Aubrey Lynch and Others on behalf of the Wongatha People; Geoffrey Alfred Ashwin and Others on behalf of the Wutha People/Western Australia/Wayne Vincent Halloran and Neale Graeme Johnson; Bronzewing Gold Ltd;
[2006] NNTTA 106
•4 August 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/Western Australia/Wayne Vincent Halloran and Neale Graeme Johnson; Bronzewing Gold Ltd; Anglogold Ashanti Australia Ltd; Giralia Resources NL; Great Gold Mines NL; Christopher Gerrard Dashorst; Frontier Mining Pty Ltd; Kundana Gold Pty Ltd and Plutonic (Baxter) Pty Ltd; Tarmoola Australia Pty Ltd; Heron Resources Ltd; Adelaide Prospecting Pty Ltd; Telferscot Nominees Pty Ltd; Dalrymple Resources NL; Robert Adam Harrison, [2006] NNTTA 106 (4 August 2006)
Application Nos: WF06/31; WF06/34; WF06/35; WF06/36; WF06/38; WF06/40; WF06/41; WF06/46; WF06/47; WF06/53; WF06/57; WF06/58; WF06/59; WF06/61; WF06/63
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
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) (WF06/31, WF06/34, WF06/35, WF06/36, WF06/38, WF06/40, WF06/41, WF06/46, WF06/47, WF06/53, WF06/57, WF06/58; WF06/59, WF06/61, WF06/63)
- and -
Geoffrey Alfred Ashwin and Others on behalf of the Wutha People (WC99/10) (Wutha native title party) (WF06/31, WF06/36, WF06/41, WF06/47, WF06/59)
- and -
The State of Western Australia (Government party)
- and -
Wayne Vincent Halloran and Neale Graeme Johnson (WF06/31)
Bronzewing Gold Ltd (WF06/34)
Anglogold Ashanti Australia Ltd (WF06/35)
Giralia Resources NL (WF06/36)
Great Gold Mines NL (WF06/38)
Christopher Gerrard Dashorst (WF06/40)
Frontier Mining Pty Ltd (WF06/41)
Kundana Gold Pty Ltd and Plutonic (Baxter) Pty Ltd (WF06/46)
Tarmoola Australia Pty Ltd (WF06/47)
Heron Resources Ltd (WF06/53)
Adelaide Prospecting Pty Ltd (WF06/57 and WF06/58)
Telferscot Nominees Pty Ltd (WF06/59)
Dalrymple Resources NL (WF06/61)
Robert Adam Harrison (WF06/63)
(grantee parties)
FUTURE ACT DETERMINATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 4 August 2006
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 - 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: 31 July 2006, 1 August 2006
Counsel for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representative of the grantee parties:
Mr Wayne Blitterswyk for Wayne Vincent Halloran and Neale Graeme Johnson (WF06/31)
Mr David Hamlyn for Bronzewing Gold Ltd (WF06/34)
Shannon McMahon, McMahon Mining Titles Services Pty Ltd for Anglogold Ashanti Australia Ltd (WF06/35)
Mr Mike Joyce, Giralia Resources NL for Giralia Resources NL (WF06/36)
Ms Lisa Bowyer, Axis Consultants for Great Gold Mines NL (WF06/38)
Mr Daniel Matich, D and L Tenement Services for Christopher Gerrard Dashorst (WF06/40)
Mr Daniel Matich, D and L Tenement Services for Frontier Mining Pty Ltd (WF06/41)
Mr John Clarke, Wanati Pty Ltd for Kundana Gold Pty Ltd and Plutonic (Baxter) Pty Ltd (WF06/46)
Mr John Clarke, Wanati Pty Ltd for Tarmoola Australia Pty Ltd (WF06/47))
Ms Lisa Bowyer, Axis Consultants for Heron Resources Ltd and Great Gold Mines NL (WF06/53)
Mr Dennis Hawtin, Adelaide Prospecting Pty Ltd (WF06/57)
Mr Chris Clegg, Statewide Tenement & Advisory Services for Adelaide Prospecting Pty Ltd (WF06/58)
Mr Mike Wheeler, Tenemaint Exploration Services for Telferscot Nominees Pty Ltd (WF06/59)
Mr Brenton Parry, Western Tenement Services for Dalrymple Resources NL (WF06/61)
Mr Mike Wheeler, Tenemaint Exploration Services for Robert Adam Harrison WF06/63)
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 and exploration licences to the specified grantee parties which are the subject of the future act determination applications (‘the applications’).
(1)WF06/31
Prospecting licence P37/6674 to Wayne Vincent Halloran and Neale Graeme Johnson on 20 April 2005. The proposed licence is 144.18 hectares and is located 17 kilometres north easterly of Leonora in the Shire of Leonora.
(2)WF06/34
Exploration licence E38/1618 to Bronzewing Gold NL on 13 July 2005. Bronzewing Gold NL has since changed its name to Bronzewing Gold Ltd. The proposed licence is 39.22 square kilometres and is located 34 kilometres northerly of Laverton in the Shire of Laverton.
(3)WF06/35
Exploration licences E38/809 and E38/812 to Anglogold Ashanti Australia Ltd on 13 December 1995. Acacia Resources Ltd changed its name to Anglogold Australia Ltd and has since changed its name to Anglogold Ashanti Australia Ltd. The proposed licences together comprise an area of 19.6 square kilometres. Details of each of the proposed licences are as follows:
· E38/809 – 901.01 hectares, located 21 kilometres south easterly of Laverton in the Shire of Laverton.
· E38/812 – 1200.41 hectares, located 31 kilometres south easterly of Laverton in the Shire of Laverton.
(4)WF06/36
Exploration licence E37/756 to Giralia Resources NL on 20 April 2005. The proposed licence is 9.06 square kilometres and is located 8 kilometres north easterly of Leinster in the Shire of Leonora.
(5)WF06/38
· Exploration licences E40/112 and E40/113 to Mount Kersey Mining NL on 13 August 1997. E40/112 is 29.91 square kilometres, 42 kilometres southerly of Leonora and E40/113 is 8.97 square kilometres, 48 kilometres southerly of Leonora. The proposed licences are located in the Shire of Menzies.
· Prospecting licence P40/1068 to Mount Kersey Mining NL on 18 February 1998. The proposed licence is 19.48 hectares, 57 kilometres north easterly of Menzies and is located in the Shire of Menzies.
· Exploration licence E37/528 to Mount Kersey Mining NL on 18 March 1998. The proposed licence is 5.99 square kilometres, 16 kilometres south easterly of Leonora in the Shire of Leonora.
· Prospecting licences P40/1069 and P40/1070 to Mount Kersey Mining NL on 1 April 1998. P40/1069 is 159.94 hectares, 38 kilometres southerly of Leonora and P40/1070 is 104.23 hectares, 38 kilometres southerly of Leonora. The proposed licences are located in the Shire of Menzies.
· Exploration licence E40/138 to Mount Kersey Mining NL on 13 May 1998. The proposed licence is 2.99 square kilometres, 25 kilometres southerly of Leonora in the Shires of Menzies and Leonora.
· Exploration licence E40/145 to Mount Kersey Mining NL on 24 June 1998. The proposed licence is 17.96 square kilometres, 37 kilometres southerly of Leonora in the Shire of Menzies.
· Exploration licences E37/543 and E39/715 to Mount Kersey Mining NL on 8 July 1998. E37/543 is 8.99 square kilometres, 16 kilometres southerly of Leonora and E39/715 is 26.77 square kilometres, 129 kilometres southerly of Laverton. The proposed licences are located in the Shire of Leonora.
Mount Kersey Mining NL changed its name to Gutnick Resources NL and has since changed its name to Great Gold Mines NL.
(6)WF06/40
Prospecting licences P37/6729 to P37/6735 and P37/6793 to Christopher Gerrard Dashorst on 1 June 2005. The proposed licences are located in the Shire of Leonora. The size and location of each is as follows:
· P37/6729 – 108.67 hectares, 35 kilometres easterly of Leonora.
· P37/6730 – 120.06 hectares, 34 kilometres easterly of Leonora.
· P37/6731 – 165.06 hectares, 29 kilometres easterly of Leonora.
· P37/6732 – 181.78 hectares, 29 kilometres easterly of Leonora.
· P37/6733 – 199.9 hectares, 30 kilometres easterly of Leonora.
· P37/6734 – 141.25 hectares, 30 kilometres easterly of Leonora.
· P37/6735 – 162.21 hectares, 30 kilometres easterly of Leonora.
· P37/6793 – 99.95 hectares, 35 kilometres easterly of Leonora.
(7)WF06/41
Exploration licence E30/294 to Frontier Mining Pty Ltd on 20 April 2005. The proposed licence is 11.93 square kilometres and is located 51 kilometres westerly of Menzies in the Shire of Menzies.
(8)WF06/46
Exploration licence E39/740 to Kundana Gold Pty Ltd and Plutonic (Baxter) Pty Ltd on 5 October 2005. The proposed licence is 5.96 square kilometres and is located 95 kilometres southerly of Laverton in the Shire of Menzies.
(9)WF06/47
· Prospecting licences P37/6146 and P37/6147 to Tarmoola Australia Pty Ltd on 30 May 2001. P37/6146 is 42.18 hectares, 86 kilometres south easterly of Leinster and P37/6147 is 160.3 hectares, 86 kilometres south easterly of Leinster. The proposed licences are located in the Shire of Leonora.
· Prospecting licences P37/6216 and P37/6217 to Tarmoola Australia Pty Ltd on 27 June 2001. P37/6216 is 102.24 hectares, 85 kilometres south easterly of Leinster and P37/6217 is 103.3 hectares, 84 kilometres south easterly of Leinster. The proposed licences are located in the Shire of Leonora
(10)WF06/53
Prospecting licence P31/1575 to Heron Resources NL on 18 March 1998. The proposed licence is 171.99 hectares and is located 124 kilometres southerly of Laverton in the Shire of Menzies. Heron Resources NL has since changed its name to Heron Resources Ltd.
(11)WF06/57
Exploration licence E38/1623 to Adelaide Prospecting Pty Ltd on 12 January 2005. The proposed licence is 3 square kilometres and is located 29 kilometres south easterly of Laverton in the Shire of Laverton.
(12)WF06/58
Prospecting licences P38/3224 to P38/3230 inclusive to Adelaide Prospecting Pty Ltd on 20 April 2005. The proposed licences are located in the Shire of Laverton. The size and location of each is as follows:
·P38/3224 – 172.23 hectares, located 24 kilometres southerly of Laverton.
·P38/3225 – 172.33 hectares, located 26 kilometres southerly of Laverton.
·P38/3226 – 169.81 hectares, located 26 kilometres southerly of Laverton.
·P38/3227 – 169.87 hectares, located 24 kilometres southerly of Laverton.
·P38/3228 – 120.70 hectares, located 26 kilometres southerly of Laverton.
·P38/3229 – 106.75 hectares, located 29 kilometres southerly of Laverton.
·P38/3230 – 137.60 hectares, located 31 kilometres southerly of Laverton.
(13)WF06/59
Exploration licence E38/1428 to Telferscot Nominees Pty Ltd on 20 April 2005. The proposed licence is 42.76 square kilometres and is located 70 kilometres north westerly of Cosmo Newberry Mission in the Shire of Laverton.
(14)WF06/61
Exploration licences E40/120, E40/131 and E40/146 to Dalrymple Resources NL on 4 March 1998, 29 April 1998 and 24 June. The proposed licences are located in the Shires of Leonora and Menzies. The size and location of each is as follows:
·E40/120 – 5.99 square kilometres, located 76 kilometres north easterly of Menzies.
·E40/131 – 2.99 square kilometres, located 34 kilometres southerly of Leonora.
·E40/146 – 2.99 square kilometres, located 33 kilometres southerly of Leonora.
(15)WF06/63
Prospecting licences P39/4313 to P39/4315 inclusive to Robert Adam Harrison on 1 June 2005. The proposed licences are located in the Shire of Laverton. The size and location of each is as follows:
·P39/4313 – 29.37 hectares, located 33 kilometres south westerly of Laverton.
·P39/4314 – 9.29 hectares, located 32 kilometres south westerly of Laverton.
·P39/4315 – 35.19 hectares, located 33 kilometres south westerly 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. Each of the proposed licences is entirely overlapped by the registered claim of the 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’) in respect of applications WF06/31, WF06/36, WF06/41, WF06/47 and WF06/59. Each of the proposed licences the subject of these applications is entirely overlapped by the Wutha native title party.
With respect to WF06/35, WF06/38, WF06/47, WF06/53 and WF06/61, the Government party included in the above notices a statement that it considered that 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). As a result, 24 objections to the expedited procedure were subsequently lodged by native title parties. Five objections were withdrawn via agreement reached between the native title and grantee parties 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 the subject of WF06/35, 38, 47, 53 and 61 from the dates each consent determination was made.
On 13 July 2006, being a date more than six months after the s 29 notice was given the Wongatha native title party made the applications the subject of these reasons pursuant to s 35 of the Act for future act determinations under s 38. The Wongatha native title party requested that the future act determination be made by consent.
Facts common to each application to which the Wutha native title party is a party (i.e. WF06/31, WF06/36, WF06/41, WF06/47 and WF06/59)
In respect of each of the subject applications to which the Wutha native title party is a party 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 licences in relation to which they are a native title party and consents to a determination in the terms sought.
Facts common to each application to which the Wongatha native title party is a party
Appended to the s 35 determination applications are minutes of consent determinations signed by representatives of each of the parties.
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.
The inquiry
On 31 July 2006 and 1 August 2006 the Tribunal conducted hearings at which the Wongatha native title party was legally represented by Mr Murray Hutchings. Mr Rod Wahl, Ms Janice Goodwin and Ms Faye Mitchell appeared for the Government party. In a number of matters the grantee party was represented, in others, the Tribunal decided, given the facts common to each application, that it could decide the matters on the papers. In relation to all matters Mr Hutchings has confirmed that the facts relating to the Wongatha native title party’s consent are the same as considered in Cahill except that the tenements and grantee parties are different. He also confirmed that his affidavit relates to all the prospecting and exploration licences the subject of this determination.
Findings in relation to the Wongatha native title party
As the law and facts relating to the Wongatha native title party’s consent to a determination that the proposed licences 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 of the present applications.
Para [9] that the Tribunal has power to make a consent determination.
Paras [13]-[15] dealing with the facts giving rise to the applications for a consent determination.
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.
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
By consent the determinations of the Tribunal are that the acts being the grants of the following prospecting and exploration licences may be done.
· Prospecting licence P37/6674 to Wayne Vincent Halloran and Neale Graeme Johnson.
· Exploration licence E38/1618 to Bronzewing Gold Ltd.
· Exploration licences E38/809 and E38/812 to Anglogold Ashanti Australia Ltd
· Exploration licence E37/756 to Giralia Resources NL
· Exploration licences E37/528, E37/543, E39/715, E40/112, E40/113, E40/138, E40/145 and prospecting licences P40/1068, P40/1069, P40/1070 to Great Gold Mines NL
· Prospecting licences P37/6729, P37/6730, P37/6731, P37/6732, P37/6733, P37/6734, P37/6735 and P37/6793 to Christopher Gerrard Dashorst.
· Exploration licence E30/294 to Frontier Mining Pty Ltd.
· Exploration licence E39/740 to Kundana Gold Pty Ltd and Plutonic (Baxter) Pty Ltd.
· Prospecting licences P37/6146, P37/6147, P37/6216 and P37/6217 to Tarmoola Australia Pty Ltd.
· Prospecting licence P31/1575 to Heron Resources Ltd.
· Exploration licence E38/1623 to Adelaide Prospecting Pty Ltd
· Prospecting licences P38/3224, P38/3225, P38/3226, P38/3227, P38/3228, P38/3229 and P38/3230 to Adelaide Prospecting Pty Ltd.
· Exploration licence E38/1428 to Telferscot Nominees Pty Ltd
· Exploration licences E40/120, E40/131 and E40/146 to Dalrymple Resources NL.
· Prospecting licences P39/4313, P39/4314 and P39/4315 to Robert Adam Harrison.
Hon C J Sumner
Deputy President
4 August 2006
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