Barrick Gold of Australia Ltd; Croesus Mining NL; Kalgoorlie Lake View Pty Ltd/Brian Champion and Others on behalf of the Gubrun People/State of Western Australia

[2009] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Barrick Gold of Australia Ltd; Croesus Mining NL; Kalgoorlie Lake View Pty Ltd/Brian Champion and Others on behalf of the Gubrun People/State of Western Australia, [2009] NNTTA 60 (22 June 2009)

Application No:        WF09/13

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Barrick Gold of Australia Ltd
Croesus Mining NL
Kalgoorlie Lake View Pty Ltd (Applicant/grantee party)

- and -

Brian Champion and Others on behalf of the Gubrun People (WC95/27) (native title party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O'Dea, Member

Place:  Perth
Date:  22 June 2009

Catchwords:  Native title — future act — application for determination for the grant of prospecting licences — state deed signed by named applicants — grantee party consents to the determination — consent determination that the act may be done.

Legislation:          Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 39
  Mining Act1978 (WA)

Cases:Bradley Foster & Ors (Waanyi Peoples QC99/23)/Copper Strike Ltd/Queensland [2006] NNTT QF06/1 and QF06/2 [2006] NNTTA 61 [2006] (19 May 2006); Foster v Copper Strike Ltd (2006) 200 FLR 182, John Sosso, 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 C J Sumner, Deputy President

Hearing date:  11 June 2009

Representative of the          
grantee party:  Mr Brett Anderson, Andersons Tenement Management

Representative for the        
native title party:                 Mr Dennis Sambo

Representatives of 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 24 September 1997, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P26/2823 to Homestake Gold of Australia Ltd, Croesus Mining NL and Kalgoorlie Lake View Pty Ltd (KLV) (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.

2. On 20 November 1997, an expedited procedure objection application was made to the Tribunal on behalf of Karonie People No. 4 in relation to P26/2823 (designated WO97/486). This objection was determined by consent on 30 January 1998 – expedited procedure does not apply, thereby according overlapping registered native title claimants and determined native title holders the procedural right to negotiate in accordance with Part 2, Division 3 subdivision P of the Act.

3. On 18 March 2008, the Government party gave notice under s 29 of the Act of its intention to grant prospecting licence P26/2888 to the grantee party and included in the notice a statement that it considered the grant attracted the expedited procedure.

4. On 23 April 1998, an expedited procedure objection application was made to the Tribunal on behalf of Kalaako Native Title Claimants in relation to P26/2888 (designated WO98/348). On 12 May 1998 Nullabor #2 Native Title Claimants also made an expedited procedure application to the Tribunal in relation to P26/2888 (designated WO98/467). Both objections were determined by consent on 27 July 1998 – expedited procedure does not apply thereby also according the right to negotiate to overlapping native title claimants or holders.

5. On 7 May 2002 all shares in P26/2823 and P26/2888 previously in the name of Homestake Gold of Australia Ltd were registered as transferred to Barrick Gold of Australia Ltd.

6. Prospecting licence P26/2823 comprises an area of 82.88 hectares and is located four kilometres south-westerly of Boulder in the City of Kalgoorlie-Boulder. Prospecting licence P26/2888 comprises an area of 167.15 hectares and is located 19 kilometres south-easterly of Kalgoorlie in the City of Kalgoorlie-Boulder.  Henceforth the two prospecting licenses will be referred to as the proposed licenses. 

7. Both proposed licenses are overlapped 100 per cent by the claim of the Gubrun People (WC95/27 – registered from 8 September 1995 to 26 July 1999). The Gubrun people retain the right to negotiate in respect of each of the proposed licenses through the operation of item 11(11) of Schedule 5 of the Act, generally know as the transitional provisions. Item 11(11) preserves the right to negotiate for old Act claimant applications made before 27 June 1996 irrespective of the registration test outcome provided that a s29 notice was given under the old Act (ie. prior to 30 September 1998).

8. On 10 April 2007 the Government party sought mediation assistance under s 31(3) of the Act in relation to the proposed licenses and I was appointed as the member to provide the assistance for that matter. Mediation was finalised on 10 June 2009 on the basis that an agreement had been reached.

9. On 27 May 2009, being a date more than six months after the s 29 notice was given, the grantee party made an 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'). The parties have consented to my dealing with the application.

10. At paragraph 10 of the application, it is stated that the grantee party believes a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed licences would not be appropriate in the circumstances. This statement is reiterated in the affidavit of Mr Patrick Nicolas Burke, Director of Croesus Mining NL, sworn on 10 June 2009 and filed with the Tribunal on 11 June 2009. Relevantly, the affidavit states:

    ‘...

    2.At the time the Tenement applications were lodged, KLV, Barrick and Croesus were the participants in the Kalgoorlie South Joint Venture. Kalgoorlie Consolidated Gold Mines Pty Ltd (KCGM), a joint venture management company owned 50% by Barrick and 50% by KLV, has been negotiating an Aboriginal heritage agreement (based on the Goldfields Land and Sea Council Agreement) between KCGM (on behalf of the Kalgoorlie South Joint Venture) and the Gubrun People (AHA)

    3.The parties have now agreed on the terms of the AHA and the agreement has been signed by all parties. We understand that once an agreement has been reached, the State, the Gubrun people, the Minister for Mines and Petroleum and the tenement applicants (Croesus, KLV and Barrick) would usually execute a State Deed in respect of the grant of the Tenements. We submit that a State Deed would not be appropriate in this case for the reason set out below.

    4.On 2 April 2008, Croesus entered into an agreement with KCGM which had the effect of terminating the Kalgoorlie South Joint Venture and pursuant to which Croesus agreed to transfer its interests in the Tenements to KLV and Barrick (Agreement). The Agreement has now been completed and KCGM has received stamped transfers of the Tenements in favour of KLV and Barrick which, on registration of the transfers will mean that KLV and Barrick will each hold 48/96 share in each Tenement.

    5.However, applications for tenements cannot be transferred and accordingly, the transfers cannot be lodged at the Department of Mines and Petroleum (DMP) until the Tenements have been granted. The effect of this is that Croesus will remain on DMP’s register as an applicant for the Tenements until they have been granted and the transfers lodged with DMP.

    6.Given Croesus no longer has a beneficial interest in the Tenements, it is not appropriate for it to sign a State Deed for the grant of the Tenements. Accordingly, we request that the Native Title Tribunal make a consent determination in respect of the grant of the Tenements.’

11. Appended to the application was a minute of a consent determination in the following terms, executed by Mr Russell Leigh Cole for and on behalf of Kalgoorlie Consolidated Gold Mines Pty Ltd.  The minute was subsequently executed by Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party and by Mr Brian Champion 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 Prospecting Licences 26/2823 and 26/2888 may be done.’

4. 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 [2001] NNTTA 50; (22 June 2001) 164 FLR 361; The Hon C J Sumner, Deputy President).

5. The Tribunal is able to deal with partial agreements pursuant to s 39(4) of the Act and this provision has been applied to situations where the parties have reached an in principal agreement but cannot formalise the agreement by means of executed contract (Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland [2006] NNTTA 61 (19 May 2006) Foster v Copper Strike Ltd (2006) 200 FLR 182; John Sosso, Member). In this case the consent of the native title party is evident in the execution of the State Deed, being an agreement of the type contemplated in s 31(1)(b) of the Act. Counterpart copies of the State Deed have been provided to the Tribunal.

The inquiry

1. On 11 June 2009, the Tribunal conducted a hearing at which all parties were represented.  Mr Dennis Sambo represented the native title party, Mr Brett Anderson represented the grantee party, and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party.

2. At the hearing the native title party, grantee party and Government party each confirmed their consent to the determination in the terms sought on the basis that Croesus Mining NL did not consider it appropriate to execute a State Deed as it no longer had any beneficial holdings in the proposed licences.

Findings on the grantee party’s consent to a determination

1. The Tribunal accepts Croesus Mining NL’s preference not to execute the State Deed and considers the circumstances a legitimate basis for seeking a consent determination. The application was brought by the grantee party apparently with a view to enabling the grant of the proposed licences.  The circumstances do not materially affect the question of whether the parties can properly consent.

2. In this matter I am satisfied that based on the evidence provided to the Tribunal, the grantee party has agreed to the grant of the proposed licences and consents to a determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of prospecting licences P26/2823 and P26/2888 to Barrick Gold of Australia, Croesus Mining NL and Kalgoorlie Lake View Pty Ltd, may be done.

Daniel O'Dea
Member
22 June 2009