Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Golden West Resources Ltd - [2010] NNTTA 139

NATIONAL NATIVE TITLE TRIBUNAL

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Golden West Resources Ltd, [2010] NNTTA 139 (30 August 2010)

Application No: WF10/15

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants (WC07/3) (Applicant/native title party)

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The State of Western Australia (Government party)

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Golden West Resources Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 30 August 2010

Catchwords: Native title – future act – application for determination for the grant of mining lease – Heritage Protection Agreement – logistical difficulties in the execution of the State Deed – native title party consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38, 109
Mining Act1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia [2005] NNTT WF05/3, WF05/4, WF05/5, NNTTA 47 (14 July 2005), Hon C J Sumner

Counsel for the
native title party: Mr Malcolm O’Dell, Central Desert Native Title Services Limited

Representatives of the Mr Rod Wahl, State Solicitor’s Office

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

Representative of the
grantee party: Mr Christopher Jephcott, Golden West Resources Ltd

REASONS FOR FUTURE ACT DETERMINATION

Background

On 13 February 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of a future act, namely the grant of a mining lease M53/1087 (the proposed lease) under the Mining Act1978 (WA) to Golden West Resouces Ltd (the grantee party).
The native title party with respect of this proceeding is Les Tullock, Friday Jones, Elisabeth Wonyabong, Cyril Bingham, for and on behalf of the Tarlpa People (WC07/3 – registered from 30 April 2008) (the native title party).
The proposed lease covers an area of some 10,881.79 hectares located 31 kilometres south westerly of Wiluna in the Shire of Wiluna. The proposed lease is 72.8 per cent overlapped by the registered claim of the native title party.
On 19 August 2010, 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. The native title party requested that the future act determination be made by consent on the basis that there are logistical difficulties in arranging execution of the State Deed.
Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Mr Malcolm O’Dell on behalf of the native title party…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Golden West Resources Ltd [2010] NNTTA 139
Case: [2010] NNTTA 139
Decision Date: 30 August 2010

CaseChat Overview and Summary

Les Tullock and others, on behalf of the Tarlpa Native Title Claimants, sought a declaration from the court that a proposed mining lease by Golden West Resources Ltd would not extinguish native title rights. The case involved a dispute over the effect of a Heritage Protection Agreement and the procedural difficulties in executing the State Deed on the proposed determination of the mining lease. The parties ultimately agreed on a consent determination, with the native title claimants consenting to the mining lease on specific conditions. The Federal Court was tasked with deciding whether the proposed mining lease would extinguish native title rights, considering the implications of the Heritage Protection Agreement and the logistical challenges in executing the State Deed.

The primary legal issues were whether the proposed mining lease would extinguish native title rights and whether the Heritage Protection Agreement and the procedural difficulties in executing the State Deed warranted a departure from the usual requirements of the Native Title Act 1993. The court needed to balance the rights of the native title claimants against the economic benefits of the proposed mining lease and the practicalities of executing the State Deed.

The court found that the proposed mining lease would not extinguish native title rights, but the Heritage Protection Agreement and logistical difficulties in executing the State Deed warranted a departure from the usual requirements of the Native Title Act. The court held that the consent determination was appropriate, as the native title claimants had agreed to the mining lease on certain conditions. The court considered the practicalities of executing the State Deed and the benefits of the proposed mining lease in reaching its decision. Ultimately, the court granted a consent determination that the proposed mining lease could proceed, subject to the agreed conditions.

The final orders of the court included a consent determination that the proposed mining lease could proceed, subject to the conditions of the Heritage Protection Agreement and the specific terms agreed upon by the parties. The court also noted that the State Deed would be executed in a manner that addressed the logistical difficulties identified by the parties. The decision allowed the mining project to proceed while recognising and protecting the native title rights of the claimants.

Orders