Anaconda Nickel Ltd v Western Australia - [2000] NNTTA 366

Reported at (2000) 165 FLR 116

NATIONAL NATIVE TITLE TRIBUNAL

Anaconda Nickel Ltd; Murrin Murrin East Pty Ltd; Murrin Murrin Holdings Pty Ltd; and Glenmurrin Pty Ltd; Delta Gold Ltd/Western Australia/Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O’Loughlin, Sadie Canning (WC99/1 – Wongatha People); Richard Guy Evans (WC95/1 – Koara People), [2000] NNTTA 366 (8 December 2000)

Application No: WF00/2, WF00/3, WF00/4 and WF00/5

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of a Future Act Determination Application

Anaconda Nickel Ltd
Murrin Murrin East Pty Ltd
Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd
Delta Gold Ltd (Grantee parties)

- and -

The State of Western Australia (Government party)

- and -

Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O’Loughlin, Sadie Canning (WC99/1 – Wongatha People)

- and -

Richard Guy Evans (WC95/1 – Koara People) (Native title parties)

FUTURE ACT DETERMINATION

Tribunal:Hon CJ Sumner, Deputy President, Mr J Sosso and
Ms J Stuckey-Clarke, Members
Place:Perth
Date:8 December 2000
Catchwords: Native title – future acts – applications for a determination in relation to mining leases – jurisdiction – existence of future acts – no future act if native title extinguished – s 47(1)(a)(ii) of the Native Title Act applicable to some mining leases – pastoral lease held by trustee – extinguishment to be disregarded – future procedures on jurisdiction – applications dismissed in relation to mining leases where there is no jurisdiction – balance of mining leases may be granted with conditions – no conditions imposed for native title parties who have agreed to the grants – no conditions for the payment of a bond to secure compliance with conditions or prior agreements.
Legislation:Native Title Act 1993 (Cth) ss 3, 24AA(2), 24AA(5), 25(4), 26(1), 29, 30, 31(1)(b), 35, 36, 38, 39, 41(1), 41(3), 44H, 47, 109, 145, 148(a), 227, 228, 233(1)
Land Act 1933 (WA) ss 106(1), 106(2), 140

Cases:Re Koara People (1996) 132 FLR 73
Evans v Western Australia (1997) 77 FCR 193
Western Australia/Evans (Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998
Western Australia v Thomas (1996) 133 FLR 124
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
North Ganalanja Aboriginal Corporation v Queensland Corporation (1996) 185 CLR 595
Fejo v Northern Territory (1998) 195 CLR 96
Western Australia v Strickland [2000] FCA 652
Strickland v Native Title Registrar (1999) 168 ALR 242
Red Alexander/Western Australia/Mineralogy Pty Ltd, NNTT WO96/46, Hon CJ Sumner, 18 April 1997
Western Australia/Thomas (Waljen) & Ors/Anaconda Nickel Ltd, NNTT WF98/7, Hon CJ Sumner, 19 March 1999
Western Australia/Thomas (Waljen) & Ors/ Anaconda Ltd, NNTT WF98/267, WF98/268, WF98/269 and WF98/270, Hon CJ Sumner, 15 July 2000
Western Australia/Thomas (Waljen) & Ors/ Anaconda Ltd, NNTT WF98/267, WF98/268, and WF98/270, Hon CJ Sumner, 20 August 1999
Western Australia v Ward [2000] FCA 191; 99 FCR 316;170 ALR 159
David Daniel & Ors (Ngarluma & Yindjibarndi people)/Western Australia/Raymond JT Butler & Stanley A MacDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000
Walley v Western Australia (1996) 67 FCR 336; 137 ALR 561
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
WMC Resources Ltd/Western Australia/Richard Evans WF 99/4, Hon CJ Sumner 23 December, 1999
Wik Peoples v Queensland (1996) 187 CLR 1
Anderson v Wilson (2000) 171 ALR 705
Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland [1999] FCA 1633; (1999) 95 FCR 14
Western Australia v The Commonwealth (The Native Title Case) 1995 183 CLR 373
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others, (1992) 110 ALR 449
Cubillo v Commonwealth [2000] FCA 1084; 174 ALR 97
The Members of The Yorta Yorta Aboriginal Community v The State of Victoria and Others, No VG 6001 of 1995
Walker v Reid (1910) S.C. (J) 41
Goodhew v Morton [1962] 1 WLR 210
Treweeke v Benson (1936) 53 W.N. (NSW) 151
Colonial Sugar Refining Company v Pedley [1911] St. R. Qd. 255
Ex parte Wallace (1892) 13 N.S.W.R. 52
Hughes v Pulli [1972] QWN 23
Webb v Epstein [1955] VLR 462
Miglio v Hibberd [1984] 1 Qd. R. 324
Goodhew v Morton and Quatromini v Peck [1972] 1 WLR 1318
Ross v Cameron (1921) S.C. (J) 41
Ex parte Baldwin (1908) 8 N.S.W.S.R. 19
Boucaut Bay Co Ltd v The Commonwealth (1927) 40 CLR 98
O’Dea v Allstates Leasing Systems (WA) Pty Ltd (1983) 152 CLR 359
Mabo v Queensland (No.2) (1992) 175 CLR 1
Parisienne Basket Shoes v Whyte (1937) 59 CLR 369).
Placer (Granny Smith) Pty Ltd & Ors/Western Australia/Harrington-Smith (Wongatha), NNTT WF99/5, Hon CJ Sumner, 24 February 2000
Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197

Word & Phrases: ‘enclose’

REASONS FOR FUTURE ACT DETERMINATION

Introduction

The Native Title Act 1993 (Cth) (NTA) was amended with relevant provisions to operate from 30 September 1998. As the future act determination applications were made on 21 February 2000, after the commencement of the provisions of the amended NTA, the provisions of the amended NTA apply (Schedule 5, Items 2 and 4(1)). Where necessary in these reasons the NTA prior to its amendment is referred to as the ‘old NTA’ and after its amendment as the ‘new NTA’.

Background

The State of Western Australia (the Government party) proposes to grant under the Mining Act 1978 (WA) certain mining leases (the proposed tenements) to Anaconda Nickel Ltd, Murrin Murrin East Pty Ltd (formerly Yundamindra Nickel Pty Ltd), Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd and Delta Gold Ltd (the grantee parties) as part of the Murrin Murrin Project for the mining, processing and refining of nickel and cobalt between Leonora and Laverton (the Project). The grantee parties are referred to collectively as ‘Anaconda’ in these reasons. The mining leases are to be subject to certain endorsements and conditions imposed pursuant to the Mining Act. Section 85 of the Mining Act specifies the rights of a holder of a mining lease.
The Government party gave notice, in accordance with s 29 of the Act, of its intention to grant the tenements. The relevant details set out in Appendix 1. The grants of the tenements are future acts covered by s 26(1) of the NTA and cannot validly be done unless the right to negotiate provisions of the NTA are complied with.
Twenty mining leases which are part of the Murrin Murrin Project have already been the subject of Tribunal consideration and determination in:

Western Australia/Thomas (Waljen & Ors/Anaconda Nickel Ltd, NNTT WF98/7, Hon CJ Sumner, 4 September 1998 (Anaconda 1 good faith decision); and
Western Australia/Thomas (Waljen) & Ors/Anaconda Nickel Ltd, NNTT WF98/7, Hon CJ Sumner, 19 March 1999 (Anaconda 1) (8 mining leases).
Western Australia/Thomas (Waljen) & Ors/ Anaconda Ltd, NNTT WF98/267, WF98/268, WF98/269 and WF98/270, Hon CJ Sumner, 17 December 1998.
Western Australia/Thomas (Waljen) & Ors/ Anaconda Ltd, NNTT WF98/267, WF98/268, WF98/269 and WF98/270, Hon CJ Sumner,15 July 2000 (Anaconda 2 good faith decision).
Western Australia/Thomas (Waljen) & Ors/ Anaconda Ltd, NNTT WF98/267, WF98/268, and WF98/270, Hon CJ Sumner, 20 August 1999 (Anaconda 2) (12 mining leases).

Prior to these determinations a number of mining leases and other mining titles were granted to Anaconda to enable the Project to commence (following agreement between Anaconda and various native title parties). The proposed tenements are located in the Murrin Murrin Project Area, which comprises Murrin Murrin North, Murrin Murrin South, and Murrin Murrin East. The Murrin Murrin Project lies between Leonora and Laverton and is more fully described in Anaconda 1. The Project involves open cut mining and processing of nickel and cobalt, with other resources being identified for future extraction.

Stage I of the Project commenced in 1997 and included construction of a processing plant, tailings dam, village and airport at Murrin Murrin North. It involved expenditure in excess of one billion dollars, and was officially opened on 29 July 1999 with production of nickel and cobalt commencing in mid-1999. Stage II of the Project is expected to involve similar expenditure, with an objective of increasing production capacity by 150 per cent. Stage II expansion will occur on a rolling basis over a number of years, with works approval and the Notice of Intent, required as a condition of the mining leases, being prepared and lodged on an as required basis. Anaconda is expanding its operations with the Mount Margaret Project some 100 kilometres north of Murrin Murrin and in other joint ventures but they are not directly relevant to these proceedings.

On 21 February 2000, being a date more than 6 months after the Government party gave notice under s 29 of its intention to grant the proposed tenements, each of the grantee parties applied to the Tribunal pursuant to s 35 of the NTA for a future act determination (‘the s 35 applications’) in relation to the grant of the proposed tenements.
A ‘native title party’ includes any registered native title claimant in relation to the land or waters that will be affected by the act at the time that the Government party gave notice under s 29 of the NTA of its intention to grant the mining leases (s 29(2)(b)). Under the old NTA, a ‘native title party’ also includes any person who within two months of the s 29 notice being given becomes a registered native title claimant (s 30(a)). The new NTA provides that a ‘native title party’ also includes any person who, four months after the notification day becomes a registered native title claimant, where the claimant application was filed no later than three months after the notification day (s 30(1)(a)(i)). Appendix 2 shows the registered native title claims which covered the proposed tenements at the close of the s 29 notification period, both in the pre-combination and post combination form in respect of the Wongatha and Koara claims. Appendix 3 shows registered native title claimants on the each of the pre-combination claims, and the chronological amendments that were made to those claims prior to combination.
On 22 January 1999, the Federal Court, under the new NTA, combined twenty claims into the Wongatha Claim, including of relevance to these proceedings – WC94/8, WC95/15 (Waljen); WC95/32 (Ngurludharra Waljan); WC97/57 (Tjinintjarra); WC96/6 (Thithee Birni Bunna Wiya); WC96/12 and WC96/72 (Bibila Lungutjarra); WC97/4 (Yulbarri); WC97/10 (Mugung); WC97/35 (United North East); WC97/64 (Nardoo); WC96/42 (Milangka Purungu) and WC 97/77 (Nanga/Youndou). The combined claim covers the areas of the proposed tenements. The Wongatha Claim was accepted for registration under the new NTA and the details of the combined application were entered onto the Register of Native Title Claims on 26 February 1999 as WC99/1. The applicants (and hence registered native title claimants) on the combined Wongatha Claim were:

Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Thomasisha Passmore, Thelma O’Loughlin and Sadie Canning on behalf of the Wongatha People.

On 16 November 1999, the Federal Court (WA v Native Title Registrar & Ron Harrington-Smith & Ors on behalf of the Wongatha People [1999] FCA 1593, Carr J) decided that the Native Title Registrar had breached the rules of natural justice in considering whether to accept the combined Wongatha Claim for registration, and that the decision to accept the claim for registration should be set aside. On 10 December 1999 the Wongatha Claim was removed from the Register and the pre-combination claims were reinstated. The combined application was reconsidered by the Registrar and on 10 February 2000, was accepted for registration, and returned to the Register with the same named applicants as previously. The Federal Court made no orders to deal with the fact that the Wongatha Claim was on the Register from 26 February 1999 to 10 December 1999. The Native Title Registrar decided that the Register should not be amended retrospectively which means that during this period the registered native title claimants for the purpose of the right to negotiate were the applicants on the Wongatha Claim.

On 11 January 1999, the Federal Court, under the new NTA, combined six claims including WC95/1 made by Ted Coomanoo Evans and Richard Guy Evans on behalf of Koara People. The Koara combined claim was accepted for registration under the new NTA and the details were entered onto the Register of Native Title Claims on 24 March 1999 as Claim No. WC99/5. The entry at that time showed the applicants (and hence registered native title claimants) as Ted Coomanoo Evans (since deceased) and Richard Guy Evans. On 16 November 1999 in WA v Native Title Registrar & Ted Coomanoo Evans & Richard Evans on behalf of the Koara People [1999] FCA 1594, Carr J decided that the Native Title Registrar had breached the rules of natural justice while considering whether to accept the combined Koara claim for registration. The decision to accept the claim was set aside on 10 December 1999, and the pre-combination claims (including WC95/1) were reinstated on the Register. To date the Koara combined claim has not been accepted for registration. Again, the Koara combined claim was left on the Register between 24 March 1999 and 10 December 1999.
The situation with respect to who were registered native title claimants at the close of the s 29 notice period for the pre-combination and combined Wongatha Claims can be summarised as follows:

The combined Wongatha applicants were on the Register at the close of the s 29 period for all tenements except M39/637, M39/651 and M39/429.
In the case of M39/637, the registered native title claimants at the close of the s 29 notice period on 8 September 1998 were: Leo Thomas and others (Waljen - WC94/8); Dimple Sullivan (Tjinintjarra - WC95/57), Sadie Canning and others (Thithee Birni Bunna Wiya - WC96/4), Trevor Brownley and others (including Murray Stubbs) (Bibila Lungkutjarra - WC96/12 ), Aubrey Lynch and Ross Lynch (Yulbarri - WC97/4), Barron Bonney and others (Mugung - WC97/10), United North East (WC97/35) and Pearlie Wells and Marjorie Strickland (Nardoo - WC97/64). Appendix 3 identifies the full list of registered claimants at the material time.
In the case of M39/651, the registered native title claimants at the close of the s 29 notice period (also 8 September 1998) were: Quinton Tucker and others (Ngurludharra/Waljan - WC95/32), Dimple Sullivan (Tjinintjarra - WC95/57), Sadie Canning and others (Thithee Birni Bunna Wiya - WC96/4), Tomasisha Passmore (Milangka Purunga - WC96/42), Trevor Brownley and others (including Murray Stubbs) (Bibila Lungkutjarra - WC96/72), Aubrey Lynch and Ross Lynch (Yulbarri - WC97/4), Pearlie Wells and Marjorie Strickland (Nardoo - WC97/64) and Betty O'Loughlin and others (Nanga/Youndou - WC97/77).
In the case of M39/429, the registered native title claimants at the close of the s 29 notice period on 17 September 1996 were: Leo Thomas (Waljen - WC94/8), Quinton Tucker (Ngurludharra/Waljan - WC95/32), Dimple Sullivan (Tjinintjarra - WC95/57), Sadie Canning (Thithee Birni Bunna Wiya - WC96/4), Trevor Brownley and others (Bibila Lungutjarra - WC96/12) and, Tomasisha Passmore (Milangka Purunga - WC96/42).

The situation with respect to who were registered native title claimants at the close of the s 29 notice period for the pre-combination and combined Koara claims can be summarised as follows:

In the case of M39/651, the registered native title claimants at the close of the s 29 notice period on 8 September 1998 were Ted Coomanoo Evans (since deceased) and Richard Evans (WC95/1).
In the case of M 39/708, the registered native title claimant at the close of the s 29 period on 6 December 1999 was Richard Evans by virtue of the Koara combined claim (WC99/5).

In Anaconda 1 (at 98-108) and the Anaconda 2 good faith decision (at 5-18) the Tribunal gave detailed consideration to who were native title parties as a consequence of the registration of the Koara and Wongatha combined claims. In Anaconda 1, the Tribunal held that only persons who were registered native title claimants on the pre-combination claims and who are named as applicants on the combined claims remain as native title parties. The Anaconda 2 good faith decision modified this view by concluding that the Federal Court Order combining the various claims also replaced the pre-combination registered native title claimants on each of the pre-combination claims with the post combination applicants on the Wongatha Claim. All the pre-combination claim groups therefore retain the right to negotiate in relation to those tenements where they had previously been native title parties pursuant to s 29(2)(b) or s 30(a) of the old NTA. The registration of the combined claims does not mean that the right to negotiate over particular tenements is now accorded to persons from claim groups which did not have it prior to the combination order and new NTA registration decision because they had not made their native title claims within the period prescribed in ss 29(2)(b) and 30(a).
Had the decision in Anaconda 1 been applied in relation to M39/429, the WC95/32 (Ngurludharra Waljan) claimants would not have been native title parties in the present matter because at the close of the s 29 period (17 September 1996) the only registered claimant was Quinton Paul Tucker and he is not an applicant on the combined claim. Cyril Barnes who is an applicant on the Wongatha Claim was not added to WC95/32 until 31 March 1998. Similarly, the WC96/12 (Bibila Lungutjarra) claimants would not have been native title parties because there is no applicant on the Wongatha Claim who was a registered native title claimant on WC96/12 on 17 September 1996. Murray Stubbs was not added to the claim until 24 October 1996. No such problem exists under the Anaconda 1 interpretation in relation to M39/637 or M39/651 as, at the close of the s 29 notice period, at least one of the applicants on the combined Wongatha Claim was on each of the relevant pre-combination claims. The Tribunal confirms the view it adopted in the Anaconda 2 good faith decision, which means that the claimants in WC95/32 and WC96/12 have retained the right to negotiate in relation to M39/429.
The native title parties in these proceedings are:

the applicants on the combined Wongatha Claim (the Wongatha native title party) in relation to all the proposed tenements; and
Richard Evans (the Koara native title party) in relation to tenements M39/651 and M39/708.

The hearing

All applications were heard together. Mr Joshua Thomson with Ms Rachel Yates of the Crown Solicitor's Office appeared for the Government party, Mr Ken Green of Huston Partners appeared for the grantee party, and Mr Phil Vincent with Ms Harriet Ketley of the Goldfields Land Council appeared for the Wongatha native title party. The Koara native title party was unrepresented and did not make any written submissions to the Tribunal for the purpose of the hearing. Mr Richard Evans attended the hearing in person and it was accepted that his interests were the same as those of the Wongatha native title party. Unless the context requires otherwise a reference to ‘the native title party’ in these reasons is a reference to the Wongatha native title party. The hearing was conducted over two days (16 and 17 October 2000) at the Tribunal's Perth Registry. Where relevant, the Tribunal relied on evidence from the previous Anaconda matters and adopted findings from the Anaconda 1 matter (s 146 NTA). On the substantive question of the future act determination, some additional documents were tendered but no oral evidence was called.

Given the importance of the issues to be considered, the Tribunal acceded to a request from the native title party for a panel of three members (Deputy President Sumner (Presiding member) and Members John Sosso and Jennifer Stuckey-Clarke) to constitute the Tribunal for the purpose of the inquiry (s 124(1)). A question of law arising in an inquiry must be decided in accordance with the opinion of the member presiding (s 144(1)). Any other division of opinion as to the decision must be decided in accordance with the majority opinion if there is one, but in any other case according to the opinion of the member presiding (s 144(2)(b)). In the event, we were unanimous in our views on the law and facts.
The Wongatha and Koara native title parties initially challenged the Tribunal’s jurisdiction to make a determination on the grounds that the Government and grantee parties had not negotiated in good faith as required by s 31(1)(b) of the NTA. By letter dated 23 March 2000, the Wongatha native title party advised the Tribunal that it no longer contested good faith. The Tribunal heard the Koara native title party on 29 March 2000 in relation to the good faith issue but prior to the Tribunal making a decision the challenge was withdrawn (by letter dated 3 April 2000). The Tribunal finds that there is no jurisdictional issue arising in relation to the obligation to negotiate in good faith.

Most of the hearing was occupied by consideration of a second jurisdictional issue, namely whether the Tribunal has jurisdiction to conduct an inquiry and make a determination where native title may have been extinguished.

Jurisdiction – background facts

On 3 March 2000, the Full Federal Court handed down its decision in Western Australia v Ward [2000] FCA 191; 99 FCR 316; 170 ALR 159 (Ward). In summary, Ward (Beaumont and von Doussa JJ, North J dissenting) decided that native title rights and interests are wholly extinguished over areas of:

Western Australian pastoral leases issued after 1934 which were enclosed (for example by fencing) or, where there is no enclosure, which were otherwise improved;
Western Australian pastoral leases issued before 1933 which were both enclosed and improved; and
mining leases and general purpose leases issued under the Mining Act 1978 (WA).

On 14 June 2000, the Tribunal gave directions for the parties to exchange contentions and documents relating to the impact of the Ward decision on right to negotiate inquiries and in particular on whether the s 35 Applications in this matter should be dismissed on the basis that native title had been extinguished.

On 16 June 2000, the Premier (the Hon Richard Court) announced that the Government party had decided to process mining title claims on lands where native title had been extinguished and not put them through the native title processes. On 20 June 2000, the Tribunal was formally advised by the Crown Solicitor’s Office that the Government party:

would proceed to grant tenements where it is satisfied that native title has been extinguished by the grant of historical mining tenure, or by enclosures or improvements to pastoral leases granted after 1934, or enclosures and improvements to older pastoral leases;
had commenced investigating historical mining tenure and pastoral lease improvement information in relation to a number of matters (including these matters) but did not yet have sufficient information to determine whether native title had been extinguished; and
sought an adjournment of proceedings until 12 July 2000, to enable it time to advise the Tribunal which tenements it would be granting.

Counsel for the Government party (Mr Joshua Thomson) confirmed this policy at a directions hearing on 22 June 2000 and further advised that if the Government party reaches the view that it does not know whether native title has been extinguished it would continue to participate in the NTA processes. The following more formal guidelines were issued by the Department of Minerals and Energy on 7 July 2000 confirming this policy.

‘Guidelines
Granting of Mining Tenements where Native Title has been extinguished by previous Tenure
The State’s policy is that to ensure validity of title, applications for mining tenements under the Mining Act 1978 require submission to the future act processes under the Native Title Act (NTA) unless native title has been extinguished by previous tenure.
Cases where native title is held to be extinguished are:
A.According to some earlier Court decisions, and in accordance with the NTA, native title has been extinguished by:

(a)freehold;
(b)exclusive leases as defined in the NTA and granted before 23 December 1996;
(c)scheduled interests detailed in the NTA and Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 granted before 23 December 1996; and
(d)public works commenced before 23 December 1996.

Mining tenement applications over such tenure are granted without reference to the NTA

B.According to the Full Federal Court decision in the Miriuwung Gajerrong appeal case, handed down in March 2000, native title has also been extinguished by:

(a)Western Australian pastoral leases * or those parts of pastoral leases which have been:
(i)enclosed and improved if the lease was granted prior to 1933;
(ii)enclosed or improved if the lease was granted after 1934.

*this may not apply to Aboriginal owned pastoral leases
(b)the grant of mining leases and general purpose leases under the Mining Act 1978; and
(c)the extensive public work of the Ord Irrigation Scheme and the large scale works under the Argyle (Diamond) State Agreement Act.

C.Based on the Full Court reasoning and comparison of the characteristics of the leases granted under the 1978 Mining Act and those granted under the Mining Act 1904, the State also considers that native title has been extinguished by gold mining leases granted under the 1904 Act.

In June 2000, the State Government approved a new policy which enables the granting of mining tenements without reference to the NTA processes in cases where it can be demonstrated from available evidence that native title has been extinguished based on the Full Federal Court reasoning in the Miriuwung Gajerrong appeal case.
Mining tenement applications will be considered by the Department for grant on the basis of the Full Federal Court decision without reference to the NTA and priority in processing will be afforded where the applicant:
· provides a plan showing that the application lies totally within area/s of previous lease/s granted under the Mining Act 1904 or the Mining Act 1978 and proof that the previous lease/s were granted prior to the commencement of the NTA on 1 January 1994; or
· demonstrates that the application lies wholly within an area of a pastoral lease which had been:
i)enclosed and improved if granted prior to 1933; or
ii)enclosed or improved if granted after 1934

by providing -
-a plan showing evidence that the entire area of the tenement application is within an area which itself was enclosed by fencing or natural features (eg a river, a mesa or a ridge);
-evidence that the fence existed before 1 January 1994;
-details of ownership and creation of the lease and
-evidence of improvements and enclosure if the pastoral lease was granted prior to 1933 and the enclosure did not exist after the commencement of the Land Act 1933.

The evidence in respect of pastoral leases can be in the form of:
-     a statutory declaration by the pastoral lessee;
-     plans showing the location of enclosure and or improvements provided that there is also evidence that these existed prior to 1 January 1994; or
-     any other verifiable information.
Note: Each case will be examined on its merits.

Excision of Areas of Reserved or Unallocated Crown Land

Native title may exist over areas of reserved or unallocated Crown land within an area comprising a tenement application. In these cases DME will consider a request by the applicant for the grant of the tenement subject to the excision of such areas.

Applications submitted to NTA processes

Where it cannot be satisfactorily demonstrated that native title has been extinguished, the application will be referred to the appropriate NTA process.’

On 22 June 2000, the Tribunal rescinded the previous directions made in this and certain other matters in which the same issue arose and adjourned the directions hearing to enable the Government party to investigate the extinguishment issue. The Tribunal also gave directions for the parties to exchange contentions on whether the Tribunal would have jurisdiction to conduct an inquiry if the Government party grants the tenements in accordance with the above policy.

In David Daniel & Ors (Ngarluma & Yindjibarndi people)/Western Australia/Raymond JT Butler & Stanley A MacDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000, where the same issue arose the Tribunal identified two potential jurisdictional questions which could arise from the Government’s policy in relation to the Ward decision.

Does the Tribunal have jurisdiction to conduct an inquiry if the Government party grants the tenements?
Must the Tribunal satisfy itself that native title has not been extinguished because of the Ward decision or otherwise before it assumes jurisdiction? Related to this is the question whether the Tribunal should assume jurisdiction if it is uncertain (either because of the uncertain state of the law or facts) about whether native title has been extinguished.

The effect of the contentions made by the native title parties in WO99/197 was that the Tribunal should assume jurisdiction in that situation and the Tribunal noted that whether this was correct would involve a consideration of the decision in Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467 (Mineralogy). In WO99/197, the Tribunal, on 11 August 2000, published reasons for answering question one in the negative and decided that the Tribunal does not have jurisdiction to conduct an inquiry once the Government party has granted a tenement which was the subject of a right to negotiate inquiry.

On 14 August 2000, the Government party informed the Tribunal and other parties, in this and a number of other matters, of its intentions following the investigations it had made into whether native title had been extinguished. The Government party announced that:

in relation to some matters it proposed to grant the tenements;
in relation to other matters it did not, on the basis that the information then available, propose to grant the tenements but proposed to raise the question of extinguishment before the Tribunal as a jurisdictional pre-condition; and
in relation to other matters the Government party did not propose raising any question of jurisdiction based on extinguishment on the information which was then available.

In subsequent consideration of these issues generally before the Tribunal the different approaches were categorised respectively as Category A, Category B and Category C matters. With respect to the tenements the subject of these proceedings the Government party:

contended that the Tribunal lacked jurisdiction in relation to 13 of the tenements namely: M39/637 and M39/714 (WF00/2); M39/685, M39/686, M39/692, M39/715 and M39/716 (WF00/3); M39/651, M39/671, M39/672, M39/684, M39/708 and M39/723 (WF00/4) (the contested tenements) (Category B); and
raised no jurisdictional issue with respect to three of the tenements, namely M37/933 and M39/683 (WF00/4); and M39/429 (WF00/5) (Category C). Each of these tenements are wholly (M39/429) or partly covered by reserves and the Tribunal accepts that no question of extinguishment arises over at least parts of them. The Tribunal finds that it has jurisdiction to conduct an inquiry and make a determination in relation to them.

On 14 August 2000, the Tribunal gave directions for the exchange of contentions and documents relating to both the jurisdictional issue and for the conduct of the inquiry proper. At that stage the native title party raised no objections to the hearing proceeding on the basis that both issues would be dealt with.

The parties’ submissions and question to be decided on jurisdiction

The Government party contended that the Tribunal’s jurisdiction to hear a future act determination application relating to the grant of a tenement is conditioned upon a finding that native title has not been extinguished in relation to the area over which it is proposed that the tenement be granted. In essence the Government party’s contention was that if native title has been extinguished the Tribunal is without jurisdiction as the ‘act’ in question does not affect native title and is therefore not a ‘future act’ as it does not satisfy s 233(1)(c). Section 223(1)(c) relevantly defines a future act of a non-legislative kind as one which affects or would if valid, affect native title and which takes place on or after 1 January 1994. Section 227 says that an act ‘affects’ native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. In addition, it also argued that the Tribunal is obliged to decide whether this jurisdictional precondition has been satisfied, and reliance was placed on Mineralogy. The proper course, the Government party contended, was for the Tribunal to dismiss the applications pursuant to s 148(a), at least insofar as the contested tenements were concerned. In support of its contentions, the Government party produced affidavit evidence and substantial documentation including historical and current maps showing fencing and improvements in the relevant areas.
The native title party accepted that where the Tribunal’s jurisdiction to hear the s 35 applications is challenged, it should inquire into the existence of facts pre-conditional to its jurisdiction. Nevertheless it was argued that the extent of any inquiry undertaken by the Tribunal is a limited one, and had to be considered in light of the following factors:

the administrative role of the Tribunal in holding an inquiry into right to negotiate applications under ss 75 and 139(b) of the NTA;
the exclusive jurisdiction of the Federal Court to hear and determine native title applications pursuant to s 81;
the express power of the Tribunal to refer questions of law to the Federal Court (s 145);
the requirement under s 36 that the Tribunal take all reasonable steps to make a determination in relation to the ‘act’ as soon as practicable;
the requirement to construe the NTA in a beneficial manner to the native title parties; and
the overriding imperative of the NTA and bodies established under it to recognise and protect native title.

The nature of the limited extent of any inquiry undertaken was said in these circumstances to be limited to a perusal of the Register of Native Title Claims. To look behind the Register and proceed to an analysis of the claimed native title would be, it was argued: ‘practically tantamount to a proleptic exercise of the jurisdiction of the Federal Court’ (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 623) (North Ganalanja). This is particularly so now that the new NTA introduced new and more stringent requirements for a claim to be registered (ss 190B and 190C).

It was also suggested that, if the Tribunal heard and considered the Government party’s submissions on extinguishment, the Tribunal would be applying extraneous and irrelevant considerations to the inquiry process. Moreover the Tribunal would be considering legally and factually complex questions that would be central to the eventual native title determination by the Federal Court. The Tribunal’s attention was also drawn to the consequences of it embarking on an inquiry into extinguishment. It was contended that a finding of extinguishment would deprive native title claimants of their protective rights before a final determination of native title was made by the Federal Court. One of the main functions of the Tribunal, it was suggested, is to maintain ‘the status quo’ between the parties until a final determination (North Ganalanja at 660), whereas embarking on this exercise has the potentiality of denying registered native title claimants of the recognition and protection of native title which is one of the main objects of the NTA (s 3(b)).
At the hearing the native title party objected to the receipt of any evidence directed to the extinguishment issue and submitted that the Tribunal should first consider as a preliminary point whether it was obliged to examine whether native title had been extinguished. Given that the native title party had previously agreed to have the hearing into the jurisdictional and substantive issues at the same time, the Tribunal, as a matter of convenience, proceeded to receive all evidence relating to both issues on the understanding that if it decided that it was not appropriate to consider the extinguishment issue then the evidence directed to this point would be of no relevance.
The preliminary question to be decided is whether the Tribunal must be satisfied that the grants of the contested tenements are future acts and in particular whether this requires the Tribunal to decide whether native title has been extinguished over the relevant areas. Put another way the question is whether the existence of a proposed future act is a jurisdictional fact which the Tribunal must be satisfied exists before it conducts a right to negotiate inquiry (an expedited procedure objection application or future act determination application inquiry). If the existence of a proposed future act is a necessary pre-condition to the Tribunal’s jurisdiction, what facts must be established to satisfy the Tribunal that a particular grant is a future act?

Jurisdiction – the law

Walley v Western Australia (1996) 67 FCR 336; 137 ALR 561

The Federal Court first considered issues relating the Tribunal’s jurisdiction in Walley v Western Australia (1996) 67 FCR 336; 137 ALR 561 (Walley). The Federal Court decided that the obligation imposed by the s 31(1)(b) of the old NTA that the Government party must negotiate in good faith with the other parties was a jurisdictional pre-condition to the Tribunal conducting a s 35 inquiry and making a determination pursuant to s 38 of the NTA. If the Tribunal was not satisfied that the Government party had negotiated in good faith as required by s 31(1)(b) the s 35 application should be dismissed pursuant to s 148 of the NTA (prior to its amendment) on the basis that no prima facie case had been made out. The Court also pointed out that jurisdiction will not exist if:

the s 29 notice was not properly given (ALR at 574);
a s 35 application was made before the expiry of six months from the date of the s 29 notice (ALR at 571).

Western Australia v Thomas (1996) 133 FLR 124

In Western Australia v Thomas (1996) 133 FLR 124 (Thomas – in some of the Tribunal’s determinations referred to as Waljen), the Tribunal gave consideration to what were the necessary facts to found its jurisdiction in a s 35 Application under the NTA prior to its amendment. It had no difficulty in identifying the following jurisdictional facts (at 138):

the Government party proposes to do the future act (in that matter to grant mining leases);
the Government party gave notice in accordance with s 29 of its intention to do the proposed act;
the existence of native title parties (the registered native title claimants) in relation to some of the land the subject of the proposed mining leases who were so registered within two months of the Government party giving notice of its intention to do the proposed act;
a future act determination application made in relation to the grant of the mining leases being a date more than six months after the Government party gave notice of its intention to do the proposed acts; and

no agreement between the Government party, the native title party and grantee party as to the doing of the proposed acts having been given to the Tribunal.

An argument was then advanced by the grantee party, similar to that of the Government party in these proceedings. The Tribunal dealt with it in the following way (at 163):

‘In addition to the undisputed jurisdictional facts, Mr van Hattem [counsel for the grantee party] argued that there were two other findings of fact which we must make before the Tribunal could have jurisdiction to make the determination. These were that:
(1)it is possible that native title exists in relation to some or all of the land within the boundaries of the land the subject of the proposed acts, and will be affected if the proposed act is done; and
(2)the proposed acts are permissible future acts which are covered by s.26(2).

For reasons given earlier, we are satisfied that the grant of a mining lease in Western Australia which affects native title is a permissible future act covered by s.26(2). Mr van Hattem argued, however, that because a permissible future act is one which affects native title, we first must make a finding not only about the existence of native title but also that it will be affected by the proposed act. If the act is not one that affects native title, then it cannot be a permissible future act, and if it is not a permissible future act then the right to negotiate provisions do not apply. Consequently, the Tribunal could not proceed to make a determination that the act be done and we should dismiss the application on the grounds that a prima facie case has not been made out (s.148). Mr van Hattem did not argue that we must, in effect, make a determination of native title but rather that we must be satisfied that there is a real, not fanciful possibility that native title exists. ...
Dismissal of the application on such grounds would be a curious result indeed. The Government party has decided to follow the procedures of the Act in order to ensure that the grants of its mining tenements are valid. As a matter of policy it has decided to do so in all cases where it considers that native title might exist, including where the proposed tenement is over pastoral lease land, with or without the reservations for Aboriginal people provided in s.106(2) of the Land Act. The Government party has done this despite being of the view that pastoral leases, with or without reservations, have extinguished native title.
Other State Governments in Australia have taken a different position. They are not giving notice of intention to grant mining tenements in circumstances where they believe that native title has been extinguished. It is not for the Tribunal to comment on the correctness or otherwise of these different approaches. If the High Court finds that pastoral leases do extinguish native title, then the WA Government will have put itself and the Tribunal to considerable administrative inconvenience and cost to no effect. On the other hand, if the High Court finds that pastoral leases do not extinguish native title, the WA Government's practice will have been well-founded.
An order that the application be dismissed on the basis that the proposed act is not a permissible future act because it has not been shown to affect native title will leave the Government party in a difficult position. It wants to ensure the validity of its mining titles by complying with the Act's right to negotiate procedures. It does this on the basis that the possibility exists that they might affect native title. If we were to dismiss the application on the argument advanced by Mr van Hattem, there is a possibility, even if remote, that the validity of the titles could be called into question in later court proceedings.
…
While Mr van Hattem's argument may have some attraction based on a literal reading of the definition of 'permissible future act' and other terms, it does not in our view conform with the scheme and practical operation of the Act. To facilitate the resolution of cases such as these, the Act appears to permit the Tribunal to proceed on the basis that, because there is one or more native title party, native title may exist in relation to the relevant land. It is not necessary to establish that native title does or may exist before the Tribunal has jurisdiction to deal with the application. Also, ss.41(3) and 52 clearly contemplate that the right to negotiate process may be initiated, and action may be taken, on the basis that native title may exist but before an approved determination of native title is made.
This is one of those areas where a literal approach to the wording of some sections of the Act read in isolation from others could produce a situation where the State Government cannot get the validity of its titles established in those instances where a native title determination has not been made. We do not believe this to be the purpose of the legislation and in this context consider that a 'future act' must be one which affects or may affect native title.
Resort to the Explanatory Memorandum which was circulated with the Native Title Bill 1993 confirms this view. The explanation of cl 218 dealing with the definition of future act is, in part, as follows:
“This definition is important because it defines those acts the carrying out of which the Bill regulates. Refer to the definition of ‘act’. This definition is intended to catch within the concept of future acts all acts which do or may affect native title.”

Accordingly, if the procedural requirements of the Act are satisfied, the Tribunal should deal with an application on its merits.
Although the possible or probable existence of native title, and the nature and extent of those native title rights and interests, do not determine the jurisdiction of the Tribunal, they are relevant to the discharge of the Tribunal's responsibilities under ss.38 and 39. In particular, evidence about native title will assist the Tribunal in ascertaining the effect (if any) of the proposed act on any native title rights and interests as one of the matters to be taken into account in making a determination about whether the act may be done and, if so, on what conditions (s.38(1)). An absence or paucity of evidence may influence the Tribunal to determine that the act may be done without any conditions being imposed.
We accept the Government party's position that where native title might be affected it is entitled to utilise the Act to ensure validity of its titles.
Accordingly, we do not consider it necessary to make any jurisdictional finding about the existence of native title or the effect on it of the proposed act in this matter or in future matters of this kind.
Consistently with that conclusion and for the reasons given earlier, we accept that the proposed acts are permissible future acts which are covered by s.26(2).’

In Thomas, in the context of considering the effect of the proposed acts on native title rights and interests pursuant to s 39(1)(a)(i) of the NTA the Tribunal was asked to decide that native title had been extinguished and that there could therefore be no effect of the proposed acts on native title rights and interests. The Tribunal rejected that argument (at 168-169):

‘Mr van Hattem argued that there are no native title rights and interests surviving because there has been extinguishment of native title by the grant of previous mining titles and the existence of past or current pastoral leases. As a result of the validation provisions of the Titles Validation Act 1995 (WA) relating to pastoral leases (which are to the same effect as those in the Native Title Act), and the majority decision in Mabo (No. 2), [Mabo v Queensland (No.2) (1992) 175 CLR 1] the law is certain. Although arguments on extinguishment may be advanced in future proceedings, the Tribunal should act on the law as it is at present. The Act validated and extinguished native title over invalid pastoral leases as these are specifically included as Category A past acts (s.229(3)) and extinguished native title by virtue of s.15(1)(a). He submitted that, in the case of pastoral leases issued after 31 October 1975 which are invalid because of the Racial Discrimination Act, the Act makes it clear that native title has been extinguished. In the case of pastoral leases validly issued before the 31 October 1975, the Mabo (No. 2) principles are clear (at least at this point in time) and the Tribunal should apply the law as it is. Accordingly, Mr van Hattem argued that native title rights and interests have been extinguished over all pastoral lease land.
…
On this point, Mr McIntyre [counsel for the native title party] argued that the Tribunal can not decide whether native title has, or may have, been extinguished by a prior inconsistent grant. Rather, it must be assumed for these proceedings that there has been no extinguishment. This follows from North Ganalanja [North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595] where the High Court said that whether or not pastoral leases extinguish native title is still an arguable point, ie that native title parties should continue to have the right to negotiate pending a definitive decision by the courts on the extinguishment issue. Support for this proposition is found in the following (at 624):
“In some contexts, the conferring of administrative power could require the repository of the power to decide a doubtful or contested question of law and to act accordingly. But in the context of the Act which is regulating the procedure for determining novel issues of native title, it would be surprising if a question of law that is not settled but is critical to the making of a valid claim to native title could be decided administratively so as to preclude an applicant from having the question decided by the Federal Court in proceedings which would be binding on all interested parties. If a presidential member were empowered to determine such a question of law against an applicant, the statutory procedure for the judicial determination of claims for native title in default of resolution by agreement would be subverted.”

In our view it is not practical to take into account the question of the possibility of extinguishment in these proceedings. We accept Mr McIntyre's argument that the possibility of extinguishment should be ignored while the legal issues remain unclear. We do not accept Mr van Hattem's point that the law is clear and certain. While the general principle is that the Tribunal has to apply the law as it is, we consider that it would be inappropriate for a Tribunal of this kind to come to a conclusion about extinguishment when we know that the issue is a live one before the High Court.’

Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467

The next significant decision on jurisdiction was made by the Federal Court in Mineralogy. This was an application for judicial review of the Tribunal’s determination that the expedited procedure was not attracted. The case involved the extension of the term of an exploration licence after 1 January 1994 which had originally been granted in 1986. The grantee party argued first, that the extension was not a proposed future act because under the terms of the NTA it was a past act; and second, that it was not a proposed future act because native title had been extinguished. Section 228 of the NTA defined a past act of a non legislative kind as one which occurred before 1 January 1994 when native title existed in relation to the particular land or waters and which apart from the NTA was invalid to any extent but which would have been valid if native title had not existed (s 228(2)). Certain extensions or renewals of such a past act occurring after 1 January 1994 were then deemed to also be past acts (s 228(4)). In its reasons for determination (Red Alexander/Western Australia/Mineralogy Pty Ltd, NNTT WO96/46, Hon CJ Sumner, 18 April 1997), the Tribunal, after citing parts of the passage from Thomas (at 163) quoted above, concluded (at 16-17):
‘This passage does not support the Government party's argument that there can never be a jurisdictional condition precedent that the act is a permissible future act in objection application inquiries. The Tribunal in Waljen [Thomas] was faced with a situation where the issue in dispute was whether or not it had to be satisfied that native title was affected before it had jurisdiction. There had been no determination of native title and the native title party was only a claimant. Given that the Act clearly gives claimants as well as holders of native title the right to negotiate an inquiry into whether native title existed and whether it was affected by the proposed act as a condition precedent to jurisdiction was inappropriate in that case. The decision does not mean that if it is clear that an act is not a future permissible act then the Tribunal is still obliged to conduct an inquiry. It should be noted that in Waljen, apart from the issue of whether they actually affected native title or not, the Tribunal was satisfied that the proposed acts were permissible future acts covered by s.26(2).
Whether the Tribunal will adopt the approach it took in Waljen in either objection or s.35 future act determination applications will depend on the circumstances. There may be circumstances where what the Government party is proposing is so clearly not an act which is a permissible future act covered by s.26 that the Tribunal can either refuse to hear it because it does not have jurisdiction (see Re Thomas George Dennis and The Secretary, Department of Transport AAT No. 78/129 Air Navigation) or dismiss the application pursuant to s.148 of the Act (as in Walley).
Where the situation is not clear, either because of the facts or the law, different considerations apply. In particular, the difficulties which the Government party may have in establishing the validity of its titles would need to be given greater weight.’

The Tribunal then decided that it was inappropriate in an expedited procedure inquiry to embark on an examination of the complex issues of law and fact that were potentially involved in consideration of whether the act was or was not a proposed future act either because it was a past act or because native title had been extinguished. With respect to the extinguishment question the Tribunal said (at 21-22):

‘As has already been explained above the policy of the Act, for the purpose of the right to negotiate where native title has not been determined but is only claimed, is to assume that native title exists and may be affected. The Tribunal must assume that the native title party has maintained its traditional connection to the land and that native title has not been extinguished by legislative action or an inconsistent grant of title. The claim must be accepted by the Registrar, but an application can be rejected where prima facie the claim cannot be made out (s.63(1)(b)). The Registrar does this in cases such as claims for native title over freehold land where the question of extinguishment is clear. Once a claim has been accepted by the Registrar it would require a very clear argument before the Tribunal could decide in this type of proceeding that native title had been extinguished and that there was therefore no future act involved. This is particularly so as such an examination would be revisiting the Registrar's decision to accept the claim.
The High Court has acknowledged this position in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595:
'Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.' (Brennan CJ, Deane, Toohey, Gaudron, Gummow JJ at 616)’

Although the Federal Court upheld the Tribunal’s determination that the expedited procedure was not attracted, it made the following decisions in relation to the question of jurisdiction.

First, when jurisdiction is challenged, the Tribunal must make due inquiry and satisfy itself that it has jurisdiction and that the function of the Federal Court in a judicial review application was to decide the matter for itself. Carr J said (at 473):

‘In my view, when, as in this matter, a party to proceedings before the tribunal challenges its jurisdiction or authority, it is the duty of the tribunal to make due inquiry about whether it has that jurisdiction or authority.’

His Honour relied upon two earlier decisions of the High Court (Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 and R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54). He cited Barton J in the former case (at 428), that the primary tribunal would have been:

‘… as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance, just as it may become the duty of the superior court.
On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.’

In the latter case Fullagar J said (90-91):

‘Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, its must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions of both law and fact. As Griffith C.J. said in Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty. Co. Ltd “… the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense.” In the same case Barton J. said: “Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance.” …..The position is very clearly put by Coleridge J in Bunbury v Fuller…..“Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; ...”’

Second, it is not open to the Tribunal, where its jurisdiction is under challenge, to take the course of assuming that it has jurisdiction or authority to conduct an inquiry on the basis that having to decide the question would involve consideration of complex matters of fact and law (at 478).

Third, the whole structure of the right to negotiate provisions of the NTA rests on the foundation of the act in question being a ‘permissible future act’ (now, under the amended NTA, a ‘future act’) and that when the existence of that foundation is challenged it is the duty of the Tribunal to satisfy itself whether the act in question is a ‘permissible future act’ (at 478).

The Federal Court then went on to decide that the act was a future act by rejecting arguments that it was a past act and by rejecting arguments that native title had been extinguished. For the purpose of these proceedings it is important to note that the Court (acting in the place of the Tribunal in the review application) specifically considered whether native title had been affected on the basis that it had been extinguished as a result of the original grant of the exploration licence.

It is apparent from this analysis of the authorities that there are a number of jurisdictional facts which must be established before the Tribunal can be satisfied that it has jurisdiction to conduct an inquiry and make a determination. Clearly it is incumbent on the Tribunal not to accept jurisdiction without due inquiry, nor to refuse it ‘with precipitancy’. The native title party did not contest the basic proposition in Mineralogy, that where the Tribunal’s jurisdiction is called into question, there is a positive obligation on it to investigate the matter and be satisfied that jurisdiction exists. The issue to be resolved is whether the actual existence of a future act (which involves consideration of whether native title actually exists and will be affected by the act) is such a jurisdictional fact.

Nature of the inquiry – complex issues of fact and law

The native title party pointed out that if the Tribunal accepted the submissions of the Government party on past extinguishing acts, it would require an analysis of complex facts and law. It was said that such an analysis would be inappropriate having regard to the Tribunal’s role within the scheme and purpose of the NTA. It is true that following the decision of the Full Federal Court in Ward the inquiry required of the Tribunal, should the Government party’s contentions be correct, is potentially an arduous one. In the present matter it involved consideration of whether various pastoral leases had been either ‘enclosed’ or ‘improved’. As these proceedings graphically illustrated, this is no easy task. Complex factual issues arise. Technical and historical materials and practices have to be presented and explained. Various public servants and experts need to give evidence and be subject to cross-examination. In short an inquiry required of the Tribunal to satisfy itself about jurisdiction may be lengthy and complex as well as costly. This would particularly be the case if the Tribunal were to be required to examine such issues as whether a claimant group has maintained the necessary continuous connection with country from the date of settlement.
In the Tribunal’s view the contention of the native title party then, is not without merit. However, whatever may be desirable from the point of view of speedy decision making, the Tribunal is confronted with the clear decision of the Federal Court in Mineralogy which in our view is binding so far as this matter is concerned. Carr J in Mineralogy dealt with the same type of arguments as were submitted to the Tribunal. Although, it must be said, when Mineralogy was decided the type of inquiry now required by Ward was not an issue. His Honour dealt with the argument that it was inappropriate for complex issues of fact and law to be dealt with by the Tribunal (albeit in different circumstances). He recognised that the provisions dealing with ‘future acts’ evince a legislative intention that the decision-making process should not take very long. Carr J made the following comments (at 477-478):
‘In this matter the issue for decision by the decision-maker (the tribunal) was whether the proposed extension attracted the expedited procedure. In view of the jurisdictional objection raised by the applicant, the tribunal was faced with a situation in which it could make two decisions either of which would have determined the matter before it. The first was, at least potentially, a very complicated question of mixed fact and law concerning whether the proposed extension was a “future act”. This in turn would have involved the tribunal in deciding whether the proposed extension did not or will not “affect” any native title rights or interests that may still be in existence or whether it (the proposed extension) is actually a “past act”. The second course, and this was the course which the tribunal adopted in this matter, was not to embark on an examination of such complex issues of law and fact, but to make a finding on a factual issue. The factual issue which the tribunal chose to decide was whether there was likely to be direct interference with the community life of the second respondent. The tribunal found on the evidence that there was likely to be such direct interference. In those circumstances there was no prospect of the proposed extension attracting the expedited procedure, even if it were properly to be characterised as a “permissible future act”. The applicant was not seeking to have the benefit of the expedited procedure; its position was that the proposed extension was a “past act” which did not fall within Subdiv B at all. When one turns to s 32(4), one sees the clearest expression of parliament’s intention that if the native title parties object against the inclusion of the statement (by the government party in its notice of intention), the tribunal “must determine whether the act is an act attracting the expedited procedure”. In those circumstances there is considerable appeal in the contention advanced by the second respondent that if the tribunal could determine that issue simply by making factual findings without direct interference with community life and the like (s 237), without considering whether the act is, as a matter of law, a “permissible future act”, it had parliament’s authority to do so in this matter. Attractive as that line of argument seems (and at one stage of my deliberations it seemed very attractive), and conducive as its acceptance would probably be to the fair and efficient making of the relevant administrative decision, I find that I cannot accept it.
I do not think that it is open to the tribunal, where its jurisdiction or authority is under challenge, to take the course of assuming that it has jurisdiction and authority on the basis that having to decide the question would involve consideration of complex matters of fact and law. The High Court, in the cases which I have cited above, referred to “sufficient inquiry” and, where the jurisdiction is disputed, to “adequate and careful inquiry” as being the duty of such a tribunal before accepting jurisdiction.’
It is clear that the Tribunal is required, when its jurisdiction is challenged, to properly consider the contentions raised. If that requires the Tribunal becoming involved in complicated issues of fact and law, then on the basis of Mineralogy, it is a process that must be followed through, because at issue is the threshold question of whether the Tribunal has the lawful authority to inquire into the matter. Moreover, such an inquiry cannot be cursory. Such an inquiry must be ‘adequate and careful’.

Timeliness

The native title party submitted that the extent of an inquiry carried out by the Tribunal must be limited and put forward a number of reasons supporting that proposition. Those contentions, however, do not address the clear line of judicial authority that is binding on this Tribunal. It is true that s 36(1) requires that ‘the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as possible’ and the Tribunal and Court have previously said that right to negotiate inquiries must be conducted in a timely manner.However the requirement for expedition does not found an argument that the Tribunal is exempted from undertaking a proper and careful inquiry as to threshold jurisdictional issues, as is demonstrated by Walley. As explained above, the Federal Court found in Walley that it was a condition precedent to the jurisdiction of the Tribunal dealing with a s 35 application that the Government party had negotiated in good faith pursuant to s 31(1)(b). A submission that the time limits prescribed by s 35 were ‘tight’ and ‘finite’, and ‘in the event that the Government party failed to negotiate in good faith that….is not to be the subject of the “penalty of blocking a future act determination from proceeding”’ was put to the Court (at FCR 377). This line of argument is not dissimilar from the contention of the native title party that there is a need for the Tribunal to act expeditiously with reference to the tight time frames that the NTA undoubtedly prescribe.
Looked at from the point of view of advancing the purposes of the NTA, the argument concerning expedition has substance. It must be borne in mind that the framers of the NTA drafted the future act provisions on the assumption that decisions would be reached in a timely manner. Nevertheless, when a party properly raises a threshold jurisdictional issue, a tribunal is required, as a general rule, to deal with the challenge and not dismiss it by reliance on a range of collateral considerations. Thus in Walley Carr J dealt with the issue of jurisdiction versus the importance of statutorily mandated expeditious decision making as follows (at FCR 378):
‘It is apparent from the scheme of Subdiv B of Div 3 of Pt 2 of the Act that Parliament intended that the question whether a future act may be done or may be done conditionally should be decided in a timely manner…. There is obviously a risk of that intention being thwarted if proceedings before the Tribunal get bogged down with the adducing of evidence and the hearing of argument on the question whether the Government party has negotiated in good faith.
However, I do not think that those considerations are sufficient to preclude compliance with the Government party’s obligation to negotiate in good faith from being a condition precedent to the making of an application under s 35.’
The question of the relevance of the issue of timeliness was also considered by Carr J in Mineralogy (at 477):
‘I have referred above to the sections in the Subdivision which reflect parliament’s intention that this decision-making process is not to take very long. For example, even in a situation where it is found that the expedited procedure is not attracted and a “negotiation party” subsequently applies to the tribunal to make a determination in relation to the Act, s 36(1) places an obligation on the tribunal to act expeditiously. That obligation is to take all reasonable steps to make a determination within (so far as would, or might, be relevant in this matter) four months from such application. If the tribunal does not make the determination within that period, s 36(2) places a further obligation on the tribunal with which it is to comply as soon as is reasonably practicable after the end of that period. The further obligation is to advise the Commonwealth minister in writing of the reason for it not making the determination within the above period. I am not suggesting that these expressions of parliament’s requirement of expedition may provide jurisdiction or authority where it might not otherwise exist. What I am suggesting is that, in the context of fair and efficient decision-making, it is a factor which may be taken into account upon judicial review.’
Mineralogy and Walley confirm the basic tenet of administrative law that when a challenge is made to the legal/jurisdictional basis of a body to carry out an inquiry that the body in question must determine at the outset that challenge (see also Parisienne Basket Shoes v Whyte (1937) 59 CLR 369). The means by which that challenge to jurisdiction is to be dealt with is dependent on a range of factors, but importantly regard must be had to the statutory basis for the jurisdiction or lack thereof as well as underlying judicial determinations. In the context of the NTA, and the highly complex legal decisions underlying it, there is no doubt that the content of the inquiry mandated by the various Court decisions previously quoted may be extensive and time consuming. That is particularly so following Ward. However, the authority of the above Court decisions establishes that the problem from a logistical point of view presented to the Tribunal and those who appear before it does not derogate from the clear legal duty imposed on the Tribunal when a serious jurisdictional challenge is made. Applied to the present matter, the Tribunal believes that it is required to establish, where challenged, whether a proposed act is a future act in reality and for that purpose it must decide whether native title has been extinguished because of Ward. On the authority of Mineralogy it is not possible in the present matter to assume the existence of native title on the basis that the right to negotiate arises because the native title parties are claimants of native title. Whether a strict application of Mineralogy means that a presumption of the existence of native title can never be made in right to negotiate inquiries is considered below.

Implications of North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595

The native title party also relied on the decision of the High Court in North Ganalanja. Reliance, inter alia, was placed on the quote from the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ (at 624) which is cited above (para [27]) from the Tribunal’s reasons in Thomas (at 168-169). It was submitted that the consequence of the Tribunal embarking upon ‘an extinguishment inquiry’ would be similar to that envisaged in North Ganalanja, namely the denial to the native title claimants of the interim protection regime established by the NTA. A finding of extinguishment by the Tribunal would, it was argued, deny the native title claimants of the protection of their rights and interests before final determination of native title by the Federal Court. It was also submitted that only the Federal Court could make native title determinations, and that determination of contested applications of native title not take place in the forum of the Tribunal through a Member acting administratively.
There is no doubt that the High Court in North Ganalanja saw the right to negotiate provisions of the NTA as preserving ‘the status quo’ pending determination of a claim for native title (at 616). The Tribunal is also cognisant that in interpreting the NTA proper regard must be had to the ‘mischiefs’ it was enacted to address. In the joint judgment quoted above in North Ganalanja their Honours pointed out (at 614-615):
‘Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued.’

While North Ganalanja does provide some support for the native title party’s position the Tribunal has concluded that, on the jurisdictional issue, it is clearly distinguishable from the situation before the Tribunal and that Mineralogy is a more direct and binding authority. In North Ganalanja the High Court was dealing with the rejection of a native title application by the Tribunal at the registration stage. In the joint judgment it was noted (at 623):

‘To give a direction not to accept such an application upon findings of fact made after an adversarial contest on arguable questions of fact or law between persons who would be entitled to be parties if those questions were submitted for determination by the Federal Court and by reference to a legal rule declared by a presidential member after hearing contrary submissions that are fairly arguable is practically tantamount to a proleptic exercise of the jurisdiction of the Federal Court.’

The action being considered by the High Court in North Ganalanja involved an administrative decision not to accept native title claims. As the Government party submitted, the decision of the Tribunal did not turn upon an inquiry into an objective jurisdictional fact, but upon whether the Registrar could form the opinion that ‘prima facie the claim cannot be made out’ (s 63(1)(a) of the NTA prior to amendment). In the present matter, the inquiry the Tribunal has been asked to embark upon is not one involving the merits of native title claims. It is not one that will result in any application for native title being struck out. It is not one that will limit, let alone deprive, the Federal Court of its authority to determine native title applications.

The Government party submits that the outcome of a future act determination application will have no practical effect upon the outcome of a native title determination application. That is true, but only from a fairly narrow legalistic perspective. Certainly the exercise the Government party submits that the Tribunal should undertake has the potential of destroying the preservation of the ‘status quo’ until such time as the Federal Court makes its determination. It has the potentiality of significantly eroding the interim rights and protections that native title applicants seek to have recognised. The highly intrusive nature of the mining activity upon which the grantee party wishes to embark on the contested tenements highlights the effect to which the removal of the status quo may have, should native title be eventually determined.
However, what the Government party submits is that the Tribunal undertake a threshold jurisdictional inquiry. It is not an inquiry into the merits of an application as such. The Tribunal accepts the various judicial and statutory pronouncements of the value to be given to the ‘right to negotiate’ and of the desirability of maintaining ‘the status quo’. However, from a legal point of view they do not found any basis for overcoming the specific and fundamental jurisdictional objections raised by the Government party. In fact, the Tribunal is confronted with submissions from the native title party not entirely dissimilar to those raised before Carr J in Mineralogy and the High Court in Fejo v Northern Territory (1998) 195 CLR 96. In both instances those submissions were rejected (albeit for different reasons). In Mineralogy, Carr J (at 483) did not consider the analogy between the circumstances of that matter and those in North Ganalanja to be as strong as contended for by the native title party. North Ganalanja is distinguishable and the issue before the High Court in that case is different from the issues that arise in this matter. In those circumstances, the Tribunal is obliged to accept and follow the authority of the Federal Court in Mineralogy.

Register of Native Title Claims

It was submitted by the native title party that if the jurisdiction of the Tribunal was challenged, the nature of the inquiry which was open to the Tribunal was limited to a perusal of the Register of Native Title Claims. According to this submission, to look behind the Register and proceed to an analysis of alleged past extinguishment would be inappropriate and a ‘proleptic exercise’ of the Federal Court’s jurisdiction.

In Thomas, the Tribunal set out its conclusions regarding the Tribunal’s inquiry functions (at 162-163). The first six of those conclusions are set out below:

‘(1) The Tribunal’s determination must be based on logically probative evidence and by application of the law.
(2) The Act recognises the interests of the negotiation parties in the outcome of the inquiry and gives them various procedural rights, including a reasonable opportunity to present their case.
(3) There is no onus of proof as such but there is a commonsense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge. Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions.
(4) Although the Tribunal may conduct is own inquiries and obtain evidence itself, it is not generally required to do so and, as a matter of general practice where parties are represented before the Tribunal is not required as a matter of general practice to make out a party’s case for it where that party chooses not to produce relevant evidence.
(5) The Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.

M39/683	25 November 1998	25 March 1999	WC94/8	Waljen	WC99/1 Wongatha Details of Register as above
			WC95/15	Waljen No 2
			WC95/57	Tjinintjarra
			WC96/4	Thithee Birni Bunna Wiya
			WC96/12	Bibila Lungkutjarra
			WC96/72	Bibila Lungkutjarra 2
			WC97/4	Yulbarri
			WC97/10	Mugung
			WC97/35	United North East
			WC97/64	Nardoo
M39/684	25 November 1998	25 March 1999	WC95/15	Waljen No 2	WC99/1 Wongatha Details of Register as above
			WC95/57	Tjinintjarra
			WC96/4	Thithee Birni Bunna Wiya
			WC96/12	Bibila Lungkutjarra
			WC96/72	Bibila Lungkutjarra 2
			WC97/4	Yulbarri
			WC97/10	Mugung
			WC97/35	United North East
			WC97/64	Nardoo
M39/708	4 August 1999	6 December 1999	WC95/1	Koara	WC95/1 Koara WC99/1 Wongatha Details of Register as above
			WC95/32	Ngurludharra/ Waljan
			WC95/57	Tjinintjarra
			WC96/4	Thithee Birni Bunna Wiya
			WC96/42	Milangka Purunga
			WC96/72	Bibila Lungutjarra 2
			WC97/4	Yulbarri
			WC97/64	Nardoo
			WC97/77	Nanga/Youndou
M39/723	4 August 1999	6 December 1999	WC95/32	Ngurludharra/ Waljan	WC99/1 Wongatha Details of Register as above
			WC95/57	Tjinintjarra
			WC96/4	Thithee Birni Bunna Wiya
			WC97/4	Yulbarri
			WC97/35	United North East
			WC97/77	Nanga/Youndou
WF00/5
M39/429	On or before 17 July 1996	17 September 1996	WC94/8	Waljen	WC99/1 Wongatha Details of Register as above
			WC95/32	Ngurludharra/ Waljan
			WC95/57	Tjinintjarra
			WC96/4	Thithee Birni Bunna Wiya
			WC96/12	Bibila Lungkutjarra
			WC96/42	Milangka Purungu
			WC96/54	Doola Gu Nguda
			WC96/58	Ngurra Yungurra Diddo
			WC96/88	Gooth-thoo Bu-Nhu Waljen

NOTE:(1) Claim No 96/20 by Phyllis Thomas (Mantjintjarra Ngalia People) was made on 11 March 1996 and falls over M39/671 and M39/672. Amendments were subsequently made to the claim to add a number of other registered native title claimaints. On 23 April 1999, the Registrar declined to register the claim under the new Act. Although the claim was lodged before 27 June 1996. Schedule 5, Part 4, Item 11(11) of the Transitional Provisions to the new NTA make it clear that the right to negotiate is not preserved as the s 29 notices with respect to those tenements was given under the new NTA.
(2)The following claims over M39/429 were withdrawn and are of no relevance to the proceedings:
·   WC96/54 (Doola Gu Nguda: Louis Thomas, Bertha Thomas) on 3 December 1997.
·   WC96/58 (Ngurra Yungurra Diddo: Cyril Barnes) on 31 March 1998.
·   WC96/88 (Gooth-tho Bu-Nhu Waljen: Fay Sambo, Beverley Lynch) on 3 December 1997.

APPENDIX 3:

REGISTERED NATIVE TITLE CLAIMANTS

Pre-combination Claim Number	Registered Native Title Claimants at date of Registration of the Claim	Amendments to Registered Native Title Claimants made prior to combination of the Claim
KOARA CLAIM
WC95/1 – Koara Lodged 23/12/1994 Registered 8/9/1995 Accepted 12/10/1995	Ted Coomanoo Evans (deceased)	Amended on 04/12/1995 to add Richard Guy Evans
WC95/12 - Koara Lodged 8/6/1995 Registered 8/9/1995 Accepted 18/4/1996	Ted Coomanoo Evans (deceased)	Amended on 04/12/1995 to add Richard Guy Evans
WONGATHA CLAIM
WC94/8 – Waljen Lodged 11/8/1994 Registered 8/9/1995 Accepted 12/10/1995	Leo Thomas	Amended on 03/12/97 to add Lois Thomas, Bertha Thomas, Preston Thomas (jnr), Beverley Lynch, Fay Sambo, Jennifer Lynch, Quinton Tucker, Roberta Thomas Amended on 12/06/1998 to add Dion Meredith, Elvis Stokes, Vivian Milangka (Forrest), Miranda-Lee Farmer, Thomisisha Passmore, Mary-Ellen Passmore-Edwards, George Passmore, Betty O’Loughlin, Robert O’Loughlin
WC95/15 – Waljen Lodged 8/6/1995 Registered 8/9/1995 Accepted 18/4/1996	Leo Thomas	Amended on 03/12/1997 to add Lois Thomas, Bertha Thomas, Preston Thomas (jnr), Beverley Lynch, Fay Sambo, Jennifer Lynch, Quinton Tucker, Roberta Thomas Amended on 12/06/1998 to add Dion Meredith, Elvis Stokes, Vivian Milangka (Forrest), Miranda-Lee Farmer, Thomisisha Passmore, Mary-Ellen Passmore-Edwards, George Passmore, Betty O’Loughlin, Robert O’Loughlin
WC95/32 - Ngurludharra Waljan Lodged 27/7/1995 Registered 8/9/1995 Accepted 19/1/1996	Quinton Paul Tucker	Amended on 31/03/1998 to add Cyril Barnes, Barron Bonney, Allison Tucker, Daniel Tucker, Marjorie Bonney, Amended on 22/05/1998 to add Michael Tucker, Ronald Glen Bonney, Elizabeth Anne Wyatt, Karen June Vincent, Danny Harris, Doreen Marie Harris, Derek Danny (jnr) Harris, Wilma Harris, Kathleen V Tucker, Patricia Tucker, Owen Tucker, Corina Bennell, Hilda Dimer, Jarrad Dimer, Shaun Dimer, Aaron Dimer, Ronald Hogarth, James Brennan, Rodney Ian Tucker, Ruby Grey, Leticia Miller
WC95/57 Tjinintjarra Lodged 25/9/1995 Registered 25/9/1995 Accepted 10/5/1996	Dimple Sullivan
WC96/4 - Thithee Birni Bunna Wiya Lodged and Registered 15/1/1996 Accepted 14/5/1996	Sadie Miriam Canning	Amended on 25/3/1998 to add Mazie Harkin, Ron Harrington-Smith.
WC96/12 Bibila Lungkut- jarra Lodged and Registered 02/02/1996 Accepted 11/05/1996	Trevor Brownley, Rommel McGrath, William Vincent.	Amended on 24/10/1996 to add Fred Meredith (deceased), Bobby Scott (deceased), Murray Stubbs, Anthony Meredith, Elvis Stokes.
WC96/72 - Bibila Lungkutjarra Lodged and Registered 24/6/1996 Accepted: 26/6/1996	Trevor Brownley, Laurel Cooper	Amended on 01/10/1996 to add Fred Meredith (deceased), Bobby Scott (deceased), Murray Stubbs, Anthony Meredith, Elvis Stokes.
WC96/42 - Milangka Purungu Lodged and Registered 19/4/1996 Accepted: 26/6/1996	Thomasisha Passmore
WC97/4 - Yulbarri Nomads Lodged and Registered 22/1/1997 Accepted 23/4/1997	Aubrey Lynch	Amended on 19/02/1997 to add Ross Victor Lynch
WC97/10 - Mugung Lodged and Registered 14/2/1997 Accepted: 15/10/1997	Barron Bonney	Amended on 4/04/1997 to add Allison Tucker, Hilder Dimer, Marjorie Bonney.
WC97/35 - United North East Lodged and Registered 26/5/1997 Accepted: 30/1/1998	Sadie Miriam Canning, Leo Thomas, Quinton Tucker, Dimple Sullivan, Thomasisha Lila Passmore, Fred Meredith, Bobby Scott, Trevor Brownley, Rommel Charles McGrath, William Vincent, Laurel Cooper, Murray Stubbs, Anthony Meredith, Elvis Stokes, Lois M Thomas, Beverley Lynch, Fay Sambo, Allison Tucker, Marjorie Bonney, Barron Bonney, Hilda Dimer, Ross Lynch and all those persons who are members or belong to the following peoples, clans or family groups being Thithee Birni Bunna Wiya, Tjinintjarra, Sullivan Families, Winters Families, Edwards Families, Milangka-Purungu (Wongatha), Goolburthundoo (Waljen), Bibila Lungkutjarra (Waljan), Ngurra Yungarra Diddo, Waljen Yulbarri Mugong	Amended on 16/12/97 to add Bertha Thomas, Cyril Barnes, Aubrey Lynch, Edward McGrath, Dennis Forrest, Adrian Meredith, Celia Sullivan, Preston Thomas Jnr. Amended on 16/12/1997 to remove Leo Thomas, Quinton Tucker, Bobby Scott, Trevor Brownley, Anthony Meredith Clans/Families: Nguludharra Waljan, Doola-gu-nguda. Registered native claimants at 16/12/1997: Sadie Miriam Canning, Dimple Sullivan, Thomasisha Lila Passmore, Fred Meredith, Rommel Charles McGrath, William Vincent, Laurel Cooper, Murray Stubbs , Elvis Stokes, Lois M Thomas, Bertha Thomas, Cyril Barnes, Aubrey Lynch, Beverley Lynch, Fay Sambo, Allison Tucker, Marjorie Bonney, Barron Bonney, Hilda Dimer, Ross Lynch, Dennis Forrest, Adrian Meredith, Celia Sullivan, Preston Thomas Jnr.
WC97/64 – Nardoo Lodged and Registered 4/8/1997 Accepted: 7/10/1977	Pearlie Wells, Marjorie Strickland
WC97/77 – Nanga Lodged and Registered 15/9/1997 Accepted: 18/2/1998	Betty O’Loughlin	Amended on 17/02/1998 to add Robert O’Loughlin Amended on 25/03/1998 to add Thelma O’Loughlin

NOTE:In some cases the date of registration shown on the Register of Native Title Claims entry does not accord with this table. The situation is that claims lodged before 8 September 1995 were registered on the date of acceptance or on the 8 September 1995 if not accepted by then and claims lodged on or after 8 September 1995 were registered on the date of lodgement.

APPENDIX 4

DETERMINATION AND CONDITIONS

Determination

The determination of the Tribunal is that:

mining leases M39/685 and M39/686(WF00/3) may be granted to Murrin Murrin East Pty Ltd;
mining leases M37/933, M39/651, M39/683 and M39/708 (WF00/4) may be granted to Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd; and
mining leases M39/429 (WF00/5) may be granted to Delta Gold Limited.

with conditions (1-11) to be complied with by the Government party, the grantee parties, and by:

the Bibila Lungkutjarra native title party in relation to all the mining leases;
the Nardoo native title party and the Nanga native title party in relation to all the mining leases except M39/429; and
Les Tucker in relation to all the mining leases except M39/651 and M39/429.

and without conditions relating to any other persons who were native title parties in the inquiry.

Conditions

Access

Any right of the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker to access or use the mining lease is not to be restricted except in relation to those parts of the mining lease which are used for exploration or mining operations or for safety or security reasons relating to exploration or mining operations.

Notice of grant

The grantee party must give to the registered native title claimants details of the grant of the mining lease, including the conditions and endorsements, within 21 days of the date on which it was granted.

Aboriginal Sites

3.1The grantee party shall comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation.
3.2If the grantee party gives notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) it must forthwith serve a copy of that notice on the registered native title claimants and the Government party, advising the Government party that any decision to consent or not to consent pursuant to s 18 must be notified to the registered native title claimants.
3.3Within 30 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), the registered native title claimants will inform the grantee party in writing if any of the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker wish to be consulted concerning the proposed use of the land in the notice under s 18 of that Act. If so informed, the grantee party will promptly supply details of the proposed use and make itself available to meet with the registered native title claimants to describe that proposed use within 21 days of the registered native title claimants giving it notice. The registered native title claimants will organise for interested members of the Bibila Lungkutjarra, Nardoo and Nanga native title parties to attend the meeting.
3.4The Government party must forthwith upon receipt by the Minister of a notice and recommendation from the Aboriginal Cultural Material Committee in respect of a site on the mining lease, give a copy of the recommendation and any related report to the registered native title claimants excluding any confidential information provided to the Committee by other than Bibila Lungkutjarra, Nardoo and Nanga native title parties.
3.5Where the Minister gives or declines to give consent under s 18 of the Aboriginal Heritage Act to the proposed use of the land the subject of the notice and recommendation, the Government party must forthwith inform the registered native title claimants of the decision.

Productive mining - information and environment provisions

4.1If the grantee party submits to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity (a Notice of Intent) on the mining lease, then at the same time the grantee party must give to the registered native title claimants:
(a)a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations, and
(b)information on the following matters (if not included in the proposal):
(i)the likely timetable for, and duration of, the mining operations;
(ii)the likely effect of the proposed mining operations on the environment and proposals to minimise the environmental impact of such mining operations; and
(iii)details of any proposed environmental monitoring program.

4.2Where there is a material change proposed to the proposal (the Notice of Intent) provided to the State Mining Engineer the grantee party must, prior to implementing the change, advise the registered native title claimants in writing of those proposed changes.
4.3The Government party must forthwith provide a copy of this Determination and Conditions and Reasons for Determination to the State Mining Engineer and to the Environmental Protection Authority.

General conditions

Assignment

5.1These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the mining lease).
5.2The grantee party must not assign the mining lease unless and until the assignee executes and delivers to the registered native title claimants a deed expressed to be for the benefit of the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(i)to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the mining lease, or if it appoints a receiver to enter into possession of the mining lease; and
(ii)not to transfer the mining lease under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the Bibila Lungkutjarra, Nardoo and Nanga native title parties by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.

5.3For the purpose of conditions 5.1 and 5.2, ‘grantee party’ includes any person to whom the mining lease is assigned.

Application of conditions

6.1These conditions apply only to that part of the mining lease which remains subject to:
(i)a claim made by or on behalf of the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker (either alone or in conjunction with others); or
(ii)an approved determination that the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker, or some of them, hold native title (either alone or in conjunction with other persons) in respect of that part of the mining lease.

6.2These conditions apply only while the mining lease (including renewals) is in force.
6.3These conditions do not apply to the grantee party if it ceases to be the holder of the mining lease and an assignee of the mining lease executes a deed as required by condition 5.2. This condition does not relieve the grantee party of any liability incurred under these conditions prior to it ceasing to be the holder of the mining lease.

Notices

7.1For the purpose of these conditions, the registered native title claimants (from time to time) are authorised to give or receive any notice or other document on behalf of the Bibila Lungkutjarra, Nardoo and Nanga native title parties and Les Tucker
7.2Notices or other communications under these conditions may be given by delivery, post or facsimile and each party must nominate a postal address and facsimile address for that purpose. Until a party has made such a nomination, its address for service will be taken to be the address of the party's representative at the future act determination application proceedings.
7.3Any party may by notice in writing change its addresses or facsimile numbers.
7.4A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.

General

The grantee party shall take all reasonable action to ensure compliance with these conditions by its employees, agents, servants and contractors.
The Government party shall make conditions 1, 3.1, 3.2, 4.1 and 5.2 conditions of the mining lease.
The Government party must endorse on the mining lease the fact that the grantee party and any assignee is subject to the terms and conditions of a determination by the National Native Title Tribunal dated 8 December 2000.

Definitions

For the purpose of this determination and conditions the following terms have the following meanings:
“assign” includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; "assignment" and "assignee" have corresponding meanings.
“Bibila Lungkutjarra native title party” means:
(i)all persons on whose behalf the Bibila Lungkutjarra native title claim was made; and
(ii)any person on whose behalf the Bibila Lungkutjarra native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons); and
“Bibila Lungkutjarra native title claim” means the native title determination applications under the old Act and previously identified with National Native Title Tribunal numbers WC96/12 and WC96/72 but excluding Anthony Meredith and Elvis Stokes and other persons who are Goolburthunoo People.
“exploration” includes the activities referred to in s 66 of the Mining Act 1978 (WA) and the activities referred to in the definition of “explore” in s 253 of the Native Title Act 1993 (Cth).
“Government party” means the State of Western Australia.
“grantee party” means Murrin Murrin East Pty Ltd, Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd and Delta Gold Ltd in relation to the mining leases that they have applied to be granted to them.
“Les Tucker” is the named applicant on the Wongatha Claim identified with National Native Title Tribunal number WC99/1.
“mining lease” means mining leases M39/685, M39/686, M37/933, M39/651, M39/683, M39/708 and M39/429.
“mining operations” means:
(i)mining operations as defined in the Mining Act 1978 (WA) other than any activity associated with exploration activities; and
(ii)any work associated with mining operations including construction of access roads, buildings and work preparatory to mining operations.
“Nanga native title party” means:
(i)Betty O’Loughlin and Robert O’Loughlin and all persons on whose behalf the Nanga native title claim was made; and
(ii)Betty O’Loughlin and Robert O’Loughlin and any person on whose behalf the Nanga native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons).
“Nanga native title claim” means the native title determination application under the old Act and previously identified with the National Native Title Tribunal number WC97/77.
“Nardoo native title party” means:
(i)Pearlie Wells and Marjorie Strickland and all persons on whose behalf the Nardoo native title claim was made; and
(ii)Pearlie Wells and Marjorie Strickland and any person on whose behalf the Nardoo native title claim was made who are determined to hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons).
“Nardoo native title claim” means the native title determination application under the old Act and previously identified with the National Native Title Tribunal number WC97/64
“old Act” has the meaning given in sub-item 31(2) of Part 9 of the transitional provisions to the Native Title Amendment Act 1998.
Reference to a “site” imports the meaning given by s 39(1)(a)(v) of the Native Title Act 1993 (Cth).
“registered native title claimants” means:
(i)the applicants on the Wongatha claim identified with the National Native Title Tribunal number WC99/1; and
(ii)in the event of an approved determination that the Wongatha applicants hold native title to the whole or part of the mining lease (either alone or in conjunction with other persons), means the registered native title body corporate
acting with the authority of the Bibila Lungkutjarra native title party, the Nardoo native title party, the Nanga native title party or Les Tucker.