Gay Harris and Others on behalf of the Sir Samuel People (WC95/58) and Gay Harris and Others on behalf of the Sir Samuel No. 2 People (WC95/82)/Outokumpu Mining Australia Pty Ltd/Western Australia

[2002] NNTTA 185

NATIONAL NATIVE TITLE TRIBUNAL

Gay Harris and Others on behalf of the Sir Samuel People (WC95/58) and Gay Harris and Others on behalf of the Sir Samuel No. 2 People (WC95/82)/Outokumpu Mining Australia Pty Ltd/Western Australia, [2002] NNTTA 185 (21 August 2002)

Application No:        WF02/21

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

- and -

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

Gay Harris and Others on behalf of the Sir Samuel People (WC95/58)

and
Gay Harris and Others on behalf of the Sir Samuel No. 2 People (WC95/82) (Native title parties)

- and -

Outokumpu Mining Australia 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:  21 August 2002

Catchwords:    Native title - future act - application for determination for the grant of exploration licence - 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:                 20 August 2002

Counsel for the

native title parties:          Ms Kathy Burns, Goldfields Land and Sea Council

Counsel for the

grantee party:                 Ms Sandra Brown, Gadens Lawyers

Counsel for the               

Government party:         Mr Mark DiRenzo, Crown Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On or before 10 June 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 exploration licence E53/804 (‘the exploration licence’), under the Mining Act 1978 (WA) to Outokumpu Mining Australia Pty Ltd (‘the grantee party’).

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

• Gay Harris, Adeline Hennessey, Cecily Harris, Dolly Walker, Edna Sceghi, Eileen Clause, Geoffrey Ashwin, Graham Narrier, Harvey Scadden, Irene Allison, John Ashwin, June Harrington-Smith, Kado Muir, Katherine Adams, Keith Sceghi, Lawrence Harris, Les Tullock, Lorna Willis-Jones, Maxine Beaman, Michael Tullock, Ralph Ashwin, Raymond Ashwin, Reynold Allison, Richard Narrier, Rita Elliott, Russell Elliott, Shirley Wonyabong, Ted Tullock, Tony Green (Sir Samuel Claim WC95/58); and

• Gay Harris and all the above named persons (Sir Samuel No 2 Claim WC95/82).

1. Neither of Claims WC95/58 and WC95/82 are currently on the Register of Native Title Claims and the current applicants on the claims are not identical to those who were on the claims when they were originally lodged and registered on 27 September 1995 and 18 December 1995 respectively.  Even though the applicants are not currently registered native title claimants, they have the status as native title parties in these proceedings because of the Transitional Provisions of the Native Title Amendment Act 1998 which came into operation on 30 September 1998 (Item 11(11) – Table A, Schedule 5). These provisions preserve the right to negotiate for claimant applications made under the old Act before 27 June 1996 irrespective of the outcomes of the registration test under the new Act, provided that a s 29 notice was given under the old Act. In respect of WC95/58, the applicants on 27 September 1995 who remain applicants are Dolly Walker, Keith Sceghi, Eileen Clause, Rita Elliott, Shirley Wonyabong and Kado Muir. Other applicants were added to the claim by amendments made on 21 February 1997 and 29 September 1998. In respect of WC95/82, Reynold Allison was the only applicant on 18 December 1995 and remains an applicant on the claim. Other applicants were added to the claim by amendments made on 29 September 1998. Accordingly there is no jurisdictional impediment to the Tribunal making a determination.

2. On 1 August 2002, being a date more than six months after the s 29 notice was given, the native title parties made a joint application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the exploration licence. An amended application was filed on 9 August 2002. The exploration licence is subject to the normal negotiations required by s 31(1)(b) of the right to negotiate provisions of the Act. The Tribunal had previously determined that the expedited procedure was not attracted (WO98/1075).

3. 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

4. On 20 August 2002, the Tribunal conducted a hearing. The parties have reached agreement and consent to a determination that the exploration licence may be granted. As agreement has been reached State Deeds (agreements of the kind mentioned in s 31(1)(b)) would normally be executed by all negotiation parties to facilitate the granting of the exploration licence. In this case a heritage survey has already been carried out by the native title parties in conjunction with Newmont Yandal Operations Limited (who will be carrying out the exploration as a joint venture with the grantee party). In these circumstances the native title parties, have authorised the Goldfields Land and Sea Council (the Native Title Representative Body for the area of the claim) to assist in expediting the grant of the exploration licence by seeking a future act consent determination.

5. The representatives of all parties have signed a minute of Consent Orders that:

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

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

   3.The act the subject of these proceedings, being the grant of exploration licence E53/804 to the Grantee Party, may be done may be done without conditions imposed by the Tribunal.’

1. At the hearing all parties through their representatives, Ms Kathy Burns counsel for the native title party, Ms Sandra Brown counsel for the grantee party, and Mr Mark DiRenzo (Crown Solicitor’s Office) counsel for the Government party, confirmed their consent to the determination requested. I am satisfied on the evidence cited above and provided at the hearing that the native title parties consent to the determination being sought. I also note that as a heritage survey has already been carried out there is unlikely to be any interference with sites of particular significance to the native title parties in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E53/804 to Outokumpu Mining Australia Pty Ltd, may be done.

Hon C J Sumner
Deputy President

21 August 2002