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...

[2002] NNTTA 118

NATIONAL NATIVE TITLE TRIBUNAL

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)/Dalrymple Resources NL/Western Australia, [2002] NNTTA 118 (27 June 2002)

Application No:        WF02/10

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, 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) (Native Title Party)

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Dalrymple Resources NL (Grantee Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth

Date:  27 June 2002

Catchwords:    Native title - future act - application for determination for the grant of exploration licences - consent determination that the acts may be done.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Date:                 27 June 2002

Counsel for the

native title party:            Ms Kathy Burns, Goldfields Land and Sea Council

Representative of the

grantee party:                 Mr Terry McMahon, WA Mining Titles

Counsel for the

Government party:         Mr Mark DiRenzo, Crown Solicitor’s Office

Representative of the     

Government party:         Mr David Crabtree, Department of Mineral and Petroleum Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 29 April 1998 and 14 July 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 exploration licences E31/336 and E37/580 respectively (‘the exploration licences’), under the Mining Act 1978 (WA) to Dalrymple Resources NL.

2. The native title party  in respect of 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)

1. On 6 June 2002, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the above exploration licences. An amended application was filed on 18 June 2002.

2. In the application the native title party consented to the Tribunal making a determination that the act may be done.  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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

3. On 27 June 2002, the Tribunal conducted a hearing. The exploration licences form part of a Pilot Project Agreement (‘the Agreement’) between several miners and explorers (including the grantee party) and the North East Independent Body Aboriginal Corporation (‘NEIB’) on behalf of the Wongatha People. The NEIB is an umbrella body which acts for the Wongatha claimants in relation to their claim and other matters. Dalrymple Resources NL and Mr Aubrey Lynch, Chairman of the NEIB executed the Agreement last year. The Agreement allows for large-scale heritage surveys over some of the native title party’s claim area as part of an initiative co-ordinated by the Department of Mineral and Petroleum Resources to reduce the backlog of tenement applications within the claim area. Under the terms of the Agreement, the native title party consented to withdraw any expedited procedure objections against the tenements covered by the Agreement seven days after the grantee party had signed it. The exploration licences currently before me are subject to the normal negotiations required by s 31(1)(b) of the right to negotiate provisions of the Act, the Tribunal having previously determined that the expedited procedure was not attracted (WO98/713 and WO98/768 for E31/336 and WO99/461 for E37/580). Accordingly, State Deeds (agreements of the kind mentioned in s 31(1)(b) of the Act) were to be executed by all parties to facilitate the granting of the exploration licences.

4. As agreement has been reached the grants of the exploration licences would normally be made following the execution of a State Deed. However, given the difficulties previously experienced by the Goldfields Land and Sea Council (‘the GLSC’) in obtaining signatures and its limited resources due to the Wongatha People’s claim for determination of native title currently being heard before the Federal Court, the NEIB authorised the GLSC to assist in expediting the grant of the exploration licences by seeking a future act consent determination. The GLSC is the designated representative Aboriginal/Torres Strait Islander body under the Act for the area of the Wongatha claim.

5. The representatives of all parties have signed a document in the following terms:

   ‘The Native Title Party, the Government Party and the Grantee Party consent to a determination under s 38 of the Native Title Act 1993 (CTH):

   1.The Government Party has complied with the requirements of s. 31(1)(a) of the NTA.

   2.The Wongatha People (Native Title Party), the Government Party and the relevant Grantee Party (“the said parties’) have complied with the requirements of s. 31(b) of the NTA.

   3.The said parties consent to a determination under s. 38 of the Native Title Act that the “act” being the grant of exploration licences; E31/336 & E37/580 to Dalrymple Resources NL may be done.’

6. At the hearing all parties through their representatives, Ms Kathy Burns, counsel for the native title party, Mr Terry McMahon for Dalrymple Resources NL and Mr Mark DiRenzo (Crown Solicitor’s Office) counsel for the Government party, confirmed their consent to the determination requested. I am satisfied that the native title party as a group consents to the determination being sought and that it is appropriate in this case to resolve this matter by consent determination rather than by the execution of a State Deed. I also note that heritage surveys of the exploration licences have been undertaken pursuant to the Agreement thus ensuring that there is unlikely to be any interference with sites of significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E31/336 and E37/580 to Dalrymple Resources NL, may be done.

Hon C J Sumner
Deputy President

27 June 2002