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

[2006] NNTTA 105

NATIONAL NATIVE TITLE TRIBUNAL

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, [2006] NNTTA 105 (4 August 2006)

Application No:        WF06/28

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

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IN THE MATTER of an inquiry into a future act determination application

Aubrey Lynch and Others on behalf of the Wongatha People (WC99/1) (Wongatha native title party)

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Mr 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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Brian R Cahill (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  4 August 2006

Catchwords:  Native title – future act – application for determination for the grant of prospecting 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, 203B(4), 203BB(1)(b), 203BC

Cases:Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12 [2004] NNTTA 62 (16 July 2004), Hon C J Sumner

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner

Hearing date:  31 July 2006

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

Representative of the          
grantee party:  Mr Brian R Cahill

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

1. On 16 June 1999, 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 prospecting licence P29/1642 (‘the proposed licence’) under the Mining Act 1978 (WA) to Brian R Cahill (’the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. 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.  The right to negotiate secured by an earlier related application was retained) (‘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’)

3. The proposed licence is 121.45 hectares and is located 80 kilometres westerly of Leonora in the Mining Registrar’s district of Kalgoorlie.  It entirely overlaps the registered claims of both native title parties.

4. On 8 September 1999, the Wutha native title party lodged an objection to the inclusion of the expedited procedure statement with the Tribunal (WO99/139). On 8 November 1999 the Tribunal made a consent determination that the expedited procedure was not attracted. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied from this date.

5. On 13 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.

1. The Wongatha native title party requested that the future act determination be made by consent and appended to the s 35 determination application a minute of a consent determination in the following terms, executed by Mr Murray Hutchings, barrister and solicitor, on behalf of the Wongatha native title party, and since executed by Mr Brian Cahill on behalf of the grantee party, and Ms Sheila Begg (State Solicitor’s Office) on behalf of the Government party:

‘CONSENT DETERMINATION UNDER SECTION 38 OF

THE NATIVE TITLE ACT 1993 (CTH)

1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.

2. The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Prospecting Licence 29/1642 may be done.’

4. The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray Hutchings, solicitor for the Wongatha native title party, dated 12 July 2006:

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 Wongatha People Native Title claim group. (WC99/1)

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.

5.     On receipt of the State Deeds I always follow a procedure whereby the State Deeds are delivered to the North East Independent Body (“NEIB”).  The NEIB is an entity set up by the Wongatha People to deal with business for the Wongatha People.  The NEIB arranges to have the Wongatha Applicants execute the State Deeds.

6.     I am informed and verily believe that the NEIB attempted to obtain the signatures of each of the Applicants on the State Deeds.  The NEIB could not obtain all the necessary signatures as at least 2 Applicants refused to sign the documents.

7.     On the 31 May 2006 I convened a meeting of the Wongatha Native Title Party Applicants.  There are 12 Applicants named on the Wongatha People’s Native Title claim. Eight of the 12 Applicants were present at the meeting.

8.     Present at the meeting were:

a.   Murray Stubbs              (Applicant)
b.   Pearlie Wells                  (Applicant)
c.   Thelma O’Loughlin       (Applicant)
d.   Cyril Barnes                  (Applicant)
e.   Aubrey Lynch               (Applicant)
f.    Thomasisha Passmore     (Applicant)
g.   Leo Thomas                 (Applicant)

h.   Elvis Stokes                   (Applicant)

9.     Apologies were accepted from Garry Sullivan (Power of Attorney for Dimple Sullivan, Applicant)

10.   Non-attendees at the meeting were:

a.   Sadie Canning               (Applicant)
b.   Ron Harrington-Smith     (Applicant)

c.   Les Tucker  (Applicant)

11.   After some discussion the following resolution was moved by Aubrey Lynch and seconded by Thomasisha Passmore:

Subject to a Heritage Agreement being signed by the Wongatha Representatives and the Mining Company/Prospector Representatives, the majority of the Wongatha Native Title Claim Applicants authorize and directs, GLSC Solicitor Murray Hutchings, to bring s35 Consent Determinations in circumstances where the minority of Applicants will knot [sic] sign State Deeds. This motion applies to applications for exploration and prospecting only.

12.   Following the meeting referred to above and with the assistance of the Department of Industry and Resources, I have prepared form 5 Consent Determinations for each of the applications the subject of the State Deeds. Both the Wongatha claim representatives and the Mining company or prospecting representatives have signed Goldfields Regional Standard Heritage Agreements.

13.   Attached hereto and marked “Schedule A” is a list of the Mining entities and the tenement number applications.

14.    I believe, following the meeting, of the Wongatha Native Title Applicants I have the  necessary authority to bring Consent Determination Applications on behalf of the Wongatha Native Title claim group.’

1. Schedule A of Mr Hutchings’ affidavit contains a list of exploration and prospecting licence applications and the respective grantee parties to which they relate.  Included in the list is the proposed licence and grantee party in this matter.

2. 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).

3. On 18 July 2006 a copy of an agreement in the form of a s 31(1)(b) agreement ('State Deed') executed by the grantee and Government parties and the Wutha native title party was lodged with the Tribunal by the Government party in accordance with s 41A(1)(a) of the Act. However, this State Deed does not comprise an agreement of the kind mentioned in paragraph 31(1)(b) of the Act, as such an agreement must be between the Government party, the grantee party and each of the native title parties. As there is no State Deed executed by the Wongatha native title party the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.

The inquiry

1. On 31 July 2006, the Tribunal conducted a hearing at which the Wongatha native title party was legally represented by Mr Murray Hutchings.  Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party.  Mr Brian Cahill appeared for the grantee party.

Wutha native title party

1. The Wutha native title party was advised of the hearing date but did not participate in the proceedings on the basis that it has executed a State Deed permitting the grant of the proposed licence. Given that the State Deed has been fully executed by the Wutha native title party and lodged with the Tribunal by the Government party in accordance with s 41A(1)(a) of the Act, I am satisfied that the Wutha native title party have agreed to the grant of the proposed licence and consent to a determination in the terms sought.

Wongatha native title party

1. The representatives of the Government and grantee parties and the Wongatha native title party confirmed their consent to the determination in the terms sought.  Mr Hutchings supplemented the evidence in his affidavit by informing the Tribunal that the two named applicants who have refused to sign the State Deed are Elvis Stokes and Ron Harrington-Smith.  Not all the other named applicants had signed but their signatures were not sought because Mr Hutchings was aware that neither Mr Stokes nor Mr Harrington-Smith would sign.  Mr Hutchings has been informed by North East Independent Body (‘NEIB’) that Mr Harrington-Smith has been approached about signing documents such as the State Deed but has refused to do so.

2. With respect to the motion referred to in para 11 of his affidavit Mr Hutchings advised that the motion was carried unanimously.  Mr Stokes was present at the meeting, did not vote against the motion but has subsequently refused to sign the State Deed.  Mr Hutchings also advised that the Goldfields Regional Standard Heritage Agreement (‘RSHA’) referred to in para 12 of his affidavit had been signed by three of the named applicants, namely Leo Thomas, Aubrey Lynch and Cyril Barnes.  These persons are authorised by the Wongatha native title party to sign agreements of this kind on its behalf.  Mr Hutchings further advised that he was satisfied that the facts set out in the application, affidavit evidence and supplementary evidence provided at the hearing were correct and that he and the Goldfields Land and Sea Council (‘GLSC’) had been properly instructed by the Wongatha native title party to consent to the determination.  He also informed the Tribunal that the ancillary agreement signed on behalf of the Wongatha native title party and by the grantee party was the RSHA for exploration and prospecting endorsed by the GLSC, the Government party and industry which the Tribunal is aware contains provisions to protect Aboriginal heritage.

3. I accept, based on the information provided in the affidavit of Mr Hutchings that the NEIB has been set up by the Wongatha native title applicant to deal with its business (which includes future acts). Further, the Wongatha named applicants (or more accurately named persons jointly comprising the applicant) have the authority of the claimant group to make decisions in accordance with the Act. As the recognised representative body under the Act, GLSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). The Tribunal is entitled to accept as evidence the advice of GLSC’s representative on whether the appropriate consent has been given by the Wongatha native title party.

4. The Tribunal has previously decided that it is appropriate to make a determination by consent in the event that a named applicant (or more accurately a person jointly comprising the applicant) refuses to sign a Ancillary Agreement or State Deed (i.e. a s 31(1)(b) agreement) (see for example Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner). The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20] and Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner at [13]-[28]). I am satisfied that, despite the refusal of some named applicants to sign the State Deed, the Wongatha native title party collectively consents to the determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence P29/1642 to Brian R Cahill, may be done.

Hon C J Sumner
Deputy President

4 August 2006