Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Western Metals Copper Ltd

[2007] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Aubrey Lynch and Others on behalf of the Wongatha People/Western Australia/Western Metals Copper Ltd, [2007] NNTTA 5 (16 January 2007)

Application No:         WF06/49

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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Western Metals Copper Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O'Dea, Member

Place:  Perth
Date:  16 January 2007

Catchwords:  Native title — future acts — applications for determination for the grant of exploration licences — Right to Negotiate and pre-combination claimant applications – transitional provisions — 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
  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).

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

Aubrey Lynch and Others on behalf of the Wongatha People /Western Australia/ Heron Resources NL, NNTT WF06/50 [2006] NNTTA 162 (20 December 2006), Daniel O’Dea

Trevor Brownley on behalf of the Bibila Lungkutjarra People/Western Australia/Aberfoyle Resources Ltd., NNTT WO98/907 [1999] NNTTA 281 (4 November 1999) Patricia Lane.

Murray Stubbs on behalf of the United North East People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/456 [1999] NNTTA 309 (23 November 1999) Hon EM Franklyn QC

Thomasisha Passmore on behalf of the Milangka Purungu People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/514, [1999] NNTTA 279 (3 November 1999) Hon EM Franklyn QC

Donald Ballinger on behalf of the Maduwongga People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/548 [1998] NNTTA 159 (9 July 1998) Hon CJ Sumner

Hearing dates:  23 August 2006; 9 October 2006

Representative of the          Mr Murray Hutchings, Goldfields Land and Sea Council
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, Senior Assistant State Solicitor, State Solicitor’s Office

Mr Rod Wahl, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

Background facts

1. On various dates in 1998, the Government party gave notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of various future acts being the grant of exploration licences E31/345, E31/351, E31/365 and E28/841 (“the proposed licences”) to Aberfoyle Resources Ltd. Included in each notice was a statement that the Government party 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). Details of the proposed licences are as follows:

   • E28/841:  Located 122 kilometres North Easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, encompassing an area of 8.88 square kilometres (notification date 13 May 1998).
   • E31/345:  Located 127 kilometres North Easterly of Kalgoorlie in the Shire of Menzies, encompassing an area of 97.85 square kilometres (notification date 18 March 1998).
   • E31/351:  Located 135 kilometres North Easterly of Kalgoorlie in the Shire of Menzies, encompassing an area of 95.03 square kilometres (notification date 18 March 1998).
   • E31/365:  Located 118 kilometres North Easterly of Kalgoorlie in the Shire of Menzies, encompassing an area of 44.48 square kilometres (notification date 1 April 1998).

2. On 8 October 1998 Aberfoyle Resources Ltd registered a change of company name with the Australian Security and Investments Commission to Western Metals Resources Ltd, which was reflected in the Department of Industry and Resources database on 10 December that year.  Western Metals Resources Ltd became Western Metals Copper Ltd on 18 July 2000, again via a change of company name, which was entered into the DoIR database on 7 September 2001. 

3. The native title party with respect to this proceeding 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).

4. 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.

5. As noted at para [1] above, the Government party asserted that the grant of all the proposed licences attracted the expedited procedure. The expedited procedure objection applications lodged in response, and their outcomes, are as follows:

E8/841

• Objection application designated WO98/797 – lodged on 25 June 1998 by Donald Ballinger on behalf of the Maduwongga O’Donoghue People (WC97/88).  This application was withdrawn on 27 May 1999 without agreement having been reached.
• Objection application designated WO98/907 – lodged on 2 July 1998 by Trevor Brownley on behalf of the Bibila Lungutjarra (Wajen) People (WC96/12).  On 4 November 1999 Member P.M. Lane determined that the grant was not an act attracting the expedited procedure (Trevor Brownley on behalf of the Bibila Lungkutjarra People/Western Australia/Aberfoyle Resources Ltd., NNTT WO98/907 [1999] NNTTA 281 (4 November 1999) Patricia Lane).

E31/345

• Objection application designated WO98/425 – lodged on 1 May 1998 by Donald Ballinger on behalf of the Maduwongga O’Donoghue People (WC97/88). This application was withdrawn on 27 May 1999 without agreement having been reached.
• Objection application designated WO98/456 – lodged on 12 May 1998 Murray Stubbs on behalf of United North East (WC97/35). On 23 November 1999 the Hon E M Franklyn QC, Deputy President determined that the grant was not an act attracting the expedited procedure (Murray Stubbs on behalf of the United North East People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/456 [1999] NNTTA 309 (23 November 1999) Hon EM Franklyn QC).

E31/351

• Objection application designated WO98/425 – lodged on 1 May 1998 Donald Ballinger on behalf of the Maduwongga O’Donoghue People (WC97/88). This application was withdrawn on 27 May 1999 without agreement having been reached.
• Objection application designated WO98/514 – lodged on 12 May 1998 Thomasisha Passmore on behalf of the Milangka-Purungu (Wongutha) People (WC96/42). On 3 November 1999 the Hon E M Franklyn QC, Deputy President determined that the grant was not an act attracting the expedited procedure (Thomasisha Passmore on behalf of the Milangka Purungu People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/514, [1999] NNTTA 279 (3 November 1999) Hon EM Franklyn QC).

E31/365

• Objection application designated WO98/548 – lodged 18 May 1998 by Donald Ballinger on behalf of the Maduwongga O’Donoghue People (WC97/88). On 9 July 1998 Hon CJ Sumner, Deputy President (then Member) determined by consent of the parties that the grant was not an act attracting the expedited procedure (Donald Ballinger on behalf of the Maduwongga People/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/548 [1998] NNTTA 159 (9 July 1998) Hon CJ Sumner).

1. From the dates of the Tribunal’s various determinations, the full right to negotiate applied in respect of the proposed licences. Parties subsequently sought assistance, under s 31(3) of the Act, to negotiate an agreement of the kind mentioned in s 31(1)(b). This application for mediation assistance was designated WM05/51 by the Tribunal.

2. On 13 July 2006, being dates more than six months after the s 29 notice was given the Wongatha People made an application pursuant to s 35 of the Act for a future act determination under s 38 and requested the determination be made by consent.

3. Appended to the s 35 determination application was 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. The proposed minute was subsequently 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)

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 Exploration licences 31/345, 31/351, 31/365 and 28/841 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. The contents of this affidavit were set out in the reasons for decision in Aubrey Lynch and Others on behalf of the Wongatha People /Western Australia/ Heron Resources NL, NNTT WF06/50 [2006] NNTTA 162 (20 December 2006), Daniel O’Dea (‘Heron’) at para [7] and are applicable to this matter.  In summary, the GLSC through Mr Hutchings has been authorised to seek a future act determination by consent for certain exploration and prospecting licences where, for whatever reason, not all the signatures of the applicant group can be obtained on agreements or other documents.

5. Appended to Mr Hutchings’ affidavit is a document entitled ‘Schedule A’ which contains a list of exploration and prospecting licence applications for which Mr Hutchings is authorised to lodge future act determination applications and the respective grantee parties to which they relate.  Included in the list are the proposed licences and grantee party in this matter.

6. 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

1. As the notices under s 29 of the Act of the Government party’s intent to grant the proposed licences were 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 some of the proposed licences, namely E28/841, E31/351 and E31/365. All three of these proposed licences fall within the external boundaries of the former Maduwongga claim (WC94/3), whilst E31/351 also falls within the former Maduwongga 2 (WC95/11) claim boundary.

2. On 23 August 2006 the Tribunal conducted a preliminary conference at which the Wongatha native title party was legally represented by Mr Murray Hutchings (GLSC).  Mr John Strickland appeared on behalf of the Maduwongga People (WC99/9). Mr John Clarke from Wanati Pty Ltd appeared as the representative for Western Metals Copper Ltd, whilst Mr Trevor Creewel, Mr Rod Wahl and Mr David Crabtree appeared for the Government party. 

3. 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 licences may be granted. The question was whether the Maduwongga People retained the right to negotiate in relation to those proposed licences noted in para [13] above, 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. 

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

Findings relating to the Maduwongga People

1. The law and facts relating to the Maduwongga People are detailed in Aubrey Lynch and Others on behalf of the Wongatha People /Western Australia/ Heron Resources NL, NNTT WF06/50, [2006] NNTTA 162 (20 December 2006) Daniel O’Dea. I adopt the findings from the following paragraphs of those reasons for the purposes of this determination.

   • [18]–[20] detailing the registration and combination history of the Maduwongga People’s claim(s);
   • [21]–[23] detailing the ‘transitional provisions’ and submissions from the Government party regarding their operation in relation to the Maduwongga People’s claims(s); and
   • [24]–[25] detailing my reasons for deciding that the ‘transitional provisions’ do not operate to preserve the Maduwongga People’s right to negotiate in respect of the proposed licences.

In summary, on the Maduwongga People’s combined claim being removed from the Register on 12 September 2005, it having been assessed under s 190A, all rights to negotiate were lost. Consequently, the Maduwongga People is not a native title party and its consent is not required for the purposes of this determination.

Findings in relation to the Wongatha native title party

1. As Mr Hutchings confirmed contents of his affidavit that the Wongatha native title party consents both to the grant of the proposed licences and determination in the terms sought, I am satisfied that the consent determination is appropriate as it relates to the Wongatha native title party.

Determination

1. By consent the determinations of the Tribunal are that the acts being the grants of the grant of exploration licences E31/345, E31/351, E31/365 and E28/841 to Western Metals Copper Ltd may be done.

Daniel O'Dea
Member

16 January 2007