Barrick (Australia Pacific) Limited/ Aden Eades and Others on behalf of Southern Noongar/State of Western Australia

Case •

[2010] NNTTA 69

•

18 May 2010

NATIONAL NATIVE TITLE TRIBUNAL

Barrick (Australia Pacific) Limited/ Aden Eades and Others on behalf of Southern Noongar/State of Western Australia, [2010] NNTTA 69 (18 May 2010)

Application No:        WF10/5

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Barrick (Australia Pacific) Limited (Applicant/grantee party)

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Aden Eades and Others on behalf of Southern Noongar (WC96/109) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Mr Daniel O'Dea, Member

Place:Perth

Date:18 May 2010

Catchwords:  Native title — future acts — application for determination for the grant of prospecting and exploration licences — logistical difficulties preclude execution of State Deed — native title party as a whole consent to the determination — consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 151

Mining Act1978 (WA)

Cases:Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member

Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon CJ Sumner, Deputy President

Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Eades and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President

Hearing date:  Determined on the papers

Representative for the        Mr Eamon Cornelius, Western Tenement Service

grantee party:  

Representative for the        Ms Maryse Aranda, South West Aboriginal Land and Sea

native title party:                 Council

Representatives for the       Mr Rod Wahl, State Solicitor’s Office

Government party:             Ms Faye Mitchell, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

  1. On the following dates the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of future acts, namely the grant of prospecting licences P74/228, P74/229, and exploration licence E74/245 (‘the proposed licences’) under the Mining Act1978 (WA) to Homestake Gold of Australia Ltd.

    ·P74/228 and P74/229 – 18 February 1998

    ·E74/245 – 3 December 1997

Included in these notices was a statement that the Government party considered the grants attracted the expedited procedure (that is, the acts are ones which can be done without the normal negotiations required by s 31 of the NTA).

  1. The proposed licences are located in the Shire of Ravensthorpe and the area and locations of each are as follows:

    ·P74/228 – 47.48 hectares, 5.8 kilometres east of Ravensthorpe

    ·P74/229 – 75.25 hectares, 5.8 kilometres east of Ravensthorpe

    ·E74/245 –  8.57 square kilometres, 170 kilometres north west of Esperance

  1. The native title party with respect to these proceedings is Aden Eades, Dallas Coyne, Glen Colbung, Jerry Narkle, Justin Miniter and Rita Dempster on behalf of the Southern Noongar Families (WC96/109 registered from 18 November 1996). The Southern Noongar Families claim entirely overlaps the proposed licences. The Wagyl Kaip native title claim also entirely overlaps the proposed licences however are not a party to the proceedings on the basis that the group is not entitled to procedural rights accorded under Part 2 Division 3 subdivision 3 of the Act.

  2. On 18 February 2002 Homestake Gold of Australia Ltd registered a change of name to Barrick Gold of Australia Ltd with the Department of Mines and Petroleum.  On 20 January 2010 Barrick Gold of Australia Ltd registered a change of name to Barrick (Australia Pacific) Limited with the Department of Mines and Petroleum.  Accordingly, Barrick (Australia Pacific) Limited is now the grantee party.

  3. Rita Dempster, on behalf of the Southern Noongar People, lodged objections to the expedited procedure statement on 3 February 1998 in relation to E74/245 (designated WO98/73) and on 20 May 1998 in relation to P74/228 and P74/229 (designated WO98/290).  In all instances the Tribunal determined by consent that the expedited procedure should not apply and the proposed licences became subject to the right to negotiate.

  4. On 23 April 2010, being a date more than six months after the s 29 notices were given, the native title party made application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed licences ('the application') and requested that the future act determination be made by consent.

  5. Paragraph 10 of the application contains a statement that the parties have not been able to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed licences. Relevantly, paragraph 10(1) of the application state:

    ‘1.The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31 (1) (b) of the Native Title Act 1993 (Cth) in respect of the future act.’

  6. Paragraph 10(2) of the application states that pursuant to the terms of a Deed of Assignment and Assumption all rights and interests in the proposed licences will be transferred from the grantee party to Tectonic Resources NL (‘beneficial holder’).  A copy of this Deed of Assignment and Assumption, dated 17 July 2009, was appended to the application.  It is not possible for the proposed licences to be transferred to the beneficial holder until grant. In the circumstances I am satisfied that the proposed licences will be transferred to the beneficial holder upon grant and that the beneficial holder has authority on behalf of the grantee party for the purposes of the determination.

  7. A minute of a consent determination in the following terms has been provided.  This minute was executed in counterpart by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party, Mr Johannes Norregaard, Tectonic Resources NL, on behalf of the grantee party and by Ms Maryse Aranda, Principal Legal Officer of the South West Aboriginal Land and Sea Council (‘SWALSC’) on behalf of the native title 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 Licence 74/245 and Prospecting Licences 74/228, 74/229 may be done.’

  1. 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 parties) are legally represented and those representatives have advised the Tribunal of the consent. SWALSC is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. 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 [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon C J Sumner, Deputy President).

The Inquiry Findings

  1. All parties have agreed that the determination could be made on the papers, amongst which included an affidavit from the representative of the native title party attesting to its authority to bring a consent determination application on its behalf with respect to the proposed licences.  I am satisfied that I can adequately determine the matter in this manner (s 151(2)).

  2. The affidavit of Ms Aranda, Principal Legal Officer of SWALSC, filed with the Tribunal on 12 May 2010 attests that instructions were obtained from the native title party by the passage of a resolution at the Working Group Meeting held on 3 March 2010. The affidavit of Ms Aranda confirms that the native title party resolved to support a section 35 application for a determination that the proposed licences may be granted. A copy of the native title party’s resolution is attached as ‘Exhibit A’ to Ms Aranda’s affidavit and was made in the following terms:

    ‘Resolution of the Wagyl Kaip/Southern Noongar Working Party

    3 March 2010

    Barrick Gold Australia

    The Wagyl Kaip and Southern Noongar Working party herby resolve that, for the purpose of consent for grant of Exploration License E74/245, P74/228 and P74/229 in favour of Tectonic Pty Ltd (the ‘Grantee Party’), the Grantee Party must enter into a Standard Heritage Protection Agreement for the South West Aboriginal Land and Sea Council (‘SWALSC’) region with the Wagyl Kaip and Southern Noongar Claim Group and SWALSC.

    Subject to the Grantee Party having entered into a SWALSC Standard Heritage Protection Agreement, the Wagyl Kaip and Southern Noongar Working Party Resolve and instruct all Wagyl Kaip and Southern Noongar named applicants to execute the State Deeds and all other documents necessary to facilitate the grant of Exploration License E74/245, P74/228 and P74/229 in favour of the Grantee Party and, in the event that one or more Wagyl Kaip and Southern Noongar Named Applicants fail or refuse to execute the State Deeds or other documents, the Wagyl Kaip and Southern Noongar Working Party supports any Section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that Exploration License E74/245, P74/228 and P74/229 be granted, subject to the provisions of the Standard Heritage Protection Agreement entered into by the Grantee Party, Wagyl Kaip and Southern Noongar Claim Group and SWALSC.’

  3. The Tribunal accepts that logistical difficulty in obtaining the signatures of all members of an applicant group is a legitimate basis for seeking a consent determination  (see Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf of Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, NNTT WF08/1, [2008] NNTTA 9 (25 January 2008) Hon C J Sumner, Deputy President; Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea, Member) and I adopt the findings in those matters for the purpose of these proceedings. The Tribunal is entitled to accept the evidence of SWALSC’s legal representative on the consent given by the native title party and there is nothing before me to suggest the contrary.

Determination

  1. By consent the determination of the Tribunal is that the act, namely the grant of prospecting licences P74/228 and P74/229, and exploration licence E74/245 to Barrick (Australia Pacific) Limited, may be done.

Daniel O'Dea
Member
18 May 2010

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