Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Wheelbarrow Prospecting Pty Ltd
[2007] NNTTA 97
•12 November 2007
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Wheelbarrow Prospecting Pty Ltd, [2007] NNTTA 97 (12 November 2007)
Application No: WF07/31
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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Wheelbarrow Prospecting Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 12 November 2007
Catchwords: Native title – future act – application for determination for the grant of exploration licence – named applicant declines to sign state deed – 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
Mining Act 1978 (WA)
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
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 5 November 2007
Counsel for the Mr Murray Hutchings, Goldfields Land and Sea Council
native title party:
Representative of the Mr Dennis Hawtin, Wheelbarrow Prospecting Pty Ltd
grantee party:
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
Background facts
On 11 April 2007, 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 exploration licence E25/338 (“the proposed licence”) under the Mining Act 1978 (WA) to Wheelbarrow Prospecting Pty Ltd (‘the grantee party’). The proposed licence is located 61 kilometres Easterly of Kambalda in the City of Kalgoorlie-Boulder, encompassing an area of 70.53 square kilometres. 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 19 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. The minute was subsequently executed by Mr Dennis Hawtin on behalf of the grantee party and 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 Exploration Licence 25/338 may be done.’
The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Hutchings, sworn on 5 November 2007. 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]. In summary, one of the persons named as an 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 Tribunal has the 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 5 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. Mr Hawtin represented the grantee party. All parties confirmed their consent to the determination in the terms sought.
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 being the grant of exploration licence E25/338 to Wheelbarrow Prospecting Pty Ltd may be done.
Daniel O'Dea
Member
12 November 2007
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