Linda Champion and Others on behalf of the Central West Goldfields People; Leonne Velickovic and Others on behalf of the Widji People/New Hampton Goldfields Ltd/Western Australia

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion and Others on behalf of the Central West Goldfields People; Leonne Velickovic and Others on behalf of the Widji People/New Hampton Goldfields Ltd/Western Australia, [2004] NNTTA 82 (14 September 2004)

Application No: WF04/23

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

Linda Champion and Others on behalf of the Central West Goldfields People (WC99/29) (Central West Goldfields native title party)

and

Leonne Velickovic and Others on behalf of the Widji People (WC98/27) (Widji native title party)

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New Hampton Goldfields Ltd (Applicant/grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 14 September 2004

Catchwords: Native title – future act – application for determination for the grant of mining leases – split in claimant group – native title party as a whole consent to the determination –consent determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38

Cases:Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner
Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner
Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner

Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner

Hearing date: 14 September 2004

Representative of the
Central West Goldfields
native title party: Ms Elizabeth Sambo

Representative of the
Widji native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the
grantee party: Mr John Clarke, Wanati Pty Ltd

Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

On 24 January 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of Mining Leases M15/1221 and M15/1223 under the Mining Act 1978 (WA) to New Hampton Goldfields Ltd (‘the grantee party’). On the same day, the Government party also gave notice under s 29 of the Act of the grant of Mining Leases 15/1222 and M15/1224 to Central Kalgoorlie Gold Mines Ltd. The four Mining Leases will be collectively known as ‘the proposed leases’ throughout this determination.
On 13 March 2001, Central Kalgoorlie Gold Mines Ltd effected a transfer of their interests in M15/1222 and M15/1224 to New Hampton Goldfields Ltd, pursuant to the provisions of s 49(3) of the Mining Act 1978 (WA) which allows the transfer of a mining lease application where a mining lease is applied for in respect of land the subject of a current valid prospecting licence and the prospecting licence is also being transferred.
The area and location of the proposed leases is as follows:
·      M15/1221 – 989.18 hectares, 12 kilometres west of Kambalda
·      M15/1222 – 869.36 hectares, 10 kilometres west of Kambalda
·      M15/1223 – 210.27 hectares, 12 kilometres south-west of Kambalda
·     M15/1224 – 913.67 hectares, 13 kilometres south-west of Kambalda

All proposed leases are situated in the Shire of Coolgardie and each one overlaps the relevant native title claims by 100%.

The native title parties in these proceedings are:
· Gary Dimer, Leonne Dale Velickovic, Lisa Bonney, Mary Anne Velickovic and Olivia Dimer on behalf of the Widji People (WC98/27) (‘the Widji native title party’); and
· Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper on behalf of the Central West Goldfields People (WC99/29) (‘the Central West Goldfields native title party’).

On 18 August 2004, being a date more than six months after the s 29 notice was given, New Hampton Goldfields Ltd made an application pursuant to s 35 of the Act for a future act determination under s 38. The applicant sought a determination that the act be done by consent.
The National Native Title Tribunal (‘the Tribunal’) has power to make a determination with the consent of the parties. While 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 (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361), the absence of legal representation does not preclude a consent determination being made provided the Tribunal is satisfied that the native title party has properly consented. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate

Background facts

As a consequence of negotiations between the parties including Tribunal mediation assistance pursuant to s 31(3) of the Act the following facts are established.

Each of the persons comprising the applicant, registered native title claimant and Widji native title party (WC98/27) have signed a Mining Agreement (‘ancillary agreement’) agreeing to the grant of the proposed leases to New Hampton Goldfields Ltd. In addition to the proposed leases this ancillary agreement also relates to Mining Leases and Miscellaneous Licences not relevant to this Inquiry. The ancillary agreement has also been signed by the grantee party.
Each of the persons comprising the applicant, registered native title claimant and Widji native title party (WC98/27) have signed a State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and each of the native title parties)) agreeing to the grant of the proposed leases to New Hampton Goldfields. This Deed has also been signed by the grantee party but some confusion surrounds the witnessing of the Widji applicant’s signatures, and the Tribunal’s reference number for the Widji claim (WC98/27) has been incorrectly recorded. These factors have precluded the execution of the State Deed by the Government party and subsequent lodgment with the Tribunal.
Each of the persons comprising the applicant, registered native title claimant and Central West Goldfields native title party (WC99/29) have signed a Mining Agreement (‘ancillary agreement’) agreeing to the grant of the proposed leases to New Hampton Goldfields Ltd. The ancillary agreement has also been signed by the grantee party.
Six of the persons comprising the applicant, registered native title claimant and Central West Goldfields native title party (WC99/29), namely, Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, and Nancy Wilson have signed a State Deed agreeing to the grant of the proposed leases to New Hampton Goldfields.
Two of the persons comprising part of the applicant and the Central West Goldfields native title party (Sue Wyatt and Victor Cooper) have not signed the State Deed.

Because the Widji State Deed has not been accepted by the Government party as an agreement pursuant to s 31(1)(b) of the Act, and because Ms Wyatt and Mr Cooper have not signed the Central West Goldfields State Deed, this matter cannot be concluded by way of a s 31 agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.

Central West Goldfields native title party evidence

On 14 September 2004, the Tribunal conducted a hearing. Ms Elizabeth Sambo, represented the Central West Goldfields native title party, Mr John Clarke represented the grantee party and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party. At the hearing these persons confirmed their consent to the future act determination in the terms sought. Ms Sue Wyatt and Mr Victor Cooper were invited to participate in the hearing but were unable to do so.
The Tribunal has before it a minute of a consent determination executed in counterparts by Elizabeth Sambo, John Clarke and Trevor Creewel on behalf of the Central West Goldfields native title party, grantee party and Government party respectively. The Minute is expressed 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 Native Title Act 1993.
2.The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3.The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Mining Leases 15/1221, 15/1222, 15/1223 & 15/1224 may be done.’

A split between persons named as part of the Central West Goldfields native title party was apparent in several previous matters before the Tribunal (Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner and Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004), Hon C J Sumner). In those matters the Tribunal pointed out that a native title party was all the named applicants (or more accurately all the persons named as part of the applicant) acting jointly and not each individual named applicant. This view has also been confirmed in Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner. Despite the position that an individual person named as part of an applicant for native title is not a party in these proceedings and entitled to be separately represented, the Tribunal informed Ms Wyatt and Mr Cooper of the hearing and provided them with the opportunity to make submissions.
Ms Wyatt did not participate in the hearing or contact the Tribunal in relation to it. During a telephone conversation with a Tribunal case manager on 13 September 2004, Mr Cooper advised that provided he had executed the ancillary agreement he consented to the act being done. Mr Cooper further advised that he had not signed the State Deed because he had not been provided with a copy of it.
My finding is that on the basis of the evidence referred to above the claim group as a whole consent to the determination. Each of the eight persons named as the applicant have signed the ancillary agreement and six of them have executed the State Deed thereby confirming that they consider the agreement has the support of the claimant group. Ms Wyatt and Mr Cooper are the only named applicants not to have signed the State Deed, but Mr Cooper has indicated that he consents to a determination permitting the grant of the proposed mining leases. For the reasons explained in the cases cited above Ms Wyatt is not a native title party and has no standing on her own to oppose the determination. It is also not clear on the evidence whether she actually opposes the grants. She has signed the ancillary agreement but not the State Deed. In any event I am satisfied that the claim group as a whole consent to the grant and would have been so satisfied (as I was in WF03/16 and WF03/17) even if Ms Wyatt and Mr Cooper had opposed it.

Widji native title party evidence

The representative for the Widji native title party, Mr Jerome Frewen, was advised in writing of the date for the hearing and, although not able to attend, verbally confirmed the Widji native title party’s consent to the act being done.
A minute of consent determination in similar terms to that relating to the Central West Goldfields People has been provided to the Tribunal, executed in counterparts by Mr Leonne Velickovic, Mr John Clarke and Mr Trevor Creewel on behalf of the Widji native title party, grantee party and Government party respectively.

Findings as to both native title parties

The determination sought does not include any conditions reflecting the terms of the ancillary agreement executed by either native title party and hence it is not necessary for me to be satisfied that any conditions are within the power of the Tribunal to impose (Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner at [6]; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner at [6]-[8]).

Determination

By consent the determination of the Tribunal is that the acts, namely the grant of Mining Leases M15/1221, M15/1222, M15/1223 and M15/1224 to New Hampton Goldfields Pty Ltd, may be done.

Hon C J Sumner
Deputy President
14 September 2004