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 (WC95/1); Richard Guy Evans and..
[2006] NNTTA 129
•7 September 2006
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 (WC95/1); Richard Guy Evans and Anor on behalf of the Koara No.2 (WC95/12)/ Western Australia/ Aldo Werjutina; Trevor John Dixon and Jeremy Snaith; Allarrow Pty Ltd; Conquest MiningLtd; Robert Lee Griffiths [2006] NNTTA 129 (7 September 2006)
Application Nos: WF06/26, WF06/29, WF06/30, WF06/33 and WF06/60
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) (WF06/26; WF06/29; WF06/30; WF06/33; WF06/60)
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Geoffrey Alfred Ashwin and Others on behalf of the Wutha People (WC99/10) (Wutha native title party) (WF06/26; WF06/30; WF06/33)
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Richard Guy Evans and Anor on behalf of the Koara People (WC95/1) (Koara native title party) (WF06/26; WF06/30; WF06/60)
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Richard Guy Evans and Anor on behalf of the Koara No.2 (WC95/12) (Koara no.2 native title party) (WF06/26; WF06/29; WF06/33)
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The State of Western Australia (Government party)
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Aldo Werjutina (WF06/26)
Trevor John Dixon and Jeremy Snaith (WF06/29)
Allarrow Pty Ltd (WF06/30)
Conquest Mining Ltd (WF06/33)
Robert Lee Griffiths (WF06/60)
(grantee parties)
FUTURE ACT DETERMINATIONS
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 7 September 2006
Catchwords: Native title — future acts — applications for determination for the grant of prospecting licences — named applicants decline to sign state deed — regional standard heritage agreement — native title party as a whole consents to the determination — consent determination that the acts may be done.
Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38, 41A(1)(a), 109
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
Hearing date: 21 August 2006
Counsel for the
Wongatha, Koara Mr Murray Hutchings, Goldfields Land and Sea Council
and Koara no.2
native title party:
Representatives of the Mr Aldo Werjutina (WF06/26)
grantee parties: Mr Trevor John Dixon (WF06/29)
Mr George Lee, Advanced Tenement Services (WF06/30)
Ms Tanya Wood, Conquest Mining Ltd (WF06/33)
Mr Robert Lee Griffiths (WF06/60)
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 prospecting licences to the specified grantee parties which are the subject of the future act determination applications (‘the applications’). It 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).
WF06/26
P37/5702, P37/5704–5710 to Aldo Werjutina on 4 February 1998. The proposed licences are located in the Shire of Leonora. The size and location of each is as follows:· P37/5702 – 192.35 hectares, 39km northeasterly of Leonora
· P37/5704 – 199.91 hectares, 47km northeasterly of Leonora
· P37/5705 – 133.19 hectares, 47km northeasterly of Leonora
· P37/5706 – 104.07 hectares, 47km northeasterly of Leonora
· P37/5707 – 114.3 hectares, 47km northeasterly of Leonora
· P37/5708 – 176.36 hectares, 25km northeasterly of Leonora
· P37/5709 – 178.51 hectares, 25km northeasterly of Leonora
· P37/5710 – 177.07 hectares, 25km northeasterly of Leonora
WF06/29
P37/5732 to Trevor John Dixon and Jeremy Snaith on 4 February 1998. The proposed licence is 111.87 hectares and is located 41km northeasterly of Leonora in the Shire of Leonora.WF06/30
P37/5609–5612 to Allarrow Pty Ltd on 13 August 1997. The proposed licences are located in the Shire of Leonora. The size and location of each is as follows:· P37/5609 – 89.1 hectares, 21km northwesterly of Leonora
· P37/5610 – 199.93 hectares, 21km northwesterly of Leonora
· P37/5611 – 181.23 hectares, 20km northwesterly of Leonora
· P37/5612 – 159.73 hectares, 20km northwesterly of Leonora
WF06/33
P37/5749–5753 to Tudor Rose Holdings Pty Ltd on 13 May 1998. Tudor Rose Holdings Pty Ltd is a wholly owned subsidiary of Conquest Mining Ltd. The proposed licences are located in the Shire of Leonora. The size and location of each is as follows:· P37/5749 – 43.23 hectares, 19km easterly of Leonora
· P37/5750 – 116.91 hectares, 25km easterly of Leonora
· P37/5751 – 151.13 hectares, 25km northeasterly of Leonora
· P37/5752 – 150.7 hectares, 20km easterly of Leonora
· P37/5753 – 118.11 hectares, 21km easterly of Leonora
WF06/60
P39/3771 to Robert Lee Griffiths on 24 June 1998. The proposed licence is 78.57 hectares and is located 45km westerly of Laverton in the Shire of Laverton.The native title parties with respect to these proceedings are:
·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’) in respect of all the applications.
·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’) in respect of applications WF06/26, WF06/30 and WF06/33.
·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') in respect of applications WF06/26, WF06/30 and WF06/60.
·Richard Guy Evans and Ted Coomanoo Evans on behalf of the Koara No.2 (WC95/12 – registered from 9 September 1995 to 29 August 2003) ('Koara no.2 native title party') in respect of applications WF06/26, WF06/29 and WF06/33.
Each of the proposed licences is:
·100% overlapped by the registered claim of the Wongatha native title party.
·100% overlapped by the registered claim of the Wutha native title party with the exception of P37/5702 (84.72%), P37/5749 (0%), P37/5752 (0%) and P37/5753 (0%).
·100% overlapped by the Koara and Koara no.2 native title parties' claims with the exception of P37/5752 (77.7%) and P37/5753 (0%).
The Koara and Koara no.2 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.2 native title parties' claims were removed from the Register on or about 29 August 2003. Nevertheless, it is 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.2 native title parties' right to negotiate is preserved in relation to the proposed licences that fall within the boundaries of the two claim areas.
14 objections to the expedited procedure were subsequently lodged by native title parties. Six objections were later withdrawn and for the remaining objections, the Tribunal made consent determinations 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 13 and 14 July 2006, being dates more than six months after the s.29 notice was given the Wongatha native title party made applications pursuant to s.35 of the Act for future act determinations under s.38. The Wongatha native title party requested that the future act determinations be made by consent.
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).
Facts common to each application to which the Wutha native title party is a party (i.e. WF06/26, WF06/30 and WF06/33)
In respect of each of the subject applications to which the Wutha native title party is a party a s.31(1)(b) agreement ('State Deed') executed by the grantee party, Government party and the Wutha native title party has been lodged with the Tribunal by the Government party in accordance with s.41A(1)(a) of the Act. The Wutha native title party was advised of these proceedings but did not participate on the basis that it has executed State Deeds permitting the grant of the proposed licences in relation to which they are a native title party.
Facts common to each application to which the Koara or Koara no.2 native title party is a party (i.e. all applications)
In respect of each of the subject applications to which the Koara or Koara no.2 native title party is a party, the grantee party subsequently forwarded a statutory declaration indicating that it executed and forwarded to the Goldfields Land and Sea Council (‘GLSC’) a Regional Standard Heritage Agreement ('RSHA') in favour of the Koara or Koara no.2 native title party for the proposed licences which overlap the Koara or Koara no.2 native title party's claims.
Facts common to each application to which the Wongatha native title party is a party (i.e. all applications)
The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray Hutchings, barrister and solicitor employed by the GLSC for the Wongatha native title party, dated 12 July 2006. The contents of the affidavit and other evidence have been set out in 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, Hon C J Sumner (‘Cahill’) at paragraphs [7], [13]–[15] and are also applicable to this matter. Two of the persons (i.e. Elvis Stokes and Ron Harrington-Smith) named as part of the applicant for a determination of native title have refused to sign RSHAs and State Deeds agreed between the Wongatha native title party collectively and each of the grantee parties.
Minutes of consent determinations have been signed by the representatives of the grantee parties, the Government party and Wongatha native title party.
The inquiry
On 21 August 2006 the Tribunal conducted hearings at which the Wongatha, Koara and Koara no.2 native title parties were legally represented by Mr Murray Hutchings. Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party. In a number of matters the grantee party was represented at the hearing, in others, the Tribunal decided that attendance was not necessary given that a minute of consent determination had been executed by each grantee party.
Findings in relation to the Wongatha native title party
Mr Hutchings confirmed the facts in his affidavit and that the Wongatha native title party consents to the determination that the proposed licences may be granted.
I adopt the findings of The Hon CJ Sumner, Deputy President in Cahill at paragraphs [13]-[16] in particular that the Tribunal is satisfied that the Wongatha native title party collectively consents to the determination, despite the refusal of two of the persons jointly comprising the applicant to sign the State Deed.
Findings in relation to the Koara and Koara no.2 native title parties
Mr Hutchings advised that he had not yet sought instructions from the Koara and Koara no.2 native title parties on the grantee parties' offer of the RSHA but that he would do so at a claim meeting to be held on Friday 25 August 2006. Accordingly I directed that Mr Hutchings seek instructions from the Koara and Koara no.2 native title parties on the acceptability of the RSHA, the execution of the State Deeds or consent to a determination and provide an affidavit outlining the details of these instructions by Wednesday 30 August 2006.
On 6 September 2006 Mr Hutchings provided an affidavit dated 4 September 2006 which outlined the following:
Affidavit of Murray William Hutchings:
‘I Murray William Hutchings C/- The Goldfields Land and Sea Council, 14 Throssell Street Kalgoorlie, Solicitor make oath and say as follows:
1. I am a solicitor, employed by the Goldfields Land and Sea Council (“GLSC”).
2. I mainly work in the area of Future Acts.
3. As part of my role I represent the Koara People Native Title claim group. (WC99/5)
4. Earlier this year I received a number of State Deeds which had been forwarded to me by email and were prepared by the Department of Industry and Resources. Annexed hereto and marked "A" is a schedule detailing the tenements that were the subject matter of the State Deeds. ("the tenements")
5. The tenements, the subject matter of the State Deeds, are located within an area of overlap between the Koara People and Wongatha People Native Title Claim areas.
6. I refer to my previous affidavit dated 12 July 2006 filed in this matter filed on behalf of the Wongatha People. ("my first affidavit")
7. At the time of completing my first affidavit I was not aware that the tenements are located in an overlap area.
8. I subsequently convened a meeting of the 5 Koara applicants for Native title. The meeting was held on 25 August 2006 in Leonora.
9. Present at the meeting were:
a. Joan Tucker;
b. Geraldine Hogarth;
c. Dawn Evans;
d. Brett Lewis;
e. Nigel Dann as power of attorney for Richard Evans("the Applicants")
10. At the meeting I raised and discussed the issue with the Applicants. I explained to the Applicants that the tenements are located in a area of overlap between the Wongatha People Native Title claim and the Koara People Native Title claim.
11. I confirmed to the Koara applicants that the Wongatha Applicants had provided me with an authority to lodge a Consent Determination for the tenements to be granted.
12. At the meeting the following motion was passed:
The Koara applicants consent to the granting of the current applications for E and P's that fall within the Wongatha/Koara overlap area.
13. The motion was moved, seconded and voted on. There was a unanimous decision to pass the motion.
14. I believe, following the meeting, of the Koara Native Title Applicants I have the necessary authority to lodge Consent Determination Applications on behalf of the Koara Native Title claim group for the tenement applications contained in the schedule hereto’
All of the proposed licences are listed in the attached schedule.
On the basis of the affidavit provided by Mr Hutchings, I am satisfied that the Koara and Koara no.2 native title parties consent to the determinations. Although nothing turns on it in these circumstances, it is highly questionable whether an applicant can grant ‘a power of attorney’ to anyone to act in his or her stead in any process of authorisation required by the Act.
Determination
By consent the determinations of the Tribunal are that the acts being the grants of the following prospecting licences may be done.
· P37/5702, P37/5704, P37/5705, P37/5706, P37/5707, P37/5708, P37/5709 and P37/5710 to Aldo Werjutina
· P37/5732 to Trevor John Dixon and Jeremy Snaith
· P37/5609, P37/5610, P37/5611 and P37/5612 to Allarrow Pty Ltd
· P37/5749, P37/5750, P37/5751, P37/5752 and P37/5753 to Tudor Rose Holdings Pty Ltd
· P39/3771 to Robert Lee Griffiths
Daniel O'Dea
Member
7 September 2006
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