Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Giralia Resources Nl

[2008] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Giralia Resources NL, [2008] NNTTA 63 (7 May 2008)

Application No: WF08/15

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

Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (Applicant/native title party)

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The State of Western Australia (Government party)

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Giralia Resources NL (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:             John Catlin, Member

Place:  Perth
Date:  7 May 2008

Catchwords:  Native title – future act – application for determination for the grant of exploration licences – logistical difficulties – Alternative Heritage Agreement – native title party consents to the determination – consent determination that the act may be done.

Legislation:          Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109
  Mining Act 1978 (WA)

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:  Determination made on the papers

Representative of the          Mr Rodney Joyce
grantee party:  Giralia Resources NL

Representative of the          Mr Malcolm O’Dell
native title party:                Central Desert Native Title Services Limited

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:              Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On the following dates 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 E69/1804 and E69/1771 (’the proposed licences’) under the Mining Act 1978 (WA) to Giralia Resources NL (‘the grantee party’).

   ·20 March 2002 – E69/1804; and

   ·10 July 2002 – E69/1771.

2. The proposed licences are located in the Shire of Wiluna and the area, location and percentage to which each of the proposed licences overlap the Wiluna native title claim is as follows:

   ·E69/1804 – 30.88 square kilometres, 105 kilometres north easterly of Wiluna; 100 per cent overlap; and

   ·E69/1771 – 220.48 square kilometres, 127 kilometres northerly of Wiluna; 45.7 per cent overlap.

3. The native title party with respect to these proceedings is Alan Ashwin, Barry Abbott, Billy Patch, Dusty Stevens, Friday Jones, Jimmy Morgan, Joyce Tullock, Judy Ashwin, Kenny Farmer, Kitty Richards, Les Tullock, Margie Jackman, Mickey Wongawol, Norman Thompson, Wilma Freddie on behalf of the Wiluna Native Title Claimants (WC99/24, registered from 24 September 1999) (‘native title party’).

4. On 9 April 2008, being a date more than six months after the s 29 notice was given, the Central Desert Native Title Services Limited (‘CDNTS’) on behalf of the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The native title party requested that the future act determination be made by consent.

5. Appended to the application is a minute of a consent determination in the following terms and executed by Mr Malcolm O’Dell on behalf of the native title party. The minute of consent was subsequently executed by Mr Rodney Joyce on behalf of the grantee party and Mr Jeff O'Halloran 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 Licences 69/1771 and 69/1804 may be done.’

1. Paragraph 10 of the application explains why a consent determination is sought. An Alternative Heritage Agreement has been reached between the native title party and the grantee party however:

   ‘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 parties consent to the proposed act being done, that is the grant of Exploration Licences 69/1771 and 69/1804 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licences 69/1771 and 69/1804 can therefore be granted in pursuance to the consent determination.

   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 Central Desert Native Title Services Limited to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants on native title Claim Wiluna NNTT No WC99/24 (WG6164/98) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.’

1. Because logistical difficulties preclude the execution of the State Deed by the named applicants for the Wiluna native title party the Tribunal must consider whether the matter can be resolved by way of consent determination.

2. The Tribunal has the 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 CDNTS is the designated 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).

The Inquiry

1. The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed, referred to in paragraph 10 of the applications, 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) and in a number of subsequent determinations made by me.

2. Given the reasons for seeking a consent determination were explored in previous applications, I sought submissions from parties on the appropriateness of conducting the inquiry ‘on the papers’ (i.e. without a formal hearing).  As no objections were raised by the parties I consider it appropriate to conduct the matter on the papers.

Findings

1. I adopt the findings from paragraph 9 of 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) in relation to the responsibilities of the CDNTS 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 acts, namely the grant of the exploration licences E69/1804 and E69/1771 to Giralia Resources NL may be done.

John Catlin
Member

7 May 2008