Aubrey Lynch and Others on behalf of the Wongatha People /Western Australia/ Heron Resources Nl
[2006] NNTTA 162
•20 December 2006
NATIONAL NATIVE TITLE TRIBUNAL
Aubrey Lynch and Others on behalf of the Wongatha People /Western Australia/ Heron Resources NL, [2006] NNTTA 162 (20 December 2006)
Application No: WF06/50
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) (native title party)
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The State of Western Australia (Government party)
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Heron Resources NL (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 20 December 2006
Catchwords: Native title — future acts — applications for determination for the grant of exploration licences — Right to Negotiate and pre-combination claimant applications — transitional provisions — impact of subsequent removal from Register — 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 29, 31(1)(b), 35, 38, 190A Native Title Amendment Act 1998, Schedule 5, Part 2, 11(11)(a)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Bullen and another (Esperance Nyungars) v The Native Title Registrar and National Native Title Tribunal and State of WA W6001 of 1999
Strickland & Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1530 (4 November 1999)
Koara People v State of Western Australia [2006] FCA 66 (9 February 2006), Nicholson J
Hearing dates: 23 August 2006; 9 October 2006
Representative of Mr Murray Hutchings, Goldfields Land and Sea Council
the Native Title Party:
Representative of the Mr John Clarke, Wanati Pty Ltd
Grantee Party:
Representatives of the Mr David Crabtree, Department of Industry and Resources
Government party: Mr Trevor Creewel, State Solicitor’s Office
Mr Rod Wahl, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
Background facts
On 17 March 1997, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act being the grant of exploration licence E28/604 (“the proposed licence”) to Heron Resources NL. Included in the s 29 notices was a statement that the government party 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). The proposed licence is located 104km north easterly of Kalgoorlie-Boulder and encompasses an area of some 4.02 square kilometres.
The native title party with respect to this proceeding and the extent to which its registered claim overlaps the proposed licence, is as follows:
·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’) – 100 per cent overlap
The Wongatha native title party’s current native title determination application (WC99/1) results from an order to combine a number of earlier applications lodged by various then native title parties, made by the Federal Court on 22 January 1999. This claim was initially entered on the Register of Native Title Claims on 10 February 2000. The application was further registration tested in 2006; its status was confirmed and the claim has therefore been continuously registered since 2000.
As indicated at [1] above, the Government party asserted that the grant of the proposed licence was an act that attracted the expedited procedure. On 26 May 1997, Trevor Brownley on behalf of the Bibila Lungutjarra (Wajen) (WC96/12) lodged an objection to the inclusion of the expedited procedure statement (WO97/90). On 21 October 1997, the Tribunal issued a determination, with the consent of the parties, that the grant of the proposed licence is not an act attracting the expedited procedure. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied from this date.
On 13 July 2006, being a date more than six months after the s 29 notice as issued, Goldfields Land and Sea Council (on behalf of the Wongatha native title party) lodged an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence and requested the determination be made by consent.
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 John Clarke 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)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Exploration Licence 28/604 may be done.’
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.’
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.
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
As notice under s 29 of the Act of the Government party’s intent to grant the proposed licence was issued prior to September 1998, a question arose as to whether the transitional provisions to the 1998 Native Title Act amendments operated to ‘save’ the procedural rights of any other native title party whose claim was not currently entered on the Register of Native Title Claims. Preliminary investigations by the Tribunal indicated that, if the transitional provisions did apply, the Maduwongga People might retain the right to negotiate in relation to the proposed licence.
On 23 August 2006 the Tribunal conducted a preliminary conference at which the Central East Goldfields native title party and the Wongatha native title party were legally represented by Mr Murray Hutchings (GLSC). Mr John Strickland appeared on behalf of the Maduwongga People. Mr John Clarke from Wanati Pty Ltd appeared as the representative for Heron Resources NL. Mr Rod Wahl and Mr David Crabtree appeared for the Government party.
At this hearing Mr Hutchings confirmed the facts in his affidavits and the consent of the Wongatha native title party to a determination by consent that the proposed licence may be granted. The question was whether the Maduwongga People retained the right to negotiate in relation to those matters the subject of s 29 notices issued prior to 30 July 1998, notwithstanding the subsequent removal of the claim from the Register in September 2005, at which point they incontrovertibly lost all other right to negotiate procedural rights.
Whilst I was satisfied as to the consent of the Wongatha native title party, the status of the Maduwongga People was not resolved during the first Preliminary Conference. I therefore set directions requiring parties to provide written submissions on this issue prior to an adjourned Preliminary Conference then scheduled for 13 September 2006.
On 4 September Mr John Strickland informed the Tribunal no submissions were to be made on behalf of the Maduwongga People in relation to pre-combination applications. At the request of the government party, on 11 September 2006 Direction were amended requiring submissions to be lodged on or before the 9 October 2006. The adjourned preliminary conference was also postponed to 9 October 2006.
The Government party’s submissions were lodged on 9 October 2006, but as foreshadowed by Mr Strickland, no written submissions were lodged on behalf of the Maduwongga People. The grantee party also elected not to lodge any submissions.
At the adjourned preliminary conference on 9 October 2006, the Maduwongga People were represented by Ms Marjorie Strickland. Ms Strickland did not make any detailed submissions on the question of whether the right to negotiate was retained by the Maduwongga People but the attitude of this group to the grant of various mining titles was clarified. In summary, Ms Strickland advised that prior to removal from the Register of Native Title Claims, the Maduwongga People had not sought to enter into agreements relating to exploration or prospecting licences, preferring to concentrate on negotiating agreements in relation to mining proposals. Ms Strickland also indicated that the Maduwongga People might be willing to consent to a determination in this matter, in the terms sought by the Wongatha native title party, if they retain the right to negotiate.
Although no decision on this issue had been made by the Tribunal, on 25 October 2006 a proposed minute of consent signed by Marjorie Strickland and Albert Nudding on behalf of the Maduwongga People, was lodged with the Tribunal. This consent minute is identical in its terms to that set out in para [6] above.
Maduwongga People’s claim — history
The first native title determination application described as being made on behalf of Maduwongga was lodged on 19 April 1994 and designated WC94/3 by the Tribunal. This was followed by an application entitled Maduwongga People #2 (WC95/11) on 6 April 1995 and both claims were entered onto the Register of Native Title Claims on 8 September 1995. On 8 April 1998 a third claim was lodged, Maduwongga People #3 (WC98/20), which was entered onto the Register of Native Title Claims the same day. These claims were then combined on 17 February 1999 to form the final Maduwongga People claim (WC99/9).
On 8 June 1999, pursuant to s.190A of the Act, the Maduwongga People’s claim (WC99/9) was not accepted for registration by the Registrar of the Tribunal. An appeal against this decision lodged by the Maduwongga People was upheld by the Federal Court (Strickland & Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1530 (4 November 1999)) and accordingly the application was entered onto the Register of Native Title Claims on 5 November 1999.
On 11 August 2003, the Federal Court made orders amending the Maduwongga People’s application, in response to a request for leave to do so by the claim group. This resulted in the application of the registration test to the amended native title determination application, again pursuant to s.190A of the Act. On 12 September 2005 the amended claim was not accepted for registration and its details were removed from the Register of Native Title Claims. No application for review of this decision was made by the claimants and the claim remains unregistered.
The transitional provisions
Schedule 5 Part 2 (‘Application of future act amendments’) of the Native Title Amendment Act 1998 was enacted to create a scheme by which the future act rights accruing to native title determination applications lodged prior to those amendments could be ‘transitioned’ to those applying after September 1998. The relevant sections provide that:
Item 4 Transitional—old Act section 29 notices etc.
Old Act section 29 notices—section 28 satisfied or arbitral body application
(1)If, before the commencement of the new “right to negotiate” provisions:
(a)a notice was given in relation to a future act under section 29 of the old Act; and
(b) apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and
(c)either:
(i)the requirements of any of paragraphs 28(1)(a) to (f) of the old Act were satisfied; or
(ii) an application was made under section 35 of the old Act to an arbitral body and had not been withdrawn;
then, after the commencement of this Act, the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, in relation to the future act.
Old Act section 29 notices—old Act native title parties
(2)If:
(a) a notice under section 29 of the old Act was given in relation to a future act at least 2 months before the commencement of the new “right to negotiate” provisions; and
(b) apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and
(c) subitem (1) does not apply to the future act;
then, after the commencement of this Act, the new “right to negotiate” provisions apply in relation to the future act as if:
(d) the only persons who were native title parties were those who were native title parties under the old Act; and
(e) the requirements of section 29 of the new Act had been complied with.
….
Schedule 5 to the Amendment Act comprises one item, 11, which has a number of sub-items as follows:
‘11(1) This item sets out the consequences of the commencement of this Act in relation to a claim made in an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act if, when this Act commenced, an entry recording details of the claim was on the Register of Native Title Claims.
….
(3) If:
(a) the application was made before 27 June 1996; and
(b) a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and
(c) no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;
the Registrar must:
(d) consider the claim under section 190A of the new Act; and
(e) use his or her best endeavours to finish doing so by the end of 4 months after the notice is given.
If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.
(8) In considering a claim in accordance with subitems (3) to (7), the Registrar must:
(a) in addition to having regard to information in accordance with subsection 190A(3) of the new Act, also have regard to any information provided by the applicant after the application was made; and
(b) apply section 190A of the new Act as if the conditions in sections 190B and 190C requiring that the application;
(i) contain or be accompanied by certain information or other things; or
(ii) be certified or have other things done in relation to it;
also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and
(c) for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.
(9) If the claim does not satisfy all of the conditions in sections 190B and 190C of the new Act:
(a) the Registrar must remove the details of the claim from the Register and give written notice as required by subsection 190D(1); and
(b) the other provisions of sections 190A to 190D apply as if the notice mentioned in paragraph (a) were given under subsection 190D(1); and
(c) after the Registrar has complied with subitems (3) to (8) and this subitem (in so far as they are applicable), he or she is taken to have complied with section 190A.
(11) If:
(a) the application was made before 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;
then the new "right to negotiate" provisions (including as modified by Part 2 of this Schedule) or the old "right to negotiate" provisions, as the case requires, apply in relation to any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section, as if the details of the claim had not been removed from the Register.
(12) If:
(a) the application was made on or after 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;
then the new "right to negotiate" provisions (including as modified by Part 2 of this Schedule) or the old "right to negotiate" provisions, as the case requires, apply in relation to:
(c) any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section; and
(d) any act of which notice was given under section 29 of the new Act, or a provision of a law of a State or Territory that is equivalent to that section, before the removal of the details;
as if the details had never been entered in the Register.’
The s29 notice in relation to the proposed licence was issued pursuant to the old Act, and overlaps both the Maduwongga claim (WC94/3) and the Maduwongga #2 (WC95/11), both of which were entered on the Register prior to 27 June 1996. Part of the area is also covered by Maduwongga People #3 (WC98/20), however, that claim was not lodged or entered on the Register until 8 April 1998 and therefore falls outside the saving provision of Item 11 of the transitional provisions. As is clear from the history of the Maduwongga claim, the combined claim was originally tested by the Registrar under s 190A on 8 June 1998 and was not accepted for registration by the Registrar of the Tribunal. At that point it is clear that Sub-item 11(11) of the transitional provisions would have operated to preserve the right to negotiate in relation to any existing s 29 notices. In any event, as is indicated in paragraph 19 above, the Federal Court upheld an appeal by the Maduwongga People and the application was subsequently entered on the Register, on 5 November 1999. In consequence of that, the claim remained registered and therefore did not require the protection offered by Sub-item 11(11).
Subsequently, on 11 August 2003, the Federal Court made orders amending the Maduwongga People’s application. This application to amend was related to amendments to the substance of the application. The application was considered pursuant to s 190A and, on 12 September 2005, the amended claim was not accepted for registration. The question is whether the right to negotiate in relation to those s 29 notices, which were issued prior to the application of the registration test under the transitional provisions, i.e. prior to 30 July 1998, remain on foot notwithstanding the 2005 removal.
I have received submissions from the State Government in relation to this matter and I accept the position that they put. Essentially, their reasoning is that in relation to the two Maduwongga claims that are relevant at the moment, the transitional provisions, particularly Sub-item 11(11) would have applied in circumstance where the removal of the combined claim from the Register by the Registrar on 8 June 1999. By virtue of the decision of the Full Federal Court, and the inclusion of the details of the claim on 5 November 1999, the right to negotiate was preserved by that fact alone and did not require the assistance of Sub-item 11(11).
The submission of the State is to the effect that Sub-item 11(11) under the transitional provisions is only relevant where details of the claim are removed pursuant to Sub-item 9 or 10 of the transitional provisions. Clearly, the removal of the claim on 12 September 2005, subsequent to the further amendment of the claim, did not relate to the removal of the matter from Sub-item 9 or 10. As submitted by the State:
“20. The importance of the Registrar removing the details of the claims from the Register under Sub-item 9 is that Sub-item 9 is part of the system of transition between the old Act and the new Act, ie. part of that system which ensures that all claims registered under the old Act are systematically brought before the Registrar for consideration under the new Registration Test, imposed by the new Act. Crucially, sub-item 11(11) and its preserved right to negotiate did not apply to claims which had failed the registration test for any reason other that the transition from the old Act to the new Act.”
“21. ….[T]he reason for the Maduwongga claim being de-registered on 12 September 2005 had nothing to do with the transition from the old Act to the new Act. The claim had been amended in February 1999 for the purpose of undergoing the registration test and had been registered for four years. The amendment in 2005 took place and had nothing to do with the transitional period. The transitional provisions …. therefore simply do not apply to it. It was not de-registered under sub-item 11(11).”
Further, I agree with the State that the decision in Bullen (Bullen v State of Western Australia [1999] FCA 1490) can be distinguished from this matter. In that case, the transitional provisions were the chief reason why the registration test was applied and thus the requirements of paragraph 11(11)(b) were met. The issue in that case was whether amendments to the claim under s 64(4) rendered it essentially a different claim that could not claim the benefit of Sub-item 11(11). This decision was recently endorsed by Nicholson J in Koara People v State of Western Australia (2006) FCA 66 (9 February 2006).
Sub-item 11(9) cannot be read in isolation from the rest of item 11. In my view, it is clear that Sub-item 11(9) is referable to the application of the registration test pursuant to one or more of the sub-items in 11[3]–[5]. The 2005 application of the registration test to the Maduwongga claim arose solely under s 190A(1). In any event, it is clear to me that the Maduwongga claimants lost the right to negotiate which they did have up until 12 September 2005, once their claim was removed from the Register, after it had been assessed under s 190A of the Act and not under the transitional provisions. Consequently, all rights to negotiate were lost at that point.
Findings in relation to the Wongatha native title party
As Mr Hutchings confirmed contents of his affidavit that the Wongatha native title party consents both to the grant of the proposed licence and determination in the terms sought, I am satisfied that the consent determination is appropriate as it relates to the Wongatha native title party.
Findings in relation to the Maduwongga native title party
It is my view that the Maduwongga native title party did not have the right to negotiate in relation to these matters subsequent to 12 November 2005, and consequently is not required to consent to this determination.
Determination
By consent the determination of the Tribunal is that the act being the grant of E28/604 to Heron Resources NL may be done.
Daniel O'Dea
Member
20 December 2006
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