Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Areta Pearl Rose and Sharon Marie Rogers
[2007] NNTTA 106
•14 December 2007
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Areta Pearl Rose and Sharon Marie Rogers, [2007] NNTTA 106 (14 December 2007)
Application No: WF07/33
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
Cyril Barnes and Others on behalf of the Central East Goldfields People (WC99/30) (native title party)
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The State of Western Australia (Government party)
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Areta Pearl Rose and Sharon Marie Rogers (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 14 December 2007
Catchwords: Native title – future act – application for determination for the grant of mining lease – logistical difficulties – 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(1)(a)(b), 35, 38, 109(1), 109(3), 203B(4), 203BC(1)(a), 203BB(1)(b), 203BC(1)(b), 203BC(2)
Mining Act 1978 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner
Hearing date: 20 November 2007, 13 December 2007
Counsel for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representative of the
grantee party: Ms Sharon Marie Rogers
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 26 April 2006, 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 mining lease M27/475 (“the proposed licence”) under the Mining Act 1978 (WA) to Areta Pearl Rose and Sharon Marie Rogers (‘the grantee party’). The proposed licence is located 55 kilometres Northerly of Kalgoorlie in the City of Kalgoorlie-Boulder, encompassing an area of 54.7 hectares. The proposed licence is 100 per cent overlapped by the registered claim of the native title party.
The native title party in respect of these proceedings is 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 – registered from 4 October 1999).
On 30 October 2007, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. The 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 application in the following terms and executed by Mr Murray Hutchings, solicitor, on behalf of the native title party and Ms Sharon Rogers on behalf of the grantee party. The minute was subsequently executed 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 Mining Lease 27/475 may be done.’
Paragraph 10 of the application notes:
‘1.There are logistical difficulties in arranging for the Native Title Party to execute a State Deed in respect of the tenement sought by the Grantee Party as contemplated by s.31(1)(b) of the Native Title Act.
2.The Central East Goldfields People have instructed the future act solicitors of the representative body (the Goldfields Land & Sea Council) to sign a consent determination on behalf of the Central East Goldfields claimant group in order to facilitate the granting of Mining Lease 27/475.’
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 inquiry
On 20 November 2007 the Tribunal conducted a hearing at which the native title party was legally represented by Mr Hutchings, Mr Rod Wahl and Mr David Crabtree represented the Government party and Ms Rogers represented the grantee party. At the hearing Mr Wahl and Ms Rogers confirmed their consent to the determination in the terms sought. Mr Hutchings for the applicant advised that he could not confirm that consent had been obtained from the native title party to allow the matter to be finalised by way of a consent determination that the act may be done. Mr Hutchings also advised that the native title party had not fully executed the ancillary agreement. In order to redress this he sought leave to consult with the native title party at the next working group meeting to be convened in early December to obtain consent and finalise the execution of the ancillary agreement. On this basis and with the concurrence of the other parties I adjourned the hearing until 13 December to enable Mr Hutchings to confirm the details of the position of the native title party.
On 13 December 2007 the Tribunal conducted an adjourned hearing. The native title party was legally represented by Mr Hutchings, Mr Wahl and Mr Crabtree represented the Government party and Ms Rogers represented the grantee party. Mr Hutchings confirmed that he had met with the native title party at the working group meeting held on 12 December and gave assurance that he had obtained their consent to allow the matter to be finalised by way of a consent determination that the act may be done. Mr Hutchings also confirmed that the ancillary agreement had been executed by the named applicants.
Findings
I take into account that as the representative body under the Act, Goldfields Land and Sea Council (the GLSC) has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)); see also Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner at [10]. Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the GLSC’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, and on the basis of the information contained in the application, the statement at paragraph 10, the signed minute of consent by all parties and in particular the confirmation by Mr Hutchings at the adjourned hearing I am satisfied that the native title party has consented to the determination application.
Determination
By consent the determination of the Tribunal is that the act being the grant of mining lease M27/475 to Areta Pearl Rose and Sharon Marie Rogers may be done.
Daniel O'Dea
Member
14 December 2007
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