Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Heron Resources Ltd
[2008] NNTTA 52
•17 April 2008
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Heron Resources Ltd, [2008] NNTTA 52 (17 April 2008)
Application No: WF08/9
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Cyril Barnes and Others on behalf of Central East Goldfields People (WC99/30)(Applicant/native title party)
- and -
The State of Western Australia (Government party)
- and -
Heron Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 17 April 2008
Catchwords: Native title – future act – application for determination for the grant of prospecting licences – named applicants not signed state deed – logistical difficulties – regional standard heritage agreement executed by grantee party – native title party consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 109
Cases:Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL, NNTT WF06/16 [2006], NNTTA 55 (17 May 2006), The Hon CJ Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 1 April 2008
Solicitor for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
Representative of the
grantee party: Ms Tracy Browning, Heron Resources Ltd
REASONS FOR FUTURE ACT DETERMINATION
On 20 June 2007 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of prospecting licences P27/1711, P27/1712, P27/1746, P27/1747, P27/1748 and P27/1749 (‘the proposed licences’) under the Mining Act 1978 (WA) to Heron Resources Ltd (‘the grantee party’).
The proposed licences are located in the City of Kalgoorlie-Boulder and the size and locations are as follows:-
P27/1711 – 28.76 hectares, 48 kilometres north easterly of Kalgoorlie
P27/1712 – 164 hectares, 52 kilometres north easterly of Kalgoorlie
P27/1746 – 199.22 hectares, 49 kilometres north easterly of Kalgoorlie
P27/1747 – 145.34 hectares, 50 kilometres north easterly of Kalgoorlie
P27/1748 – 161.08 hectares, 45 kilometres north easterly of Kalgoorlie
P27/1749 – 196.55 hectares, 47 kilometres north easterly of Kalgoorlie
The proposed licences are 100 per cent overlapped by the Central East Goldfields People’s native title claim (WC99/30, registered from 4 October 2000) and the Maduwongga People’s native title claim (WC99/9, not accepted for registration on 12 September 2005). Following the recent technical amendments to the Act, the Maduwongga People’s native title claim has been again subjected to the registration test. At the time of this determination the delegate’s decision has not been issued.
Therefore the native title party with respect to these proceedings is Cyril Barnes and Others on behalf of Central East Goldfields People (WC99/30, registered from 4 October 1999)
On 29 February 2008, being a date more than six months after the s 29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) on behalf of the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). The applicant sought a consent determination on the basis that an ancillary agreement had been reached between the grantee party and the native title party but that an agreement of the kind contemplated in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deed) had not been executed by the persons comprising the native title applicant.
Appended to the application is minute of a consent determination in the following terms executed by Mr Murray Hutchings as representative of the native title party, and subsequently by Ms Tracy Browning as representative of the grantee party and Mr Trevor Creewel of State Solicitor’s Office for the Government 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 P27/1711-1712, 27/1746-1749 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. GLSC is the recognised representative body under the Act for the native title party. 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).
The Inquiry
The basis on which GLSC believes it is authorised to bring a consent determination application on behalf of the native title party is set out in the affidavit of Murray William Hutchings, forwarded to the Tribunal on 31 March 2008 and later sworn on 3 April 2008. The affidavit refers to the proposed licences (amongst others the subject of other future act determination applications) and is 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….
5. Annexed hereto and marked “A” is copy of an affidavit dated 10 May 2006 (“the previous affidavit”).
6. The previous affidavit details the difficulties encountered in obtaining the signatures of all Central East [Goldfields People] Applicants to sign the State Deeds and the procedure that I followed to obtain the consent of the majority of the Applicants to proceed to Consent Determinations.
7. I continue to liaise with the Applicant who refuses to sign State Deeds in an effort to further explain the process to her and encourage her to sign documents, when necessary.
8. Paragraph 18 of the previous affidavit details a resolution that was passed, at a working party meeting of the Central East People held on 28 March 2006, which directs the Goldfields Land and Sea Council to bring form 5 Consent Determinations for applications for exploration and prospecting licence applications only. The issue of the signing of State Deeds following the successful negotiation of a ancillary agreement for a mining licence remains unresolved.
9. Following the outcomes achieved at the working party meting held on 28 March 2006 I believe that I have the authority to bring applications to seek that determinations be made in the terms of the consent applications.’
The annexed affidavit of Mr Murray Hutchings dated 10 May 2006 has been detailed in Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL, NNTT WF06/16 [2006], NNTTA 55 (17 May 2006), The Hon CJ Sumner at paragraph [8] (‘WF06/16’).
On 1 April 2008 I convened a hearing at which all parties were represented, confirmed their consent in the terms sought and agreed that the inquiry could proceed on the papers pending the lodgement of Mr Hutching’s affirmed affidavit.
The Tribunal has previously accepted the difficulties in obtaining signatures of the Central East Goldfields named applicants to a State Deed as a legitimate basis for seeking a consent determination (WF05/16) and I adopt the relevant findings from that determination notably paragraphs [12]-[13] in relation to the responsibilities of the GLSC as a representative body, the manner in which the Tribunal is to carry out its functions under s 109 of the Act and that the native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant. Taking those findings into account I accept that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Prospecting Licences P27/1711, P27/1712, P27/1746, P27/1747, P27/1748 and P27/1749 to Heron Resources Ltd, may be done.
Daniel O’Dea
Member
17 April 2008
0
1
0