Central West Goldfields People/Ballardong People/ Dolerite Investments Pty Ltd and Murchison Resources Pty Ltd/Western Australia

[2003] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Central West Goldfields People/Ballardong People/ Dolerite Investments Pty Ltd and Murchison Resources Pty Ltd/Western Australia, [2003] NNTTA 43 (11 March 2003)

Application No:        WF03/5

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

Central West Goldfields People - WC99/29 (Applicant/ First Native Title Party)

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Ballardong People – WC97/56 (Second Native Title Party)

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Dolerite Investments Pty Ltd and Murchison Resources Pty Ltd (Grantee Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Dan O’Dea, Member
Place:  Perth

Date:  11 March 2003

Catchwords:    Native title - future act - application for determination for the grant of prospecting 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

Hearing Date:                  7 March 2003

Representative for the

Grantee Party:                 Mr Scott Wilson, Murchison Resources Pty Ltd

Counsel for the               

First Native Title Party:                  Ms Kathy Burns, Goldfields Land and Sea Council

Counsel for the               

Second Native Title Party:              Mr Andy Skreiner and Ms Wendy Treasure, South West Aboriginal Land and Sea Council

Representative of the     

Government party:  Mr Rod Wahl, Crown Solicitor’s Office

Ms Karen Pye, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On or before 26 January 2000, the State of Western Australia (‘the Government Party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant under the Mining Act 1978 (WA) of prospecting licences P77/3298 and P77/3299 to Dolerite Investments Pty Ltd and Murchison Resources Pty Ltd.

2. The Native Title Parties in respect of these proceedings are:  

• Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt, Victor Cooper (Central West Goldfields People - WC99/29), (‘the First Native Title Party’); and

• Alan Jones, Alec Yarran, Cedric Anderson, Doug Nelson, Reg Hayden, Reg Yarran, Ricky Nelson, Robert Riley, Robin Yarran, Saul Yarran, Tim Riley, William Riley, Dianne Taylor, Winnie McHenry (Ballardong People - WC97/56); (‘the Second Native Title Party’).

1. On 11 February 2003, being a date more than six months after the s 29 notice was given, the First Native Title Party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act in relation to prospecting licences P77/3298 and P77/3299. This application was amended on 6 March 2003. The application sought a determination by consent of all parties. The National Native Title Tribunal (‘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).

2. On 7 March 2003, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future acts may be done in terms of the minute submitted by Ms Kathy Burns, a solicitor with the Goldfields Land and Sea Council for the First Native Title Party, Ms Wendy Treasure, a solicitor with the South West Aboriginal Land & Sea Council for the Second Native Title Party, Mr Rod Wahl of the Crown Solicitor’s Office for the Government Party, and by Mr Scott Wilson, Murchison Resources Pty Ltd for the Grantee Party. Both the Goldfields Land and Sea Council and the South West Aboriginal Land & Sea Council are recognised representative Aboriginal and Torres Strait Islander bodies under the Act.

3. The said minute is signed by Ms Kathy Burns for and on behalf of the First Native Title Party, by Ms Wendy Treasure for and on behalf of the Second Native Title Party, by Dean Willis for and on behalf of Dolerite Investments Pty Ltd, by Scott Wilson for and on behalf of Murchison Resources Pty Ltd and by Jeff O’Halloran, Crown Solicitor’s Office for and on behalf of the Government Party.  The authority of each such signatory to sign the minute was confirmed by the parties’ respective representatives at the hearing.  The minute is in the following terms:

   “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 Grantee Party and the Native Title Parties have complied with the requirements of s 31(b) of the Native Title Act 1993.

   3. The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of prospecting licences 77/3298 and 77/3299 may be done.”

4. Paragraph 10 of the s 35 application (as amended 6 March 2003) says:

   a)   “The 1^st native title party, consents to the proposed act being done, that is the grant of the prospecting licences the subject of this consent determination, given that the grantee party has provided an written undertaking to the Goldfields Land and Sea Council, to undertake and complete a heritage survey or surveys prior to ground disturbing work occurring and in consultation with the Central West Goldfields People and the GLSC.

   b)   The grantee party and 1^st 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.

   c)   The 2^nd Native Title Party originally signed a State deed for grant of these prospecting licences. Subsequently this State deed was found to be incorrectly executed. Given this, the South West Land and Sea Council (formerly the Noongar Land Council) sought instructions from the 2^nd Native Title Party regarding this consent determination. These instructions are that the 2^nd Native Title Party consent to the proposed act being done, that is the grant of these prospecting licences, the subject of this consent determination.”

5. I find that the facts set out in paragraph 10 of the s 35 application are established and am satisfied that both Native Title Parties as a group respectively consent to the determination in the terms set out in the said minute. The First Native Title Party has been represented in this matter throughout by the Goldfields Land and Sea Council and Ms Burns confirmed at the hearing that the claim group as a whole consented to the determination. The Second Native Title Party has been represented in this matter throughout by the South West Aboriginal Land & Sea Council (formerly the Noongar Land Council) and Ms Treasure confirmed at the hearing that the claim group as a whole consented to the determination and noted that her instructions were evidenced by all of the applicants having signed the agreement referred to above.

Determination

The determination of the Tribunal is that the acts, being the grant of prospecting licences 77/3298 and 77/3299 to Dolerite Investments Pty Ltd and Murchison Resources Pty Ltd can be done.

Dan O’Dea
Member

11 March 2003