Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O'Loughlin, Tomashisha Passmore (Wongatha People WC99/1)...

[2001] NNTTA 70

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, Tomashisha Passmore (Wongatha People WC99/1) (Applicant/native title party)/Western Australia/Trevor John Dixon, [2001] NNTTA 70 (25 July 2001)

Application No:        WF01/5

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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, Tomashisha Passmore (Wongatha People WC99/1)  (Applicant/native title party)

- and -

The State of Western Australia  (Government party)

- and -

Trevor John Dixon  (grantee party)

FUTURE ACT DETERMINATION

Tribunal:         The Hon C J Sumner
Place:               Perth

Date:                25 July 2001

Catchwords:    Native title - future acts - application for determination for the grant of prospecting and exploration licences - consent determination that the act 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

REASONS FOR FUTURE ACT DETERMINATION

1. The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of prospecting licence P39/3753 (notice given on 23 April 1997) and exploration licence E39/676 and prospecting licences P39/3808, P39/3810 and P39/3812 (notice given on 29 April 1998) under the Mining Act 1978 (WA) to Trevor John Dixon (‘the grantee party’).

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, Tomashisha Passmore (Claim No WC99/1) on behalf of the Wongatha People in relation to all five grants.

1. On 2 July 2001, 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.

2. In the application the applicant, through their solicitor Ms Kathy Burns of the Goldfields Land Council (the relevant representative Aboriginal/Torres Strait Islander body), requested the Tribunal to make a determination with the consent of all parties.  The other parties through their representatives, Mr Bill O’Donnell of the Amalgamated Prospectors and Leaseholders Association of Western Australia for the grantee party and Ms Rhonda Howlett of the Crown Solicitors Office for the Government party, have consented to the determination in the terms sought.

3. 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).

4. On 25 July 2001 the Tribunal conducted a hearing.  The reasons for a consent determination being sought were;

• The native title party consents to the proposed acts being done, that is the grant of the exploration and prospecting licences, given that the grantee party has already undertaken and completed a heritage survey prior to ground disturbing work occurring and in consultation with the Goldfields Land Council.

• The grantee party and native title party confirm that an agreement has been reached regarding the protection of Aboriginal heritage and that the titles can therefore be granted in pursuance to the consent determination.

• There was considerable difficulty obtaining signatures to an agreement of the kind mentioned in s 31(1)(b) of the Act (a State Deed) due to the limited resources of the native title party representative and the diverse location in which the 12 registered native title party applicants reside.

• When the State Deeds were executed, subject to the ancillary agreements, they were invalidly witnessed by one or more of the Wongatha people.  The Department of Mineral and Petroleum Resources did not consider a statutory declaration by the GLC declaring the veracity of the signatures was sufficient to grant the tenements.

1. The native title party is legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grants of prospecting licences P39/3753, P39/3808, P39/3810, P39/3812 and exploration licence E39/676 to Trevor John Dixon may be done.

Hon C J Sumner
Deputy President
25 July 2001