee party’).

  2. The native title party with respect of this proceeding is Aden Eades, Allan Bolton, Dallas Coyne, Glen Colbung, Rita Dempster on behalf of the Southern Noongar People (WC96/109 – registered from 18 November 1996) (‘the native title party’).

  3. The proposed lease comprises an area of 16,947.61 hectares and is located 10 kilometres south-westerly of Ravensthorpe in the Shire of Ravensthorpe. The proposed lease is 100 per cent overlapped by the registered claim of the native title party.

  4. On 17 April 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 determination under s 38 of the Act in relation to the proposed lease ('the application') and requested that the future act determination be made by consent.

  5. At paragraph 10 of the application, there is a statement that the parties have not been able to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed lease. The applicant states that the native title party consents to the proposed act being done on the basis of a Heritage Protection Agreement that has been reached between the parties.

  6. Although the application did not provide any reasons as to why a consent determination is sought I have recently had regard to two other matters involving the native title party (see Tectonic Resources NL/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF09/2, [2009] NNTTA 25 (18 March 2009) and Phanerozoic Energy Pty Ltd/Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Western Australia, NNTT WF09/3, [2009] NNTTA 31 (31 March 2009)) in which not all registered claimants were available to execute the agreement. I accept this may also be so in this case.

  7. A minute of consent determination executed by Mr Chris Clegg on behalf of the grantee party was forwarded by the State to the Tribunal on 24 April 2009.  The minute was later executed by Mr Domhnall McCloskey (State Solicitor’s Office) on behalf of the Government party and by Mr Richard Hickson 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 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 74/242 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. South West Aboriginal Land and Sea Council (‘SWALSC’) is the recognised representative body under the Act for the native title party and represents the native title parties in these proceedings. 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 inquiry

  1. On 8 May 2009, a hearing was conducted at which all parties were represented. Ms Maryse Aranda, Legal Officer from SWALSC represented the native title party, Mr Chris Clegg represented the grantee party, and Mr Domhnall McCloskey and Ms Faye Mitchell appeared for the Government party.

Findings

  1. At the hearing the Government, grantee and native title party confirmed their consent to the determination in the terms sought.  The reason for seeking the determination in respect of the native title party is because the State Deed has not been executed as there are differences within the applicant group which are unrelated to the grant of this tenement.

  2. The affidavit of Mr Hickson, Principal Legal Officer of SWLASC filed with the Tribunal on 7 May 2009 attests that instructions were obtained from the native title party by the passage of a resolution at the working party meeting held on 1 April 2009.  The affidavit of Mr Hickson confirms that the native title party consents to the determination being made in relation to the proposed lease.  A copy of the native title party resolution is attached as ‘Exhibit A’ to Mr Hickson’s affidavit.

  3. The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination  (see Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006) Daniel O’Dea; Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja; Aden Eades and Others on behalf of Southern Noongar; Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd; Flamestar Corporation Pty Ltd, WF08/1 [2008] NNTTA 9 (25 January 2008) Hon C J Sumner).

  4. Further, the Tribunal has on numerous occasions held that a native title party is all the named applicants for a native title determination acting jointly or collectively and not each individually named person. Where it is clear that the native title party or claim group as a whole consent to a determination despite dissent from some named applicants, the Tribunal will make a determination by consent (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 C J Sumner; Bradley Foster & Ors (Waanyi People QC99/23)/Copper Strike/QLD 2006, NNTT QF06/1 and QF06/2 [2006] NNTTA 61 (19 May 2006) John Sosso; and James Dimer on behalf of the Esperance Nyungar People (WC96/64)/Paul Winston Askins, James Ian Stewart/Western Australia WF05/14 [2006] NNTTA 70 (8 June 2006) Daniel O’Dea). In this matter 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 lease 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 E74/242 to Australian Gold Resources Pty Ltd, may be done.

Daniel O'Dea
Member
8 May 2009

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0