Golden Cliffs Nl/Fabian Tucker & Ors on behalf of Kurrku/Western Australia

[2013] NNTTA 179

NATIONAL NATIVE TITLE TRIBUNAL

Golden Cliffs NL/Fabian Tucker & Ors on behalf of Kurrku/Western Australia, [2013] NNTTA 179 (17 December 2013)

Application No:              WF2013/0013, WF2013/0014

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into future act determination applications

Golden Cliffs NL (applicant/grantee party)

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Fabian Tucker & Ors on behalf of Kurrku (WC2010/018) (native title party)

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The State of Western Australia (Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATIONS

Tribunal:  Raelene Webb QC, President
Place:  Perth
Date:  17 December 2013

Catchwords: Native title – future acts – applications for determinations in respect of the proposed grant of mining leases - native title claimant application discontinued – person ceases to be a native title party – applications dismissed.

Legislation:Native Title Act 1993 (Cth), ss 28(1)(b), 29, 30(2), 30A, 31(1)(b), 35, 38, 39, 148(a)

Mining Act1978 (WA)

Representative of the     Mr Ken Green, Green Legal

grantee party:                 

Representatives of the     Mr Cameron Syme, Latro Lawyers

native title party:            Mr Daniel Jacobs, Goldfields Land and Sea Council

Representatives of the     Mr Warren Fitt, State Solicitor’s Office

Government party:         Ms Janice Goodwin, Department of Mines and Petroleum

REASONS FOR DECISION TO DISMISS SECTION 35 APPLICATIONS

1. On 4 April 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant mining leases M39/1077 and M39/1078 (‘the proposed leases’) to GME Resources Ltd. A search of the Mining Tenement Register maintained by the Department of Mines and Petroleum under the Mining Act 1978 (WA) indicates that a deemed transfer of the tenement applications was registered on 2 May 2012, with the effect that Golden Cliffs NL is now the registered applicant for the proposed leases. Accordingly, Golden Cliffs NL is the ‘grantee party’ for the purpose of ss 29(2)(c) and 30A of the Act.

2. The proposed leases comprise areas of 14.56 hectares (in the case of M39/1077) and 9.41 hectares (in the case of M39/1078) and are located 73 kilometres southerly of Laverton in the Shire of Leonora. At the time notice was given and at the end of the notification period, the land and waters on which the proposed leases are situated were subject to the Kurrku registered native title claim (WC2010/018 – registered from 21 January 2011). No other claim or determination area overlaps the proposed leases. The persons whose names appeared on the Register of Native Title Claims on behalf of Kurrku were therefore the native title party for the purpose of s 30A.

3. On 6 September 2013, the grantee party applied to the Tribunal for determinations under s 38 of the Act in respect of the proposed leases. The applications were made on the basis that the negotiation parties had not been able to reach agreement on the grant of the proposed leases within six months of the Government party giving notice of its intention to grant the proposed leases. When the applications were lodged, the native title party remained on the Register of Native Title Claims. I appointed myself as Member for the purpose of hearing the applications on 10 September 2013 and accepted the applications on 18 September 2013.

4. A preliminary conference was held to discuss the applications on 7 October 2013. At that conference, I issued directions for the conduct of an inquiry into the matters. Those directions were amended on 5 November 2013. The Government party provided a statement of contentions and list of documents on 14 November 2013, as did the grantee party on 21 November 2013. According to the directions as amended on 5 November 2013, the native title party, if it contended that the Government party or the grantee party had not negotiated in good faith, was to provide by 16 December 2013 a statement of contentions and supporting documentary evidence addressing that issue, and a statement of contentions and supporting evidence addressing the criteria in s 39 of the Act. On 6 December 2013, the Federal Court of Australia ordered that the native title party’s claimant application be discontinued. Consequently, the native title party was removed from the Register of Native Title Claims on 9 December 2013.

5. Section 30(2) of the Act provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant. Section 28(1)(b) also provides that an act attracting the right to negotiate is invalid to the extent that it affects native title unless, immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act. As there are now no registered native title claims or determinations of native title over the land or waters concerned, the act may be validly done without need for an agreement of the kind referred to in s 31(1)(b) of the Act or a determination by the Tribunal under s 38. That being the case, the Tribunal is no longer entitled to deal with the applications other than to dismiss them under s 148(a) of the Act.

Decision

1. The future act determination applications WF2013/0013 and WF2013/0014 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Raelene Webb QC
President
17 December 2013