Aubrey Lynch & Others on behalf of the Wongatha People/Western Australia/Spinifex Gold Ltd
[2006] NNTTA 154
•1 December 2006
NATIONAL NATIVE TITLE TRIBUNAL
Aubrey Lynch & Others on behalf of the Wongatha People/Western Australia/Spinifex Gold Ltd, [2006] NNTTA 154 (1 December 2006)
Application No: WF06/80
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 & Others on behalf of the Wongatha People (WC99/1) (applicant/native title party)
- and -
The State of Western Australia (Government party)
- and -
Spinifex Gold Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 1 December 2006
Catchwords: Native title – future act – application for determination for the grant of mining lease – named applicants not signed State Deed – logistical difficulties in signing State Deed – Ancillary Agreement made – native title party as a whole consents to the determination – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), 35, 38, 109(1), 109(3), 203B(4), 203BB(1)(b), 203BC(1)(a), 203BC(1)(b), 203BC(2)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner
Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375
Hearing date: 29 November 2006
Counsel for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representative of the
grantee party: Mr Danny Sievewright
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 31 January 1996, 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 mining lease 38/460 (‘the proposed lease’) under the Mining Act 1978 (WA) to Spinifex Gold Ltd (‘the grantee party’).
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 – registered from 10 February 2000 (‘the native title party’). The right to negotiate secured by earlier related and now combined applications was retained.
The area of the proposed lease is now to be 318.67 hectares and is located 22.5 kilometres south east of Laverton. The s 29 notice specified the area of the proposed lease to be 315.73 hectares but this minor change in area is of no consequence. The proposed lease area is entirely overlapped by the Wongatha native title claim. Each of the pre-combination applications also entirely overlaps the mining lease.
On 31 October 2006, being a date 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 in relation to the proposed mining lease. Paragraph 12 of the application asserts that the native title party does not intend to submit any evidence as the grantee party and native title party have reached agreement about the doing of the act.
Appended to the application is a minute of a consent determination in the following terms, executed by Mr Murray Hutchings, solicitor, on behalf of the native title party, and since executed by Mr Danny Sievewright on behalf of the grantee party and Mr Rod Wahl 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 Mining Lease 38/460 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:
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 not 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. The resolution passed on the 31 May 2006 by the majority of Wongatha Applicants only applied to applications for exploration and prospecting licences. For each application for a mining licence I am required to convene a meeting of the Wongatha Applicants and obtain their consent by majority to bring any Consent Applications for mining licence applications.
14. On Thursday 19 October 2006 I attended a meeting at the offices of the NEIB in Kalgoorlie. Seven of the twelve Wongatha Applicants were present at that meeting. All seven Applicants that were present signed a written authority directing me to bring Consent Applications for a number of mining licence applications. One of the mining lease applications was for a company named Diversity Resources, Mining Licence Application on tenement M38/460 (“the Tenement”).
15. Although this Consent Determination Application relates to an application by Spinifex Gold Ltd to become the holder of the Tenement I am advised and verily believe that the beneficial owner of the Tenement is Diversity Resources Pty Ltd. The ancillary agreement that has been signed by the parties is in the name of the Wongatha Claim Group (by its Applicants) and the beneficial holder of the Tenement, Diversity Resources Pty Ltd.
16. Annexed hereto and marked “A” is a copy of the written authority which has been signed by all Applicants who were present at the meeting.
17. I believe that following the meeting, of the Wongatha Native Title Applicants held on 19 October 2006 and after the signing of the written authority I have the necessary authority to bring Consent Application Determinations for the Wongatha Applicants following their successful negotiations with Diversity Resources.’
Attachment A of Mr Hutchings’ affidavit is entitled “Authority” and has been signed by seven named applicants for the Wongatha native title claim, namely Aubrey Lynch, Cyril Barnes, Elvis Stokes, Leo Thomas, Murray Stubbs, Thelma O’Loughlin and Thomasisha Passmore. The applicants assert the following:
‘We the undersigned as registered Applicants in the Wongatha People Native Title claim, authorise and direct Murray Hutchings, solicitor employed by the Goldfields Land and Sea Council to bring a Consent Applications in the National Native Title Tribunal with respect to the granting of the following Mining Lease:
…
2. Diversity Resources – M38/460
…
This consent only applies to the granting of the above Mining Licence application and cannot be construed to the giving of my consent for any future mining licences (M’s) save and except for future applications for exploration (E’s) or prospecting (P’s) licence applications.’
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 normally 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
On 29 November 2006, the Tribunal conducted a hearing, at which the native title party was legally represented by Mr Murray Hutchings. Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party and Mr Danny Sievewright for the grantee party. Mr Hutchings, Mr Wahl and Mr Sievewright confirmed their consent to the determination in the terms sought. Mr Hutchings supplemented the evidence in his affidavit by informing the Tribunal that although some applicants have not signed the State Deed, all named applicants for the Wongatha native title claim have signed the ancillary agreement between the grantee and the native title party. He also advised that there were logistical difficulties in obtaining all the signatures in that one of the named applicants lived in Perth and others were scattered throughout the Goldfields region.
With respect to paragraph 14 of his affidavit, Mr Hutchings advised that all named applicants had been given notice of the meeting and that he was satisfied that the process of decision making that occurred was in accordance with the agreed process of the native title party. Mr Hutchings further advised that he and the Goldfields Land and Sea Council (‘GLSC’) have been properly instructed by the native title party to consent to the determination.
I accept, based on the information provided in the affidavit of Mr Hutchings that the NEIB has been set up by the native title party to deal with its business (which includes future acts). I also accept that the signed written authority provided by seven of the twelve named applicants is evidence of the native title party’s consent to the determination. Further, the named applicants (or more accurately named persons jointly comprising the applicant) have the authority of the claimant group to make decisions in accordance with the Act. As the recognised representative body under the Act, GLSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). The Tribunal is entitled to accept as evidence the advice of GLSC’s representative on whether the appropriate consent has been given by the native title party.
The Tribunal has previously decided that it is appropriate to make a determination by consent in the event that a named applicant (or more accurately a person jointly comprising the applicant) refuses to sign or has not signed a State Deed (i.e. a s 31(1)(b) agreement) (see for example Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner). The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20] and Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375, Hon C J Sumner at [13]-[28]). The Tribunal has also accepted that logistical difficulties are a valid reason for a State Deed not being signed by all the named applicants and thus making a consent determination appropriate provided the Tribunal is otherwise satisfied that a native title party has consented to a determination. I am satisfied that, despite the fact that some named applicants have not signed the State Deed, the native title party collectively consents to the determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of mining lease 38/460 to Spinifex Gold Ltd may be done.
Hon C J Sumner
Deputy President
1 December 2006
0
3
0