Aubrey Lynch and Others on behalf of the Wongatha People; Geoffrey Alfred Ashwin and Others on behalf of the Wutha People; Richard Guy Evans and Anor on behalf of the Koara People; Richard Guy Evans and Anor on..
[2007] NNTTA 23
•21 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Aubrey Lynch and Others on behalf of the Wongatha People; Geoffrey Alfred Ashwin and Others on behalf of the Wutha People; Richard Guy Evans and Anor on behalf of the Koara People; Richard Guy Evans and Anor on behalf of Koara No.3/Western Australia/Great Gold Mines NL [2007] NNTTA 23 (21 March 2007)
Application No: WF06/64
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into future act determination applications
Aubrey Lynch and Others on behalf of the Wongatha People (WC99/1) (Wongatha native title party)
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Geoffrey Alfred Ashwin and Others on behalf of the Wutha People (WC99/10) (Wutha native title party)
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Richard Guy Evans and Anor on behalf of the Koara People (WC95/1) (Koara native title party)
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Richard Guy Evans and Anor on behalf of Koara No.3 (WC95/22) (Koara no.3 native title party)
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The State of Western Australia (Government party)
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Great Gold Mines NL (grantee party)
FUTURE ACT DETERMINATIONS
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 21 March 2007
Catchwords: Native title — future acts — applications for determination for the grant of exploration and prospecting licences — named applicants decline to sign state deed — regional standard heritage agreement — dismissal 148(a) — no jurisdiction
Legislation:Native Title Act 1993 (Cth), ss 29, 30(2), 31(1)(b), 35, 38, 41A(1)(a), 109, 148(a)
Cases:Aubrey Lynch and Others on behalf of the Wongatha People/Mr Geoffrey Alfred Ashwin and Others on behalf of the Wutha People/Western Australia/Brian R Cahill, NNTT WF06/28, [2006] NNTTA 105 (4 August 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing dates: 21 August 2006, 21 September 2006, 29 September 2006,
12 October 2006, 2 November 2006, 3 November 2006,
16 November 2006, 24 November 2006, 20 December 2006, 2 March 2007
Counsel for the
Wongatha, Koara Mr Murray Hutchings
and Koara no.3 Goldfields Land and Sea Council
native title parties:
Representative of the Mr Ron Parker
Wutha native title Australian Interaction Consultants
party:
Representative of the Ms Lisa Bowyer
grantee party: Great Gold Mines NL
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background facts
The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the following future acts being the grant of exploration and prospecting licences ('the proposed licences') to Mount Kersey Mining NL ('the grantee party') and included in each notice a statement that it considered the grants attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act):
·P37/5775 – notice issued 10 June 1998, 188.55 hectares, located 12km northerly of Leonora in the Shire of Leonora
·P37/5776 – notice issued 10 June 1998, 173.62 hectares, located 11km northerly of Leonora in the Shire of Leonora
·E37/536 – notice issued 8 July 1998, 24.06 square kilometres, located 20 kilometres northerly of Leonora in the Shire of Leonora
The grantee party has since registered a change of name to Great Gold Mines NL.
Five objections to the expedited procedure were lodged by native title parties in respect of the proposed licences and by 23 June 1999 the Tribunal made consent determinations in respect of each of the objections that the expedited procedure was not attracted. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied to all of the proposed licences from the dates each consent determination was made.
On 20 July 2006, being a date more than six months after the s 29 notice was given the Wongatha native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The Wongatha native title party requested that the future act determination be made by consent.
At the time the application was lodged the native title parties with respect to the proceedings were said to be:
·Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Tomashisha Passmore on behalf of the Wongatha People (WC99/1 – registered from 10 February 2000) (‘Wongatha native title party’)
·Mr Geoffrey Alfred Ashwin, Mr Ralph Edward Ashwin, Mr Raymond William Ashwin and Mrs June Ashwin on behalf of the Wutha People (WC99/10 – registered from 15 June 1999) (‘Wutha native title party’)
·Richard Guy Evans and Ted Coomanoo Evans on behalf of the Koara People (WC95/1 – registered from 9 September 1995 to 29 August 2003) ('Koara native title party')
·Richard Guy Evans and Ted Coomanoo Evans on behalf of Koara No.3 (WC95/22 – registered from 7 July 1995 to 29 August 2003) ('Koara no.3 native title party')
The Koara and Koara no.3 native title parties' claims were combined into the Koara People’s native title claim WC99/5 on 11 January 1999 and remained on the Register of Native Title Claims until the WC99/5 combined claim was not accepted for registration on 24 August 2003. As a result, the Koara and Koara no.3 native title parties' claims were removed from the Register on or about 29 August 2003. Nevertheless, it was my opinion that, pursuant to the transitional provisions of the Native Title Amendment Act 1998 (Schedule 5, Part 2, Items 4(2) and 11(11); Bullen v WA [1999] FCA 1490), the Koara and Koara no.3 native title parties' right to negotiate was preserved to the extent that these claims overlapped the proposed licences.
Each of the proposed licences is 100 per cent overlapped by the claims of the Wongatha and Wutha native title parties. In addition, P37/5775 and P37/5776 are overlapped by the claim of the Koara native title party at 100 per cent and E37/536 is overlapped by the claims of the Koara and Koara no.3 native title parties at 93.41 per cent and 6.59 per cent respectively.
The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The inquiry in relation to the Wongatha, Koara and Koara no.3 native title parties
On 21 August 2006 and 21 September 2006 the Tribunal conducted hearings at which the Wongatha, Koara and Koara no.3 native title parties were legally represented by Mr Murray Hutchings, a solicitor employed by the Goldfields Land and Sea Council. Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party and Mr Bowyer represented the grantee party. Ms Bowyer confirmed that the grantee party had executed Regional Standard Heritage Agreements ('RSHAs') in favour of the Wongatha, Koara and Koara no.3 native title parties. Mr Hutchings asserted, by way of two affidavits dated 12 July 2006 and 4 September 2006 that he was satisfied he had been sufficiently instructed by the Wongatha, Koara and Koara no.3 native title parties to consent to the determination. No further hearings were held in relation to the Wongatha, Koara and Koara no.3 native title parties.
The inquiry in relation to the Wutha native title party
At the hearing on 21 August 2006 the grantee party representative also advised that it held RSHAs for the proposed licences which had been fully executed by the grantee party and by all of the persons comprising the Wutha native title party applicant ('fully executed RSHAs'). Copies of the fully executed RSHAs, each dated 16 February 2005, were subsequently forwarded to the Wutha native title party and the Tribunal. Given that an agreement under s31(1)(b) of the Act ('State Deed') had not been executed, the grantee party representative requested an adjournment to 21 September 2006 in order to negotiate such.
On 21 September 2006 the Tribunal conducted a hearing at which the representatives of the grantee party, Government party and Wutha native title party were present. The Wutha native title party was represented by Mr Ron Parker. At the hearing I directed that the Wutha native title party representative seek instructions and advise whether it wished to execute a State Deed, consent to a determination or otherwise.
At each of the subsequent four hearings on 29 September 2006, 12 October 2006, 2 November 2006 and 3 November 2006 either Mr Parker or his assistant Nadia Ayliffe attended and indicated that instructions were still being sought. At the hearing on 16 November 2006, the Wutha native title party representative advised that he had been instructed to request the grantee party execute the Wutha native title party's Alternative Heritage Agreement ('AHA'). Despite concerns that it had already negotiated and executed a Regional Standard Heritage Agreement with the Wutha native title party, the grantee party representative indicated that it would consider executing the AHA if the terms were not dissimilar to that of the RSHA. If the terms were not acceptable to the grantee party, then it would reluctantly seek a determination from the Tribunal. Accordingly I directed that the Wutha native title party representative forward the AHA to the grantee party by 17 November 2006 and the grantee party representative seek instructions on the acceptability of the AHA before the next hearing on 24 November 2006.
At the hearing on 24 November 2006, the grantee party representative advised that the terms of the AHA were not acceptable and that the fully executed RSHA was preferred. Notwithstanding this, the grantee party indicated its willingness to negotiate over the AHA. With agreement of all parties I directed that the next hearing be held on 20 December 2006 to allow time for such negotiations.
At the hearing on 20 December 2006, the grantee party confirmed that negotiations had been unsuccessful and that it preferred the fully executed RSHA. Accordingly, with the support of the Government party, it requested that the matter proceed to a contested determination with regard to the Wutha native title party. I therefore made directions for the provision of material by each of the parties and a hearing on 2 March 2007.
At the hearing on 2 March 2007, the native title party had not yet complied with directions. I amended the directions allowing further time for compliance and advised the Wutha native title party representative that unless an agreement is reached and the Wutha native title party requests a determination by consent or the application is dismissed under s148(a), the matter was likely be determined by 20 April 2007 on the basis of the evidence before the Tribunal at that time.
Findings in relation to the Wongatha, Koara, Koara no.3 and Wutha native title parties
On 5 February 2007, the Wongatha native title claim application was dismissed in the Federal Court. The Koara, Koara no. 3 and Wutha native title claim applications were also dismissed to the extent that these overlapped any land or waters that were also the subject of the Wongatha native title determination application. The Wongatha claim application and the relevant area of the Wutha claim application were subsequently removed from the Register of Native Title Claims on 13 March 2007.
As a consequence, the Tribunal no longer has jurisdiction to deal with the application on the basis that the Wongatha, Koara, Koara no.3 and Wutha are no longer native title parties as defined in s 30(2) of the Act.
Decision
The application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Daniel O'Dea
Member
21 March 2007
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