Dennis Sambo and Others on behalf of the Central West Goldfields People/Brian Champion and Others on behalf of the Gubrun People/Newcrest Mining Ltd/Western Australia

[2003] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Sambo and Others on behalf of the Central West Goldfields People/Brian Champion and Others on behalf of the Gubrun People/Newcrest Mining Ltd/Western Australia, [2003] NNTTA 67 (17 April 2003)

Application No:        WF03/8

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

Dennis Sambo and Others on behalf of the Central West Goldfields People – WC99/29 (Applicant/1^st Native Title Party)

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Brian Champion and Others on behalf the Gubrun People – WC95/27 (2^nd Native Title Party)

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Newcrest Mining Ltd (Grantee Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea
Place:  Perth

Date:  17 April 2003

Catchwords:    Native title - future act - application for determination for the grant of mining lease - consent determination that the act may be done.

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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Date:                 17 April 2003

Counsel for the               

Native Title Party:          Ms Kathy Burns, Goldfields Land and Sea Council

Representative of the

Grantee Party:                Mr Richard Wills, South Kal Mines Pty Ltd

Counsel the

Government Party:        Mr Trevor Creewel, Crown Solicitor’s Office

Representative of the     

Government Party:        Ms Karen Pye, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On or before 15 April 1997 the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant under the Mining Act 1978 (WA) of mining lease M26/567 to Newcrest Mining Ltd (‘the grantee party’).

2. The 1^st Native Title Party in respect of these proceedings is Dennis Sambo and Others on behalf of the Central West Goldfields People (WC99/29).

3. The 2^nd Native Title Party in respect of these proceedings is Brian Champion and Others on behalf of the Gubrun People (WC95/27).

4. On 11 March 2003, being a date more than six months after the s 29 notice was given, and later amended on 11 April 2003, the 1^st Native Title Party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act in relation to mining lease M26/567. The parties consent to a determination that the act may be done. The National Native Title Tribunal (‘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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

5. The Government Party has advised a transfer was registered on 22 August 2001 against the underlying granted exploration licence from Newcrest Mining Ltd to South Kal Mines Pty Ltd effecting a transfer of M26/567 to South Kal Mines Pty Ltd.

6. On 17 April 2003, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future act may be done in terms of the minute submitted jointly by Ms Kathy Burns, Solicitor with the Goldfields Land and Sea Council for the Native Title Party, Mr Trevor Creewel of the Crown Solicitor’s Office for the Government Party, and by Mr Richard Wills for and on behalf of the Grantee Party. The Goldfields Land and Sea Council is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Central West Goldfields and Gubrun native title claims.

1. The consent determination minute said:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)

   1. The Government Party has complied with the requirements of s 31(1)(a) of the Native Title Act 1993.

   2.   The Government Party, the Grantee Party and the 1^st Native Title Party have complied with the requirements of s 31(b) of the Native Title Act 1993.

   3.   The Government Party, the Grantee Party and the 1^st Native Title Party consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of mining lease 26/567 may be done.’

2. Paragraph 10 of the s 35 Application says:

   ‘(a)The 1^st native title party, consents to the proposed act being done, that is the grant of the mining lease the subject of this determination.  The grantee party and 1^st native title party confirm that an agreement has been reached between them, that the grantee party agrees to abide by the provisions of that agreement and that the title can therefore be granted in pursuance to the consent determination.

   (b)The 2^nd native title party has executed a State Deed which has been lodged with the National Native Title Tribunal.’

3. At the hearing on 17 April the grantee party confirmed that it consented to the making of the determination.  The 1^st native title party’s solicitor confirmed that she had instructions from her clients to consent as well.

4. The Tribunal received the State Deed between the grantee and 2^nd native title party on 14 February 2003, in which the 2^nd native title party agrees to the grant of the tenement as set out in that agreement.

5. I am satisfied that the Native Title Party consents to the determination in the terms set out in the above minute. Any effect of the future act on native title (s 39(1)(a)(i) of the Act) and sites of particular significance to the native title party (s 39(1)(a)(v)) will be minimised by the agreement between the grantee and the native title parties.

Determination

1. The determination of the Tribunal is that the act, being the grant of mining lease M26/567 to South Kal Mines Pty Ltd, can be done.

Daniel O’Dea
Member

17 April 2003