Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Murchison Resources Pty Ltd
[2008] NNTTA 18
•7 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Murchison Resources Pty Ltd, [2008] NNTTA 18 (7 February 2008)
Application No: WF07/36
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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Murchison Resources Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 7 February 2008
Catchwords: Native title – future act – application for determination for the grant of prospecting licence – 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)
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 C J Sumner
Hearing date: 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 Mr Scott Wilson
grantee party: Murchison Resources Pty 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 20 April 2005, 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 prospecting licence P25/1819 (‘the proposed licence’) under the Mining Act 1978 (WA) to Murchison Resources Pty Ltd (‘the grantee party’). The proposed licence has an area of 86.93 hectares and is located 43 kilometres north easterly of Kambalda in the City of Kalgoorlie-Boulder.
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 16 November 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 in relation to the proposed licence. The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms and executed by Mr Murray Hutchings, barrister and solicitor, on behalf of the native title party. The minute was subsequently executed by Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party and Mr Scott Wilson on behalf of the grantee 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 Prospecting Licence 25/1819 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 Inquiry
On 23 January 2008, the Tribunal conducted a preliminary hearing at which the native title party was represented by Ms Jan Taylor from the Goldfields Land and Sea Council (‘GLSC’) (Mr Hutchings being unavailable). Mr Rod Wahl and Mr David Crabtree appeared for the Government party. Mr Wilson did not attend. At the hearing, I noted that Section 10 of the determination application referred to an attached affidavit containing evidence relevant to the circumstances in which the current application was brought, which was not, in fact, attached. I advised Ms Taylor that I would not make the determination until I had seen and evaluated the affidavit. Ms Taylor undertook to seek clarification from Mr Hutchings as to the whereabouts of the affidavit and, with no objection from the other parties, I adjourned the hearing until early February.
On 1 February 2008, the Tribunal received an affidavit sworn by Mr Hutchings on 1 February 2008, setting out the reasons for seeking a consent determination and attaching a further affidavit sworn by Mr Hutchings on 10 May 2006 in other proceedings concerning the same native title party. The contents of the 10 May 2006 affidavit have been set out in the reasons for decision 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 C J Sumner (‘Gindalbie’) at paras [6]–[8], [12] and are also applicable to this matter. 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 native title party collectively.
On 4 February 2008, the Tribunal conducted a hearing attended by Ms Taylor from the GLSC and Mr Wahl and Mr Crabtree for the Government party. Mr Wilson was unable to be contacted. At the hearing I confirmed that the affidavit of Mr Hutchings was lodged with the Tribunal setting out the reasons in support of an application for a consent determination in relation to the proposed licence. I also noted that consent minute had been signed by all parties. Ms Taylor confirmed her understanding that those instructions had been given by the native title party.
Findings
The law and facts relating to the native title party’s consent to a determination that the proposed licence may be granted are the same as considered in Gindalbie.I adopt the findings set out in paragraphs [10]–[14] of those reasons for the purposes of the determination of the present application. In particular, I conclude that Ms O’Loughlin’s refusal to execute the State Deeds does not relate specifically to the terms of the ancillary agreement. I am satisfied that the native title applicant collectively consents to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of prospecting licence P25/1819 to Murchison Resources Pty Ltd, may be done.
Daniel O'Dea
Member
7 February 2008
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