Cyril Barnes and Others on behalf of the Central East Goldfields People/ Western Australia/Western Metals Copper Ltd
[2007] NNTTA 4
•16 January 2007
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People/ Western Australia/Western Metals Copper Ltd, [2007] NNTTA 4 (16 January 2007)
Application No: WF06/48
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) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Western Metals Copper Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 16 January 2007
Catchwords: Native title — future acts — applications for determination for the grant of exploration licences — named applicant declines to sign state deed — 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 29, 31(1)(b), 31(3) 35, 38
Cases: Cyril Barnes on behalf of the Wongutha Yoongarra People (WC98/15)/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/1023 [1999] NNTTA 253 (22 September 1999) Member Lane.
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 August 2006
Representative of Mr Murray Hutchings, Goldfields Land and Sea Council
the native title party:
Representative of the Mr John Clarke, Wanati Pty Ltd
grantee Party:
Representatives of the Mr David Crabtree, Department of Industry and Resources
Government party: Mr Rod Wahl, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
Background facts
On 10 June 1998, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of two future acts being the grant of exploration licences E28/856 and E28/857 (“the proposed licences”) to Aberfoyle Resources Ltd. Included in each s 29 notice was a statement that the Government party considered that the grants attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act). Details of the proposed licences are as follows:
- E28/856: Located 75km Easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, encompassing an area of 17.68 square kilometres.
- E28/857: Located 81 km Easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, encompassing an area of 38.32 square kilometres.
On 8 October 1998 Aberfoyle Resources Ltd registered a change of company name with the Australian Security and Investments Commission to Western Metals Resources Ltd, which was reflected in the Department of Industry and Resources database on 10 December that year. Western Metals Resources Ltd became Western Metals Copper Ltd on 18 July 2000, again via a change of company name, which was entered into the DoIR database on 7 September 2001.
The native title party with respect to this matter is as follows:
- 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) (WC99/1 – registered from 10 February 2000) The external boundaries of this claim wholly overlap both of the proposed licences.
The currently Central East Goldfields People’s claim (WC99/30) results from an order to combine a number of previous applications lodged by various then native title parties, made by the Federal Court on 24 September 1999. This claim was entered on the Register of Native Title Claims on 4 October 1999 and has been continuously registered since then.
As noted in para [1], at notification the Government party asserted that the grant of the proposed licences attracted the expedited procedure. In response, on 17 July 1998, Cyril Barnes on behalf of the Wongutha Yoongarra People (WC98/15) lodged an expedited procedure objection with the Tribunal, designated WO98/1023. On 22 September 1999 the Tribunal issued a determination that the grants of the proposed licences were not acts attracting the expedited procedure (Cyril Barnes on behalf of the Wongutha Yoongarra People (WC98/15)/Western Australia/Aberfoyle Resources Ltd, NNTT WO98/1023 [1999] NNTTA 253 (22 September 1999) Member Lane.
From the date of the Tribunal’s determination, the full right to negotiate applied and parties sought assistance, under s 31(3) of the Act, to negotiate an agreement of the kind mentioned in s 31(1)(b). This application for mediation assistance was designated WM05/50 by the Tribunal.
On 13 July 2006, being a date more than six months after the s 29 notice was given the Central East Goldfields People made an application pursuant to s 35 of the Act for a future act determination under s 38 and requested the future act determination be made by consent, agreement having been reached through the mediation process.
Appended to the s 35 determination application was a minute of a consent determination in the following terms, executed by Mr Murray Hutchings, barrister and solicitor, on behalf of the Central East Goldfields People native title party. The proposed minute was subsequently executed by Mr John Clarke on behalf of the grantee party, and Ms Sheila Begg (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 28/856 & 28/857 may be done.’
The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray Hutchings, solicitor for the Central East Goldfields native title party, dated 12 July 2006. The contents of this affidavit and other evidence 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.
The inquiry
On 23 August 2006 the Tribunal conducted a hearing at which the native title party was legally represented by Mr Murray Hutchings. Mr Rod Wahl and Mr David Crabtree appeared for the Government party, whilst the grantee party was represented by Mr John Clarke, Wanati Pty Ltd. During this hearing Mr Hutchings confirmed that the facts relating to the native title party’s consent are the same as considered in Gindalbie save that the proposed licences and grantee party are different.
Findings
The law and facts relating to the native title party’s 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:
Para [10] that the Tribunal has power to make a consent determination.
Para [12] dealing with the facts giving rise to the applications for a consent determination.
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 Central East Goldfields People native title party.
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
By consent the determination of the Tribunal is that the act being the grant of exploration licences E28/856 and E28/857 to Western Metals Copper Ltd may be done.
Daniel O'Dea
Member
16 January 2007
0
1
0