Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Heron Resources Ltd; Pilbara Metals Pty Ltd

[2006] NNTTA 111

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Heron Resources Ltd; Pilbara Metals Pty Ltd, [2006] NNTTA 111 (8 August 2006)

Application Nos:       WF06/54; WF06/56

IN THE MATTER of the Native Title Act 1993 (Cth)

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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) (native title party)

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The State of Western Australia (Government party)

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Heron Resources Ltd (WF06/54)
Pilbara Metals Pty Ltd (WF06/56) (grantee parties)

FUTURE ACT DETERMINATIONS

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  8 August 2006

Catchwords:  Native title – future acts – applications for determination for the grant of exploration and prospecting 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 acts may be done.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38, 109

Cases: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 C J Sumner

Hearing date:  1 August 2006

Counsel for the  
native title party:                 Mr Murray Hutchings, Goldfields Land and Sea Council

Representatives  Mr Geoff Collis for Heron Resources Ltd (WF06/54)

of the grantee parties:         Mr John Clarke for Pilbara Metals Pty Ltd (WF06/56)

REASONS FOR FUTURE ACT DETERMINATION

Background facts

1. The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of the following future acts being the grant of prospecting and exploration licences to the specified grantee parties which are the subject of the future act determination applications (‘the applications’):

   (1)WF06/54

   Prospecting licence P25/1580 to Heron Resources NL on 24 June 1998.  Heron Resources NL has since changed its name to Heron Resources Ltd.  The proposed licence is 96.75 hectares and is located 48 kilometres north easterly of Kambalda in the Shire of Kalgoorlie-Boulder City.

   (2)WF06/56

   Exploration licence E24/140 to Pilbara Metals Pty Ltd on 1 June 2005.  The proposed licence is 5.93 square kilometres and is located 65 kilometres northerly of Kalgoorlie in the Shire of Kalgoorlie-Boulder City.

2. 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’).

3. On 13 July 2006, being a date more than six months after the s 29 notice was given, the native title party made the applications the subject of these reasons pursuant to s 35 of the Act for future act determinations under s 38. The native title party requested that the future act determination be made by consent.

4. Appended to the s 35 determination applications are minutes of consent determinations signed by representatives of each of the parties.

5. The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray Hutchings, barrister and solicitor employed by the Goldfields Land and Sea Council (‘GLSC”) for the native title party, dated 12 July 2006.  The contents of the affidavit and other evidence have been set out in my reasons for decision in Aubrey 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 C J Sumner (‘Gindalbie’) at paras [6]-[8], [12] and are also applicable to this matter.  One of the persons (Ms Mercy O’Loughlin) named as part of the applicant for a determination of native title has refused to sign agreements entered into by the native title party collectively.

The inquiry

1. On 1 August 2006 the Tribunal conducted hearings at which the native title party was legally represented by Mr Murray Hutchings.  Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party.  In a similar matter (WF06/55) the grantee party was represented, in the present matters the Tribunal decided, given the facts common to each application, that it could decide the matters on the papers without hearing the grantee party representatives.  In relation to all matters Mr Hutchings has confirmed that the facts relating to the native title party consent are the same as considered in Gindalbie except that the tenements and grantee parties are different.  He also confirmed that his affidavit relates to all the prospecting and exploration licences the subject of this determination.

Findings in relation to the native title party

1. The law and facts relating to the native title party consent to a determination that the proposed licences may be granted are the same as considered in Gindalbie.I adopt the findings from the following paragraphs of those reasons for the purposes of the determination of the present applications.

2. Para [10] that the Tribunal has power to make a consent determination.

3. Paras [12] dealing with the facts giving rise to the applications for a consent determination.

4. Para [13] including the findings relating to the responsibilities of the GLSC as the recognised representative body under the Act to protect the interests of native title holders, the manner in which the Tribunal is to carry out its functions under s 109 of the Act and that the Tribunal is entitled to accept as evidence the advice of the GLSC’s legal representations on whether the appropriate consent has been given by the Wongatha native title party.

5. Para [14] including that I am satisfied that the native title party collectively consents to the determination, despite the refusal of one of the persons jointly comprising the applicant to sign the State Deed.

Determination

1. By consent the determinations of the Tribunal are that the acts being the grants of the following prospecting and exploration licences may be done:

   ·   Prospecting licence P25/1580 to Heron Resources Ltd;

   ·   Exploration licence E24/140 to Pilbara Metals Pty Ltd.

Hon C J Sumner
Deputy President

8 August 2006