Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd, Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited, Hunter Resources Pty Ltd and..
[2007] NNTTA 54
•19 June 2007
NATIONAL NATIVE TITLE TRIBUNAL
Alan Ashwin and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd, Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited, Hunter Resources Pty Ltd and Newmont Yandal Operations Pty Ltd [2007] NNTTA 54 (19 June 2007)
Application Nos: WF07/5, WF07/6 and WF07/7
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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Newmont Wiluna Gold Pty Ltd, Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited, Hunter Resources Pty Ltd and Newmont Yandal Operations Pty Ltd (Grantee parties)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 19 June 2007
Catchwords: Native title — future act — application for determination for the grant of mining leases — named applicants not signed state deed — logistical difficulties — Ancillary Agreement (Area Agreement) executed by grantee parties — 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: 18 June 2007
Representative of the Ms Rachael Chalmers
grantee parties: Newmont Yandal Operations Pty Ltd
Representative of the Ms Katherine Hill
native title party: Ngaanyatjarra Council (Aboriginal Corporation)
Representatives of the Ms Cheryl Henry, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
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 the following mining leases (‘the proposed leases’) to the following grantee parties:
10 May 2006
· M53/611 to Newmont Wiluna Gold Pty Ltd, 60km E of Wiluna, 39.72 hectares
· M53/911 to Newmont Wiluna Gold Pty Ltd, 52km E of Wiluna, 19.74 hectares
· M53/935 to Newmont Wiluna Gold Pty Ltd, 46km NE of Wiluna, 17 hectares
7 June 2006
· M53/929 to Newmont Wiluna Gold Pty Ltd, 50km NE of Wiluna, 660.62 hectares
12 April 2006
· M53/535 to Australian Metals Corporation NL, Eagle Mining Corporation NL, Hunter Resources Ltd, 72km E of Wiluna, 912.04 hectares
· M53/536 to Australian Metals Corporation NL, Eagle Mining Corporation NL, Hunter Resources Ltd, 73km E of Wiluna, 890.45 hectares
21 May 1997
· M53/537 to Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd, 52km NE of Wiluna, 962.97 hectares
· M53/538 to Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd, 50km NE of Wiluna, 982.75 hectares
· M53/539 to Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd, 47km NE of Wiluna, 920.42 hectares
· M53/540 to Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd, 47km NE of Wiluna, 643.44 hectares
· M53/541 to Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd, 50km NE of Wiluna, 970.53 hectares
1 April 1998
· M53/711 to Great Central Mines Ltd, 43km E'ly of Wiluna, 62.06 hectares
· M53/712 to Great Central Mines Ltd, 42km E'ly of Wiluna, 5.48 hectares
2 October 2002
· M53/836 to Newmont Yandal Operations Ltd, 44km E of Wiluna, 720.77 hectares
10 May 2006
· M53/895 to Newmont Yandal Operations Pty Ltd, 61km E of Wiluna, 15.62 hectares
· M53/940 to Newmont Yandal Operations Pty Ltd, 43km NE of Wiluna, 944.47 hectares
· M53/966 to Newmont Yandal Operations Pty Ltd, 64km E of Wiluna, 3.2 hectares
Company ownership flowcharts and ASIC extracts were appended to the application and change of name registrations were subsequently filed by the representative for the grantee parties. In summary, Newmont Wiluna Gold Pty Ltd is one hundred percent owned by Newmont Yandal Operations Pty Ltd. Great Central Mines Ltd undertook two change of name registrations to Newmont Yandal Operations Ltd in 2002, which in turn registered a change of name to Newmont Yandal Operations Pty Ltd in 2003. Australian Metals Corporation NL, Eagle Mining Corporation NL and Hunter Resources Ltd undertook name changes in 1998 and 1999 to Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited and Hunter Resources Pty Ltd and each are one hundred percent owned by Newmont Yandal Operations Pty Ltd.
The proposed leases are located in the Shire of Wiluna and are entirely overlapped by the Wiluna native title claim (WC99/24, registered from 24 September 1999) (‘the Wiluna claim’). Those proposed leases notified under s.29 of the Act prior to the registration of the Wiluna claim were entirely overlapped by the Tullock native title claim (WC97/32) registered on 28 April 1997 (‘the Tullock claim’). The Tullock claim was combined into the Wiluna claim on 15 September 1999 and removed from the Register of Native Title Claims upon the registration of the Wiluna claim on 24 September 1999.
Therefore the native title party with respect to these proceedings is Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24).
On 25 May 2007, being a date more than six months after the s.29 notice was given, Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the native title party, made the following applications pursuant to s.35 of the Act for a future act determination under s.38 ('the applications'):
· WF07/5 in respect of M53/611, M53/911, M53/935 and M53/929
· WF07/6 in respect of M53/535, M53/536, M53/537, M53/538, M53/539, M53/540 and M53/541
· WF07/7 in respect of M53/711, M53/712, M53/836, M53/895, M53/940 and M53/966
The native title party requested that the future act determination be made by consent. Each of the applications appends a minute of a consent determination in identical terms, with the exception of the proposed leases relevant to each application, executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently by Mr Jeff O'Halloran on behalf of the Government party and Mr Andrew Lindsay, General Manager of Jundee Operations which will manage the mining on the proposed leases and is wholly owned by Newmont Yandal Operations Pty Ltd, on behalf of the grantee parties:
‘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 … [the proposed leases] may be done’
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. Ngaanyatjarra Council 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).
With the exception of the proposed leases relevant to each application, paragraph 10 of each application is in identical terms and explains why a consent determination 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 Grantee Party and the Native Title Party have previously reached an Area Agreement that encompasses the area of … [the proposed leases]. As part of this Area Agreement, the Native Title Party has agreed to the grant to the Grantee Party of mining and related tenements in the area covered by the Agreement. Further the Agreement provides for the Native Title Party to expedite, as far as possible, the grant of mining and related tenements in the area covered by the Agreement.
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 Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants ... and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.
4. As the result of the logistical and other difficulties referred to above, and because the Native Title Party’s obligations under the Area Agreement to expedite the grant of mining tenements, the Native Title Party has instructed the Ngaanyatjarra Council to bring this application."
Paragraph 11 of each application states that the Area Agreement is two agreements, one covering heritage protection and the other land access and financial benefits, reached between the native title party and Newmont Yandal Operations Pty Ltd.
The inquiry
On 18 June 2007 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Ms Katherine Hill, solicitor for the native title party, advised she was satisfied that Ngaanyatjarra Council had been properly instructed by the native title party to consent to the determination.
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). I adopt the findings from paragraph 9 of that determination in relation to the responsibilities of the Ngaanyatjarra Council as a representative body and the manner in which the Tribunal is to carry out its functions under s.109 of the Act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of the following mining leases to the following grantee parties may be done:
· M53/611, M53/911, M53/935 and M53/929 to Newmont Wiluna Gold Pty Ltd
· M53/535, M53/536, M53/537, M53/538, M53/539, M53/540 and M53/541 to Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited and Hunter Resources Pty Ltd
· M53/711, M53/712, M53/836, M53/895, M53/940 and M53/966 to Newmont Yandal Operations Pty Ltd
John Catlin
Member
19 June 2007
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