Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Gindalbie Metals Ltd
[2006] NNTTA 110
•8 August 2006
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Gindalbie Metals Ltd, [2006] NNTTA 110 (8 August 2006)
Application No: WF06/55
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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Gindalbie Metals Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 8 August 2006
Catchwords: Native title – future acts – application for determination for the grant of exploration licences – named applicant declines to sign state deed – regional standard heritage 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 35, 38, 109, 203B(4), 203
Cases:Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner
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), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner
Hearing date: 1 August 2006
Counsel for the
native title party: Mr Murray Hutchings, Goldfields Land and Sea Council
Representative of the
grantee party: Mr Garry Plowright, Gindalbie Gold NL
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Janice Goodwin, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 20 April 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E27/326 and E27/327 (‘the proposed licences’) under the Mining Act 1978 (WA) to Gindalbie Metals Ltd (‘the grantee party’).
The native title party with respect to these proceedings is Cyril Barnes, Elvis Stokes, Mercy O'Loughlin, Merle Forrest, Stevie Sinclair and Victor Willis on behalf of the Central East Goldfields People (WC99/30) (‘the native title party’).
Details of the proposed licences are as follows:
E27/326 – 2.96 square kilometres, located 75 kilometres north easterly of Kalgoorlie in the Shire of Kalgoorlie-Boulder City. It entirely overlaps the registered claim of the native title party;
E27/327 – 47.4 square kilometres, located 63 kilometres north easterly of Kalgoorlie in the Shire of Kalgoorlie-Boulder City. It entirely overlaps the registered claim of the native title party.
On 13 July 2006, 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 and appended to the s 35 determination application a minute of a consent determination in the following terms, executed by Mr Murray Hutchings, barrister and solicitor, on behalf of the native title party, and since executed by Mr Garry Plowright on behalf of the grantee party, and Mr Trevor Creewel (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 Exploration Licences 27/326 and 27/327 may be done.’
The reasons for seeking a consent determination are set out in paragraph 10 of the application and an attached affidavit of Mr Murray Hutchings, solicitor for the native title party, dated 12 July 2006:
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. Between January 2006 and June 2006 I received a number of State Deeds that had been prepared by the Department of Industry and Resources and forwarded to me by email.
5. Attached hereto and marked “A” is a schedule listing the actions referred to that resulted in State Deeds being drafted.
6. Annexed hereto and marked “B” is a copy of an affidavit dated 10th May 2006. (“the previous affidavit”).
7. 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.
8. 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.
9. 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 application for exploration and prospecting licensed applications only. The issue of state deeds following the successful negotiation of a ancillary agreement for a mining licence remains unresolved.
10. Following the outcomes achieved at the working party meeting held on 28 March 2006 I believe that I have the authority to bring applications to seek that determinations be made in terms of the consent applications.’
Schedule A of Mr Hutchings’ affidavit contains a list of exploration and prospecting licence applications and the respective grantee parties. Included in the list are the proposed licences and grantee party in this matter.
Schedule B contains an affidavit setting out the issues deposed to in para 7 of Mr Hutchings’ affidavit above:
‘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.Between January 2006 and March 2006 I received a number of State Deeds that had been prepared by the Department of Industry and Resources and forwarded to me by email.
5.Attached hereto and marked “A” is a schedule listing the actions referred to that resulted in State Deeds being drafted.
6.On receipt of the State Deeds I always follow a procedure whereby the State Deeds are forwarded to a project officer in the employ of the GLSC. It is then the project officer’s responsibility to make arrangements with each of the Applicants for the Central East Goldfields People Native Title Claim group to sign the documents.
7.I am informed and verily believe that the project officer, Dennis Forrest, contacted each applicant requesting that they sign the State Deeds.
8.The project officer managed to collect all but one of the necessary applicants signatures on the documents. The project officer informed me that one applicant, Mercy O’Loughlin refused to sign any Central East documents including the State Deeds.
9.On the 28 March 2006 I convened a meeting of the Central East Working Party.
10.The Central East working party was elected at a full claim meeting held on 22 November 2005. The object of the working party was that it was representative of the claim group and could conduct necessary business on behalf of the claim group between full claim meetings. The working party then reports to the full claim group at meetings. Full claim group meetings are held at least twice a year.
11.At the working party meeting held on 28 March 2006 four of the six named Applicants of the Central East claim group were present, including the Applicant who refused to sign the State Deeds. The remaining Applicants that were not present had previously signed the State Deeds.
12.At that meeting I intended to discuss the issue of signing the State Deeds with Ms O’Loughlin in the presence of the other claim group working party members.
13.Prior to beginning that discussion other claim group business was discussed. Within 30 mins of the meeting being convened Ms O’Loughlin left the meeting.
14.I asked the Applicant to remain to discuss future acts business. Her response was that she said “she was not interested in talking about that crap”.
15.I then explained to the remaining working party members the importance of signing the documents and I discussed with them alternative methods to allow the matters to proceed.
16.I explained that it was possible to bring an application seeking Consent Determinations in relation to the tenements the subject of the State Deeds.
17.I impressed on those present that it would be only possible to bring such applications seeking Consent Determinations on the basis that I had the authority of the claimant group to do so.
18.The working party then proposed the following resolution:
“The Central East working group directs the GSLC to bring an application in the NNTT to resolve issues relating to one Applicant not signing State Deeds for exploration and prospecting licence applications currently applied for and future applications.”
19.The motion was proposed, seconded, discussed and subsequently voted on. The motion was unanimously passed.
20.Following the working party meeting and with the assistance of the Department of Industry and Resources I prepared the Consent Determination applications and forwarded them by facsimile to the Tribunal.
21.Following the outcomes achieved at the working party meeting I believe that I have the authority to bring the applications to seek that determinations be made in terms of the consent applications.’
The affidavit referred to in para [8] is the same affidavit that was provided as evidence in an earlier matter in which the native title party sought and the Tribunal made a consent determination in relation to three exploration licences (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), Hon C J Sumner). In that matter (see para [10]) Mr Hutchings advised and I accepted that members of the claim group present at the Central East working party meeting of 28 March 2006 were Mary O’Loughlin, Stevie Sinclair, Merle Forrest and Cyril Barnes (named applicants) and Dennis Forrest, Daryl Graham and Thelma O’Loughlin (members of the claim group).
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 their 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 1 August 2006, the Tribunal conducted a hearing at which the native title party was legally represented by Mr Murray Hutchings. Mr Rod Wahl and Ms Janice Goodwin appeared for the Government party. Mr Garry Plowright appeared for the grantee party.
The representatives of the Government, grantee and native title parties confirmed their consent to the determination in the terms sought. As in WF06/16 Mr Hutchings advised that he was satisfied that the facts set out in the application and affidavit evidence were correct and that he and the Goldfields Land and Sea Council (‘GLSC’) had been properly instructed by the native title party to consent to the determination. He also informed the Tribunal that the ancillary agreement signed on behalf of the native title party and by the grantee party was the Regional Standard Heritage Agreement for exploration and prospecting endorsed by the GLSC, the Government party and industry and that this agreement contains provisions to protect Aboriginal heritage.
My findings in this matter are the same as made in WF06/16 (see paras [12], [13]). I accept, based on the evidence provided in the affidavit of Mr Hutchings, that the Central East working party and the named applicants mentioned have the authority of the claimant group to make decisions in accordance with the Act. As the recognised representative body under the Act, 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)). The Tribunal is entitled to accept as evidence the advice of GLSC’s representative on whether the appropriate consent has been given by the native title party.
The Tribunal has previously decided that it is appropriate to make a determination by consent in the event that a named applicant (or more accurately a person jointly comprising the applicant) refuses to sign a Ancillary Agreement or State Deed (i.e. a s 31(1)(b) agreement) (see for example Albert Little & Ors on behalf of the Badimia People/Western Australia/Maroubra Pty Ltd & Seaprince Holdings Pty Ltd, NNTT WF04/12, [2004] NNTTA 62 (16 July 2004), Hon C J Sumner). The native title party is the persons jointly comprising the applicant and not each individual person named as part of the applicant (Monkey Mia at [20] and Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner at [13]-[28]). I am satisfied that, despite the refusal of one named applicant (Ms Mercy O’Loughlin) to sign the State Deed, the native title party collectively consents to the determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of exploration licences E27/326 and E27/327 to Gindalbie Metals Ltd, may be done.
Hon C J Sumner
Deputy President
8 August 2006
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