Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Helen Mary Ansell

[2007] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Helen Mary Ansell, [2007] NNTTA 22 (21 March 2007)

Application No:        WF06/62

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)

- and -

Geoffrey Alfred Ashwin and Others on behalf of the Wutha People (WC99/10) (Wutha native title party)

- and -

The State of Western Australia (Government party)

- and -

Helen Mary Ansell (grantee party)

FUTURE ACT DETERMINATIONS

Tribunal:  Daniel O’Dea

Place:  Perth
Date:  21 March 2007

Catchwords:  Native title — future acts — application for determination for the grant of exploration and prospecting licences — dismissal s148(a) — no jurisdiction.

Legislation:  Native Title Act 1993 (Cth), ss 29, 30(2), 31(1)(b), 35, 38, 148(a)
  Mining Act 1978

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

Hearing date:  31 July 2006, 1 August 2006, 20 December 2006, 2 March 2007

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

Representative   Mr Ron Parker

of the Wutha  Australian Interaction Consultants

native title party:

Representative   Ms Kate Moran

of the grantee parties:         Hetherington Exploration & Mining Title Services P/L

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

1. On 13 July 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 E36/549 (‘the proposed licence’) under the Mining Act 1978 to Helen Mary Ansell (‘the grantee party’). The proposed licence is 102.74 square kilometres and is located 52 kilometres south westerly of Leinster in the Shire of Leonora.

2. The native title parties with respect to these proceedings are 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’)

3. The proposed licence is 100 per cent overlapped by the claims of the Wongatha and Wutha native title parties.

4. 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.

5. 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 native title party

1. 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, solicitor employed by the Goldfields Land and Sea Council.  Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party.  The grantee party was represented by Kate Moran. 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 native title party to consent to the determination.  No further hearings were held in relation to the Wongatha native title party.

The inquiry in relation to the Wutha native title party

1. On 7 November 2006, the Wutha native title party representative Mr Ron Parker advised the Government party that the Wutha native title party had not executed a RSHA or State Deed (an agreement of the kind contemplated in s 31(1)(b) of the Act). Consent had not been obtained from the Wutha native title party to allow the matter to be finalised by way of a consent determination that the act could be done. In order to redress this, the Wutha native title party representative sought time to negotiate a State Deed or consent determination with the grantee party.

2. Directions were set for Wutha native title party to provide submissions for the inquiry by 9 February 2007 with a Listing Hearing scheduled for 2 March 2007.  At the listing hearing on 2 March 2007, it was noted that the Wutha native title party had not complied with the directions previously made.

3. Consequently, the Tribunal amended the directions to allow further time and advised that the matter was likely to be determined by the 20 April 2007 on the basis of the evidence before the Tribunal at that time, unless an agreement is reached and the Wutha native title party requested a determination by consent.

Findings in relation to the Wongatha and Wutha native title parties

1. On 5 February 2007, prior to the amended compliance dates falling due, the Wongatha native title determination application was dismissed in the Federal Court. The Wutha native title determination application was also dismissed to the extent that it overlapped any land or waters that were also the subject of the Wongatha native title determination application.  The Wongatha determination application and the relevant area of the Wutha determination application were subsequently removed from the Register of Native Title Claims on 13 March 2007.

2. As a consequence, the Tribunal no longer has jurisdiction to deal with the application on the basis that the Wongatha native title party and Wutha native title party are no longer native title parties as defined in s 30(2) of the Act.

Decision

1. The application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member

21 March 2007