Cyril Barnes on behalf of the Wongatha People (WC99/1); Raymond Ashwin on behalf of the Wutha People (WC99/10) and Richard Guy Evans on behalf of the Koara People (WC99/5)/Allarrow Pty Ltd/State of Western Australia

[2005] NNTTA 48

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of the Wongatha People (WC99/1); Raymond Ashwin on behalf of the Wutha People (WC99/10) and Richard Guy Evans on behalf of the Koara People (WC99/5)/Allarrow Pty Ltd/State of Western Australia, [2005] NNTTA 48 (14 July 2005)

Application No:        WF05/7

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

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Cyril Barnes on behalf of the Wongatha People (WC99/1); Raymond Ashwin on behalf of the Wutha People (WC99/10) and Richard Guy Evans on behalf of the Koara People (WC99/5) (Applicant/native title parties)

- and -

Allarrow Pty Ltd (grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:           Hon C J Sumner, Deputy President

Place:                 Perth
Date:                  14 July 2005

Catchwords:     Native title – future act – application for determination for the grant of exploration licence – named applicants not signed agreement – native title parties as a whole consent to the determination – determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss 35, 38, 109, 203B, 203BB, 203BC

Cases:Bullen v WA [1999] FCA 1490

Evans v Native Title Registrar [2004] FCA 1070

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date:  14 July 2005

Counsel for the Koara,
Wongatha and Wutha
native title parties:  Mr Murray Hutching, Goldfields Land & Sea Council

Representative of the

grantee party:  Mr George Lee, Advanced Tenement Services Pty Ltd

Representatives of the              Mr Rod Wahl, State Solicitor’s Office
Government party:                  Ms Faye Mitchell, Department of Industry & Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 10 February 1998, 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 P37/5735 under the Mining Act 1978 (WA) to Allarrow Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. The native title parties in respect of these proceedings are:

• Ted Coomanoo Evans and Richard Guy Evans on behalf of the Koara  People (WC95/1 – registered from 12 October 1995 to 11 January 1999) (‘the Koara native title party’);

• Mr Aubrey  Lynch, Mr Cyril Barnes, Mr Dimple Sullivan, Mr Elvis Stokes, Mr Leo Thomas, Mr Les Tucker, Mr Murray Stubbs, Ms Pearlie Wells, Mr Ron Harrington-Smith, Ms Sadie Canning, Ms Thelma O’Loughlin and Ms Tomashisha Passmore on behalf of the Wongatha People (WC99/1 – registered from 10 February 2000) (‘the Wongatha native title party’);

• Mr Geoffrey Ashwin, Mr Ralph Edward Ashwin, Mr Raymond William Ashwin and Ms June Ashwin on behalf of the Wutha People (WC99/10 – registered from 15 June 1999) (‘the Wutha native title party’).

1. The Koara People’s native title claims WC95/1 and WC95/12 were combined into the Koara People’s native title claim WC99/5 on 11 January 1999, the combined claim being registered on the 24 March 1999.  It was subsequently removed from the Register on the 29 August 2003 on the grounds that the combined application did not meet the standard necessary to be accepted for registration.  This decision was the subject of appeal to the Federal Court, which dismissed that appeal on 19 August 2004 (Evans v Native TitleRegistrar [2004] FCA 1070). Nevertheless, it is my opinion that, pursuant to the transitional provisions of the Native Title Amendment Act 1998 (Schedule 5, Part 2, Items 4(2) and 11(11); Bullen v WA [1999] FCA 1490), the Koara People’s right to negotiate is preserved in relation to the proposed licence.

1. Two objections to the inclusion of the expedited procedure statement were lodged with the Tribunal; WO98/241 by the Koara People in respect of registered native title claim WC95/1 and WO98/257 by the Yulbarri Nomad Group (WC97/4 - later combined into the Wongatha People’s claim WC99/1). On 14 August 1998 I made consent determinations in relation to both objection applications that the expedited procedure was not attracted. As a consequence, the normal negotiation procedure provided for in s 31 of the Act applied from this date.

2. The proposed licence is situated in the Shire of Leonora and the area, location and percentage to which it overlaps each of the native title claims is as follows:

• P37/5735 – 142.05 hectares, 106 kilometres south east of Leinster;

  -100%  overlap with the Wongatha People’s native title claim boundary;

  -100% overlap with the Wutha People’s native title claim boundary; and

  -100% overlap with the Koara People’s native title claim boundary.

1. On 27 June 2005, being a date more than six months after the provisions of s 31 of the Act commenced to apply, Goldfields Land and Sea Council (on behalf of the native title parties) lodged an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licence. The application asserts that agreement had been reached regarding the doing of the act between the grantee and native title parties (in the form of a Goldfields Region Standard Heritage Agreement) but that the named applicants have not executed State Deeds (agreement prepared to satisfy s 31(1)(b) of the Act between all negotiation parties) as a consequence of ‘logistical difficulties obtaining all signatures on the State Deed in a timely manner’. The native title parties requested that, in view of the agreements reached, the future act determination be made by consent without conditions.

2. 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 Goldfields Land and Sea Council (‘GLSC’) is the designated representative body under the Act for the native title parties and has represented them in these proceedings. 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

1. Evidence of the parties’ consent to the determination was provided in the form of a Minute signed by the representatives of all parties.

2. On 14 July 2005 the Tribunal conducted a hearing at which the representatives of the grantee and the native title parties confirmed that agreement had been reached on the Regional Standard Heritage Agreement and that it had been signed by the grantee party.  They also confirmed their consent to the determination in the terms of the Consent Minute.  Mr Hutchings, as a legal practitioner, advised that he was satisfied that he had been properly instructed by the native title parties to consent to the determination in the terms sought.

Findings

1. I take into account that as the designated 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)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the GLSC’s legal representative on whether the appropriate consent has been given by the native title party. As a consequence, I am satisfied that these native title parties have consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Prospecting Licence 37/5735 to Allarrow Pty Ltd, may be done.  

Hon C J Sumner
Deputy President
14 July 2005