Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd

[2008] NNTTA 114

NATIONAL NATIVE TITLE TRIBUNAL

Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd, [2008] NNTTA 114 (21 August 2008)

Application No:                   WF08/24

IN THE MATTER of the Native Title Act1993 (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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Newmont Wiluna Gold Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  21 August 2008

Catchwords:  Native title – future act – application for determination for the grant of mining lease – Heritage Protection Agreement – logistical difficulties preclude the execution of the 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, 109, 151

Mining Act1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner

Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia [2005] NNTT WF05/3, WF05/4, WF05/5, NNTTA 47 (14 July 2005), Hon C J Sumner

Hearing date:  18 July 2008, 8 August 2008

Counsel for the  

native title party:                 Mr Malcolm O’Dell, Central Desert Native Title Services Limited

Representative of the          

grantee party:  Mr Ernst Kohler, Newmont Wiluna Gold 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

Background

1. On 1 August 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of a mining lease M53/934 (‘the proposed lease’) under the Mining Act1978 (WA) to Newmont Wiluna Gold Pty Ltd (‘the grantee party’).

2. The native title party with respect of this proceeding 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 for and on behalf of the Wiluna People (WC99/24 – registered from 24 September 1999) (‘the native title party’).

3. The proposed lease covers an area of some 49.5 hectares located 71 kilometres east of Wiluna in the Shire of Wiluna. The proposed lease is 100 per cent overlapped by the registered claim of the native title party.

4. On 12 June 2008, 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 of the Act. The native title party requested that the future act determination be made by consent on the basis that there are logistical difficulties in arranging execution of the State Deed.

5. Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Mr Malcolm O’Dell on behalf of the Wiluna native title party and subsequently executed in counterparts by, Mr Ernst Kohler on behalf of the grantee party, and Mr Jeff O’Halloran, State Solicitor’s Office 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 Mining Lease 53/934 may be done.’

1. The Tribunal has power to make a determination with the consent of the parties.  It will normally be appropriate for the Tribunal to make a consent determination where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of their 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 [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner (Monkey Mia)).

2. Paragraph 10 of the application explains why a consent determination application is sought:

   ‘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 Mining Lease 53/934 the subject of this consent determination.  The grantee party and the native title party confirm that a Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Mining Lease 53/934 can therefore by 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.’

3. As a result of logistical difficulties precluding the execution of a State Deed as mentioned in s 31(1)(b) of the Act by the native title party, the Tribunal must consider whether the matter can be resolved by way of consent determination.

The inquiry

1. The Tribunal has previously accepted statements by Mr O’Dell where logistical difficulties have existed in obtaining the signatures of a native title party to a State Deed and the Tribunal has allowed such a circumstance to form the basis of seeking a consent determination: 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.

2. Given the reasons for seeking a consent determination were explored in previous applications and no parties objected, I have considered it appropriate to make a determination ‘on the papers’(s 151 of the Act).

Findings

1. On the basis of information contained in the application and the signed minute of consent executed by all parties, I am satisfied that the parties (and particularly the native title party) consent to the determination. I adopt the Tribunal’s findings in paragraph [9] of WF05/3, WF05/4, WF05/5. The findings are in relation to the responsibilities of Central Desert Native Title Service (‘CDNTS’) as a representative body under the Act to protect the interests of native title parties, the manner in which the Tribunal is to carry out its responsibilities under s 109 of the Act and that for these reasons the Tribunal is entitled to accept as evidence the advice of CDNTS’ legal representative that the appropriate consent has been given by the Wiluna native title party.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of the mining lease M53/934 to Newmont Wiluna Gold Pty Ltd, may be done.

Hon C J Sumner
Deputy President
21 August 2008