Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Peter Romeo Gianni

[2006] NNTTA 142

NATIONAL NATIVE TITLE TRIBUNAL

Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Peter Romeo Gianni, [2006] NNTTA 142 (24 October 2006)

Application Nos:       WF06/44 and WF06/45

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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The State of Western Australia (Government party)

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Peter Romeo Gianni (grantee party)

FUTURE ACT DETERMINATIONS

Tribunal:  Dan O’Dea

Place:  Perth
Date:  24 October 2006

Catchwords:  Native title — future acts — applications for determination for the grant of exploration 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 29, 35, 38, 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:  Not applicable

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

Representative

of the grantee parties:         Mr Mike Lewis

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. 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 exploration licences to Peter Romeo Gianni (‘the Grantee Party’) which are the subject of the future act determination applications (‘the applications’):

   (1)WF06/44

   Exploration licences E31/666 and E31/673 to Peter Romeo Gianni on 26 January 2005.  Exploration licence E31/666 is 2.98 square kilometres and is located 26 kilometres southerly of Leonora in the Shire of Menzies. Exploration licence E31673 is 17.86 square kilometres and is located 38 kilometres southerly of Leonora in the Shire of Menzies.

   (2)WF06/45

   Exploration licences E28/1433 and E31/667 to to Peter Romeo Gianni on 12 January 2005.  Exploration licence E28/1433 is 8.88 square kilometres and is located 101 kilometres southerly of Leonora in the Shire of Kalgoorlie Boulder City. Exploration licence E31/667 is 2.98 square kilometres and is located 24 kilometres southerly of Leonora in the Shire of Menzies.

2. Each of the proposed licences is 100 per cent overlapped by the registered claim of the native title party.

3. The native title party with respect to these proceedings is 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’).  Each of the proposed licences is entirely overlapped by the registered claim of the Wongatha native title party.

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. Appended to the s 35 determination applications are minutes of consent determinations signed by the representative of the Native Title party. On 6 September 2006 Mr David Crabtree of the Department of Industry and Resources provided to the Tribunal copies of minutes of consent determinations signed by the Grantee Party, and on 19 October 2006 Mr Rod Wahl of the State Solicitor’s Office provided to the Tribunal a copy of a minute of consent determination signed on behalf of the Government Party.

6. The reasons for seeking consent determinations 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 the 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

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. 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 party are different.

Findings in relation to the native title party

1. 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.

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 determinations of the Tribunal are that the acts being the grants of the exploration licences E31/666, E31/673, E28/1433 and E31/667 to Peter Romeo Gianni may be done.

Dan O’Dea
Member

24 October 2006