Aubrey Lynch and Others on behalf of the Wongatha People/Geoffrey Alfred Ashwin and Others on behalf of the Wutha People/Western Australia/Paul Winston Askins and Callum Baxter

[2006] NNTTA 116

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/Western Australia/Paul Winston Askins and Callum Baxter, [2006] NNTTA 116 (11 August 2006)

Application No:        WF06/37

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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The State of Western Australia (Government party)

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Paul Winston Askins and Callum Baxter (grantee party)

FUTURE ACT DETERMINATIONS

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  11 August 2006

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – 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 act 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:  Determination made on papers

Counsel for the  
native title party:                 Mr Murray Hutchings, Goldfields Land and Sea Council

Representative of the

grantee party:  Mr Paul Askins

Representatives of the         Mr Rod Wahl, State Solicitor’s Office
Government party:              Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 12 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence E29/560 (‘the proposed licence’) under the Mining Act 1978 (WA) to Paul Winston Askins (’the grantee party’).

2. The grantee party has since changed to Paul Winston Askins and Callum Baxter.

3. 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’)

   ·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’)

1. The proposed licence is 167.7 square kilometres and is located 49 kilometres south westerly of Leonora in the Shire of Menzies.  It entirely overlaps the registered claims of both the native title parties.

2. On 13 July 2006, being a date more than six months after the s 29 notice was given the Wongatha native title party made application pursuant to s 35 of the Act for a future act determination under s 38. The Wongatha native title party requested that the future act determination be made by consent.

3. A s 31(1)(b) agreement (i.e. State Deed) executed by the grantee and Government parties 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 a State Deed permitting the grant of the proposed licence in relation to which they are a native title party and consents to a determination in the terms sought.

4. Appended to the s 35 determination application is a minute of a consent determination executed by Mr Murray Hutchings on behalf of the Wongatha native title party, and since executed by Mr Paul Askins on behalf of the grantee party, and Ms Sheila Begg (State Solicitor’s Office) on behalf of the Government party.

5. 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 Goldfields Land and Sea Council (‘GLSC’) for the Wongatha native title party, dated 12 July 2006.  The contents of the affidavit and other evidence have been set out in my reasons for decision 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 paras [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 agreements entered into by the Wongatha native title party collectively.  Representatives of the Wongatha native title party and the two persons comprising the grantee party have executed a Regional Standard Heritage Agreement in relation to the proposed licence.

The inquiry

1. Given the facts common to Cahill the Tribunal has decided that it can determine the application on the papers.

Findings in relation to the Wongatha native title party

1. As the law and facts relating to the Wongatha native title party’s consent to a determination that the proposed licence may be granted are the same as considered in Cahill,I adopt the findings from the following paragraphs of those reasons for the purposes of the determination.

2. Para [9] that the Tribunal has power to make a consent determination.

3. Paras [13]-[15] dealing with the facts giving rise to the applications for a consent determination.

4. Para [15] including the findings relating to the responsibilities of the GLSC as the recognised representative body under the Act to protect the interests of native title holders, the manner in which the Tribunal is to carry out its functions under s 109 of the Act and that the Tribunal is entitled to accept as evidence the advice of the GLSC’s legal representations on whether the appropriate consent has been given by the Wongatha native title party.

5. Para [16] including that I am 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.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E29/560 to Paul Winston Askins and Callum Baxter, may be done.

Hon C J Sumner
Deputy President

11 August 2006