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

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’).
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’).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd [2008] NNTTA 114
Case: [2008] NNTTA 114
Decision Date: 21 August 2008

CaseChat Overview and Summary

The case involved the Wiluna Native Title Claimants, represented by Alan Ashwin, seeking a determination regarding the grant of a mining lease over their land by Newmont Wiluna Gold Pty Ltd. The dispute reached the court, which had to decide whether the proposed mining activities would affect the native title rights of the claimants. The legal issues centred on whether the proposed mining activities constituted a future act that would impact the native title rights, and if the claimants' consent could be obtained to allow the act to proceed. The court had to examine the provisions of the Native Title Act 1993, specifically sections 203 and 204, to determine if the claimants' consent was necessary and if the Heritage Protection Agreement could be used to address any potential impacts.

The court examined the application for a consent determination under section 203 of the Native Title Act, considering the claimants' consent to the proposed mining activities. It was established that the claimants had agreed to the mining lease, but logistical difficulties prevented the execution of the State Deed. The court needed to decide if the claimants' consent could still be effective in the absence of the State Deed, and if the Heritage Protection Agreement could be used to mitigate any impacts on native title rights. The court also had to consider the implications of section 204 of the Act, which allows for a consent determination if the future act may be done without invalidating the native title.

After reviewing the arguments and evidence presented, the court concluded that the claimants' consent to the mining activities was valid, despite the logistical difficulties in executing the State Deed. The court found that the Heritage Protection Agreement was sufficient to address any potential impacts on the native title rights, and that the proposed mining activities could proceed with the claimants' consent. The court issued a consent determination under section 203 of the Native Title Act, allowing the grant of the mining lease to proceed. The court's decision recognised the importance of protecting native title rights while also acknowledging the need for economic development in the region.

Orders