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

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…

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, Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited, Hunter Resources Pty Ltd and.. [2007] NNTTA 54
Case: [2007] NNTTA 54
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case involved a dispute between the Wiluna Native Title Claimants, represented by Alan Ashwin and others, and several mining companies, including Newmont Wiluna Gold Pty Ltd, Australian Metals Corporation Pty Ltd, Eagle Mining Pty Limited, and Hunter Resources Pty Ltd. The claimants sought a determination regarding the grant of mining leases over land that was subject to their native title rights. The primary issue before the court was whether the proposed mining activities could proceed given that the named applicants for the mining leases were not signatories to the state deed, and whether the consent of the native title party could be obtained through an ancillary agreement.

The court needed to address whether logistical difficulties in obtaining signatures from all relevant parties should prevent the determination of the future act. It also had to consider the validity and effect of the Ancillary Agreement (Area Agreement), which was executed by the grantee parties and which sought the consent of the native title party to the proposed determination. The court determined that despite the logistical challenges, the execution of the Ancillary Agreement by the grantee parties, along with the consent of the native title party, effectively satisfied the requirements for a consent determination.

The court concluded that the consent determination was valid and that the act could proceed. The logistical difficulties did not undermine the effectiveness of the consent given through the Ancillary Agreement. The court emphasised that the focus should be on the outcome of obtaining genuine consent from the native title party, which was achieved in this instance. The court granted the determination allowing the mining leases to be granted, subject to the terms of the Ancillary Agreement.

Orders