Cyril Barnes and Others on behalf of the Central East Goldfields People, Brian Champion and Others on behalf of the Gubrun/Western Australia/Heron Resources Ltd, Hampton Nickel Ltd
[2008] NNTTA 19
•11 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People, Brian Champion and Others on behalf of the Gubrun/Western Australia/Heron Resources Ltd, Hampton Nickel Ltd [2008] NNTTA 19 (11 February 2008)
Application Nos: WF07/35, WF07/37
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Cyril Barnes and Others on behalf of the Central East Goldfields People (WC99/30) (Central East Goldfields People native title party)
- and -
Brian Champion and Others on behalf of the Gubrun (WC95/27) (Gubrun native title party)
- and -
The State of Western Australia (Government party)
- and -
Heron Resources Ltd, Hampton Nickel Ltd (grantee parties)
FUTURE ACT DETERMINATION
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 11 February 2008
Catchwords: Native title – future act – applications for determination for the grant of mining leases – named applicant declines to sign state deed – ancillary agreement – native title party as a whole consents to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 35, 38
Mining Act 1978 (WA)
Native Title Amendment Act 1998 (Cth), s 11(9)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Gindalbie Metals Ltd, NNTT WF06/55, [2006] NNTTA 110 (8 August 2006), Hon CJ Sumner
Hearing dates: 23 January 2008, 4 February 2008
Counsel for the Mr Murray Hutchings
native title party: Goldfields Land and Sea Council
Representative of the Ms Jan Taylor
native title party: Goldfields Land and Sea Council
Representative of the Ms Tracy Browning
grantee party: Heron Resources Ltd
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On the following dates the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of the following mining leases (‘the proposed leases’) under the Mining Act 1978 (WA) to the following grantee parties:
- WF07/35
On 4 July 1995, Mining Lease 25/151 to M R Dalla Costa. On 3 July 1996 the Government party re-advertised the notice to M R Dalla Costa in order to rectify an incorrect centroid in the first notification.
The proposed lease has an area of 363.36 hectares and is located 33 kilometres east of Kalgoorlie in the City of Kalgoorlie-Boulder. The proposed lease is 100 per cent covered by the claim of the Central East Goldfields People native title party (WC99/30).
- WF07/37
On 15 January 1996, Mining Lease 25/171 to M Epis. The proposed lease has an area of 121.09 hectares and is located 25 kilometres NNE of Kalgoorlie in the City of Kalgoorlie-Boulder. The proposed lease is 100 per cent covered by the claim of the Central East Goldfields People native title party (WC99/30).
On 10 November 1997, Mining Lease 25/206 to Energy Oil & Gas NL, Resolute Resources Ltd. The proposed lease has an area of 214.96 hectares and is located 31 kilometres east of Kalgoorlie-Boulder in the City of Kalgoorlie-Boulder. The proposed lease is 0.4% covered by the claim of the Central East Goldfields People native title party (WC99/30). The Gubrun native title party (WC95/27) claim covers 99.6% of the proposed lease.
On 17 September 1997, Mining Lease 25/231 to Western Mining Corporation Ltd, Resolute Resources Ltd, Energy Oil and Gas NL. The proposed lease has an area of 2.18 hectares and is located 37 kilometres north-east of Kalgoorlie-Boulder in the City of Kalgoorlie-Boulder. The proposed lease is 100 per cent covered by the claim of the Central East Goldfields People native title party (WC99/30).
Change of company name and deemed transfer registration details were filed with the Tribunal by the Department of Industry and Resources (‘DoIR’). In summary:
- The proposed lease M25/151 underwent an amendment (Holder), and two deemed transfers; the first from Melville Raymond Dalla-Costa to Supersorb Environmental NL and the second from Supersorb Environmental NL to the current holder Heron Resources Ltd.
- The proposed lease M25/171 underwent two deemed transfers from Mario Epis to Bulong Operations Pty Ltd and then to Regent Resources Ltd. In 2005, a change of name was registered from Regent Resources Ltd to Hampton Nickel Ltd.
- The proposed lease M25/206 underwent a name change from Energy Oil and Gas NL to Bulong Operations Pty Ltd, a deemed transfer from Resolute Resources Ltd and Bulong Operations Pty Ltd to Regent Resources Ltd and a second change of name in 2005 from Regent Resources Ltd to Hampton Nickel Ltd.
- The proposed lease M25/231 underwent a change of name from Energy Oil and Gas NL to Bulong Operations Pty Ltd, a second change of name from Western Mining Corporation Ltd to WMC Resources Ltd, a deemed transfer from Resolute Resources Ltd and WMC Resources Ltd and Bulong Operations Pty Ltd to Regent Resources Ltd and a third name change in 2005 from Regent Resources Ltd to Hampton Nickel Ltd.
The outcome of these transfers and changes of name were that at the time of this determination the grantee party for the various leases was as follows:
M25/151 – Heron Resources Ltd
M25/171 – Hampton Nickel Ltd
M25/206 – Hampton Nickel Ltd
M25/231 – Hampton Nickel Ltd
Ms Browning for the grantee party, Heron Resources Ltd, informed the Tribunal that Hampton Nickel Ltd was a 100 per cent owned subsidiary of Heron Resources Ltd and she sought to represent both grantees in the proceedings. The 2007 Heron Resources Annual Report was tendered to establish the details of ownership. I agreed to allow Ms Browning to speak on behalf of all grantees.
The native title parties in respect of these proceedings are:
WF07/35 and WF07/37
- Cyril Barnes, Elvis Stokes, Judy Slater (dec.), Mercy O’Loughlin, Merle Forrest, Stevie Sinclair and Victor Willis on behalf of the Central East Goldfields People (WC99/30).
WF07/37 – M25/206
- Brian Champion, Cadley Sambo, Name Withheld for Cultural Reasons, Name Withheld for Cultural Reasons, Dennis Sambo and Lyle Wilson on behalf of the Gubrun (WC95/27).
The Central East Goldfields People native title party application for determination of native title (WC99/30) results from an order to combine a number of previous applications made by the Federal Court on 24 September 1999. This determination application was entered on the Register of Native Title Claims on 4 October 1999 and has been continuously registered since that date.
The Gubrun native title party application for determination of native title (WC95/27) was filed on 27 July 1995 and removed from the RNTC on 26 July 1999 pursuant to sub-item 11(9) of Schedule 5 of the Native Title Amendment Act 1998 (Cwlth) (‘1998 Amendment Act’). Under the transitional provisions of the 1998 Amendment Act the right to negotiate for this determination application is preserved in relation to s 29 notices given prior to 30 September 1998.
With regard to the Gubrun native title party in respect of M25/206 a State Deed has been fully executed by all the living applicants of the claimant group (WC95/27) and the grantee party Bulong Operations Pty Ltd and Resolute Resources Limited. The State Deed was lodged with the Tribunal on 25 October 1999. In respect of the proposed leases M25/151, M25/171 and M25/231 there is no overlap with the Gubrun native title party now de-registered claim.
On 16 November 2007, being a date more than six months after the s 29 notice was given, the Central East Goldfields People native title party made the following applications pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed leases (‘applications’).
- WF07/35 in respect of M25/151; and
- WF07/37 in respect of M25/171, M25/206 and M25/231.
The Central East Goldfields People native title party requested that the future act determination be made by consent. A minute to consent determination was annexed to the s 35 determination applications in the following terms and executed by Mr Murray Hutchings, barrister and solicitor, on behalf of the Central East Goldfields People native title party. The minute was subsequently executed by Mr Norman Longworth, Director for Heron Resources Ltd on behalf of the grantee parties and by Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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…[the proposed leases] may be done.’
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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The reasons for seeking a consent determination set out in para 10 of the application are clarified in an affidavit sworn on 1 February 2008 by the solicitor for the native title party, Mr Hutchings in the following terms:
Affidavit of Murray William Hutchings:
‘I Murray William Hutchings C/- The Goldfields Land and Sea Council, 14 Throssell
Street Kalgoorlie, Solicitor make oath and say 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.
3.As part of my role I represent the Central East Goldfields People Native Title claim group. (WAD 70/98)
4.I have received a Consent Determination (form 5) that had been prepared by the Department of Industry and Resources and forwarded to me by email for tenement number M25/151 in the name of Heron Resources Ltd and M25/171, M25/231, M25/206 in the name of Hampton Nickel Ltd.
5.Annexed herto and marked “A” is a 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 Applicants to sign State Deeds and the procedure that I followed to obtain the consent of the majority of 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 to 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 licences applications only. The issue of the signing of State Deeds following the successful negotiation of an ancillary agreement for a mining licence remains unresolved.
9.However the situation is different with respect the tenements that are the subject of these consent determinations.
10.I have been provided evidence that Hampton Nickel Ltd is a wholly owned subsidiary company of Heron Resources Ltd.
11.Heron Resources Ltd has entered into a whole of claim area ancillary agreement on 17 July 2001 that provides certain benefits to the Central East People. That agreement covers all tenements that fall within boundaries of the Central East People Native title claim.
12.I therefore believe that it is not possible to object in any manner to the granting of these tenements.
13.Following the outcomes achieved at the working group meeting held on 28 March 2006 I believe that I have the authority to bring applications to seek that determination be made in terms of the consent applications.’
In para [5] of the affidavit, Mr Hutchings refers to a copy of an affidavit dated 10 May 2006 (“the previous affidavit”) which was marked at Annexure A to the Affidavit of 1 February 2008. The contents of the previous affidavit have been set out in Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Gindalbie Metals Ltd, NNTT WF06/55, [2006] NNTTA 110 (8 August 2006), Hon CJ Sumner (‘Gindalbie’) at para [8] and are applicable to these matters. In summary one of the persons named as part of the applicant for a determination of native title, Ms Mercy O’Loughlin, has refused to sign agreements entered into by the Central East Goldfields People native title party collectively.
In addition, para [11] of each application states that an agreement has been reached between the Central East Goldfields People native title party (WC99/30) and the grantee party.
Findings in relation to the Gubrun native title party
Because the Gubrun native title party has executed a State Deed in respect of the proposed lease M25/206 and the State Deed has been lodged with the Tribunal, it has not been necessary for that native title party to be represented in these proceedings. Having sighted the State Deed I am satisfied that the Gubrun native title party have agreed to the grant of the proposed lease and consent to a determination in the terms sought.
The inquiry and findings in relation to the Central East Goldfields People native title party
On 4 February 2008, the Tribunal conducted a hearing at which the Central East Goldfields People native title party was represented by Ms Taylor from the GLSC. Mr Wahl and Mr Crabtree appeared for the Government party. Ms Browning represented the grantee parties. I confirmed that the affidavit of Mr Hutchings was lodged with the Tribunal setting out the reasons in support of applications for consent determination in relation to the proposed leases. I also noted that consent minutes had been executed by all parties.
I conclude that the Central East Goldfields People native title party has entered into an agreement with the grantee that is referred to in Mr Hutchings’ affidavit which required the native title party to consent to the grant of the leases. Further, there is confirmation in the affidavit that Mr Hutchings has authority to consent to the grant of the leases in these circumstances.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of the following mining leases to the following grantee parties may be done:
·M25/151 to Heron Resources Ltd;
·M25/171, M25/206 and M25/231 to Hampton Nickel Ltd
Daniel O'Dea
Member
11 February 2008
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