Heron Resources NL/Wongatha People (WC99/1)/Western Australia

[2002] NNTTA 222

NATIONAL NATIVE TITLE TRIBUNAL

Heron Resources NL/Wongatha People (WC99/1)/Western Australia, [2002] NNTTA 222 (29 October 2002)

Application No: WF02/26

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

Heron Resources NL (Applicant/Grantee Party)

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Wongatha People (WC99/1) (Native Title Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:                   Hon E. M. Franklyn, Q.C., Deputy President
Place:  Perth
Date:  29 October 2002

Catchwords: Native title - future act - application for determination for the grant of
prospecting licences - 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: 29 October 2002

Representative for the
Grantee Party:   Ms Lisa Bowyer, Axis Consultants Pty Ltd

Counsel for the
Native Title Parties:             Ms Kathy Burns, Goldfields Land and Sea Council

Representative of the
Government party:              Mr Rod Wahl, Crown Solicitor’s Office; Ms Karen Pye and
  Ms Leanne Morgan, Department of Mineral & Petroleum
  Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On or before 10 March 1998, the State of Western Australia (‘the Government Party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant under the Mining Act 1978 (WA) of prospecting licences P31/1570, P31/1571, P31/1572 and P31/1573 to Heron Resources NL.

1. The Native Title Party in respect of these proceedings is: The Wongatha People
   (WC99/1).

1. On 9 October 2002, 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 of the Act in relation to prospecting licences P31/1570, P31/1571, P31/1572 and P31/1573. The application sought a determination by consent of all parties. 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).

1. On 29 October 2002, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future acts may be done in terms of the minute submitted jointly by the Ms Kathy Burns, a solicitor with the Goldfields Land and Sea Council for the Native Title Party, Mr Rod Wahl of the Crown Solicitor’s Office for the Government Party, and by Ms Lisa Bowyer of Axis Consultants Pty Ltd for the Grantee Party. The Goldfields Land and Sea Council is a recognised representative Aboriginal and Torres Strait Islander body under the Act.

1. The said minute is signed by Ms Kathy Burns for and on behalf of the Native Title Party, by Mr David Prentice, General Manager Axis Consultants Pty Ltd for and on behalf of the Grantee Party, and by Mr Jeff O’Halloran, Senior Assistant Crown Solicitor for and on behalf of the Government Party. The authority of each such signatory to sign the minute was confirmed by the parties respective representatives at the hearing. The minute is in the following terms:

“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   NativeTitle Act 1993.

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

3. The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of prospecting licences 31/1570, 31/1571, 31/1572, 31/1573 may be done.”

[6] Paragraph 10 of the s 35 application says:

“(a)      The native title party, consents to the proposed act being done, that is the grant   of the prospecting licences the subject of this determination, given that the   grantee party has provided a written undertaking to the Goldfields Land and   Sea Council, to undertake and complete a heritage survey or surveys prior to   ground disturbing work occurring and in consultation with the Wongatha   People and the GLSC.

(b)        The grantee party and native title party confirm that an agreement has been   reached regarding the protection of Aboriginal heritage and that the titles can   therefore be granted in pursuance of the consent determination.”

[7] I find that the facts set out in paragraph 10 of the s 35 application are established and am satisfied that the Native Title Party as a group consent to the determination in the terms set out in the said minute. The Native Title Party has been represented in this matter throughout by the Goldfields Land and Sea Council. Ms Burns confirmed at the hearing that the claim group as a whole consented to the determination.

Determination

The determination of the Tribunal is that the acts, being the grant of prospecting licences P31/1570, P31/1571, P31/1572 and P31/1573 to Heron Resources NL can be done subject to the condition that the Grantee Party execute the heritage protection agreement referred to in subparagraph (b) of paragraph 10 of the s 35 application if that has not already been done.

Hon EM Franklyn, QC
Deputy President
29 October 2002