Central West Goldfields People/Swancove Enterprises Pty Ltd/Western Australia
[2006] NNTTA 66
•2 June 2006
NATIONAL NATIVE TITLE TRIBUNAL
Central West Goldfields People/Swancove Enterprises Pty Ltd/Western Australia, [2006] NNTTA 66 (2 June 2006)
Application No: WF06/20
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) (Native title party)
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Swancove Enterprises Pty Ltd (Applicant/Grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 2 June 2006
Catchwords: Native title – future act – application for determination for the grant of exploration licence – partially executed ancillary agreement and State Deed – native title party as a whole consent to the determination – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 35, 38, 109
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375
Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew/Linda Champion and Others on behalf of the Central West Goldfields People/Western Australia, NNTT WF06/2, [2006] NNTTA 2 (25 January 2006), Hon C J Sumner
Hearing date: 26 May 2006
Representative of the Ms Elizabeth Sambo
native title party:
Representative of the Ms Kate Moran,
grantee party: Hetherington Exploration and Mining Title Services P/L
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry & Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 12 January 2005 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 exploration licence E15/851 (‘the proposed licence’) under the Mining Act 1978 (WA) to Swancove Enterprises Pty Ltd (‘the grantee party’). The proposed licence comprises an area of some 204.6 square kilometres, and is located 116 kilometres south easterly of Koolyanbobbing in the Shire of Coolgardie.
The native title party with respect to these proceedings is Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper on behalf of the Central West Goldfields People (Claim No. WC99/29), and the registered claim entirely overlaps the proposed licence.
On 12 May 2006, being a date more than six months after the s 29 notice was given, the grantee party, Swancove Enterprises Pty Ltd, made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence. The grantee party requested that the future act determination be made by consent.
The s 35 application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’ for the proposed licence, executed by Mr David Zohar on behalf of the grantee party and subsequently by Mr Trevor Creewel on behalf of the Government party and Ms Elizabeth Sambo 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 15/851 may be done.’
The Tribunal has the 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. However, the absence of legal representation does not preclude a consent determination being made provided the Tribunal is satisfied that the native title party has properly consented. The Tribunal 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).
Paragraph 10 of the s 35 application states the following in describing why a consent determination is being sought:
‘An agreement and State Deed has been executed by five of the eight applicants on the Central West Goldfields Claim, but Victor Cooper and Sue Wyatt have refused to execute the State Deed and Agreement (reasons unclear).
Dorothy Dimer has lodged with the Federal Court on the 14/05/2003 an application to exclude herself as an applicant on the Central West Goldfields Claim. In doing so has refused to execute the State Deed and Agreement. The executed State Deed is held by the Department of Industry and Resources.’
Because the ancillary agreement and State Deed have not been signed by all members of the native title party, this matter cannot be concluded by way of a s 31 agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
The inquiry
On 26 May 2006 the Tribunal conducted a hearing. Ms Kate Moran represented the grantee party and Mr Rod Wahl and Mr David Crabtree appeared for the Government party. At the hearing these persons confirmed their consent to the future act determination in the terms sought. Ms Elizabeth Sambo, who represents the native title party, was unable to attend the hearing but was contacted by the Tribunal after it and, after being informed of the outcome of the hearing, confirmed her consent.
A split between persons named as part of the native title party has been apparent in several previous matters before the Tribunal (see most recently Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew/Linda Champion and Others on behalf of the Central West Goldfields People/Western Australia, NNTT WF06/2, [2006] NNTTA 2 (25 January 2006), Hon C J Sumner and cases cited therein at [11]). In each of these matters the Tribunal made a determination that the future act may be done despite the fact that the named applicants comprising the native title party did not unanimously consent or at least did not sign a State Deed or Ancillary Agreement. The Tribunal pointed out that a native title party was all the named applicants (or more accurately all the persons named as part of the applicant) acting jointly and not each individual named applicant. This view has also been confirmed in Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375. An individual person named as part of an applicant for native title is not a party in these proceedings and is not normally entitled to be separately represented.
My finding on the basis of the evidence referred to above and evidence from previous inquiries involving the native title party is that the native title party as a whole consents to the determination. Five of the eight persons named as the applicant have signed the ancillary agreement and the State Deed thereby confirming that they consider the agreement has the support of the claimant group. Further, Ms Sambo has signed the minute of consent on behalf of the native title party. For the reasons explained in the cases cited above Mr Cooper and Ms Wyatt are not a native title party and have no standing on their own to oppose the determination. It is also not clear on the evidence whether they actually oppose the grants. In any event I am satisfied that the native title party collectively consent to the grant and would have been so satisfied (as I was in WF06/2) even if Mr Cooper and Ms Wyatt had opposed it.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E15/851 to Swancove Enterprises Pty Ltd, may be done.
Hon C J Sumner
Deputy President
2 June 2006
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