Linda Champion on behalf of the Central West Goldfields People/ /Western Australia/New Hampton Goldfields Pty Ltd/South Kal Mines Pty Ltd
[2005] NNTTA 74
•17 October 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/ /Western Australia/New Hampton Goldfields Pty Ltd/South Kal Mines Pty Ltd, [2005] NNTTA 74 (17 October 2005)
Application Nos: WO04/372 WO05/97 WO05/104
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Linda Champion on behalf of the Central West Goldfields People – WC99/29 (native title party)
-and-
The State of Western Australia (Government party)
-and-
South Kal Mines Pty Ltd (WO04/372, WO05/104) (grantee party)
and
New Hampton Goldfields Ltd (WO05/97) (grantee party)
CONSENT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of decision: 17 October 2005
Catchwords: Native title – future act – proposed grant of prospecting and exploration licences – expedited procedure objection applications – consent determination that the acts attract the expedited procedure
Legislation:Native Title Act 1993 (Cth) ss 29, 32(4), 237
Acts Interpretation Act 1901 (Cth) s 36(2)
Cases:Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, [2005] NNTTA 35 (30 May 2005), Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Western Australia/South Kal Mines Pty Ltd, NNTT WO05/159, [2005] NNTTA 42 (7 June 2005), Hon C J Sumner
Representative of the
native title party: Ms Elizabeth Sambo
Representative of the
grantee parties: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DETERMINATION
Background
On the following dates the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant the following licences to South Kal Mines Pty Ltd and included in the notices a statement that it considered that the grant attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act):
3 November 2004 - Prospecting Licences P26/3289, P26/3290 and P26/3291
26 January 2005 – Exploration Licence E15/733
On 26 January 2005, the Government party also gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence E25/243 to New Hampton Goldfields Ltd and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The aforementioned licences will collectively be referred to as the proposed licences, and South Kal Mines Pty Ltd and New Hampton Goldfields Ltd shall be referred to as the grantee parties.
On 30 December 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 - (‘the Central West Goldfields native title party’) lodged an expedited procedure objection application with the Tribunal in relation to P26/3289, P26/3290 and P26/3291 (WO04/372).
An issue arose in relation to whether objection WO04/372 was received within the statutory period of four months from the s 29 notification day. The deemed closing date taking into account the weekend and public holidays was 29 December 2005 (s 36(2) Acts Interpretation Act 1901 (Cth)). I considered this issue in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, [2005] NNTTA 35 (30 May 2005) and my findings are applicable to this matter. The objector was given the benefit of the doubt regarding the day the objection was first able to be delivered and it was therefore accepted (s 77). When the parties were notified of the receipt of the objection their attention was drawn to this issue. No party challenged the acceptance decision and the Tribunal therefore has jurisdiction to deal with the objection.
On 23 March 2005 Linda Champion, a named applicant and representative of the Central West Goldfields People, also lodged expedited procedure objection applications with the Tribunal in relation to E25/243 (WO05/97) and E15/733 (WO05/104).
Relevant facts
The proposed licences are entirely overlapped by the registered claim of the Central West Goldfields People. The areas and locations of the proposed licences are as follows:
P26/3289 – 195.94 hectares, 21 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder;
P26/3290 – 195.95 hectares, 23 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder;
P26/3291 – 193.32 hectares, 23 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder.
E25/243 – 8.82 square kilometres, 35 kilometres northerly of Kambalda in the City of Kalgoorlie-Boulder;
E15/733 – 2.93 square kilometres, 19 kilometres westerly of Kambalda in the Shire of Coolgardie.
The proposed licences are also overlapped 100% by the registered claim of the Widji People (WC98/27). The Widji People lodged objection WO04/320 in relation to P26/3289 to P26/3291 inclusive on 15 November 2004. I dismissed that objection pursuant to s 148(b) of the Act on 8 August 2005 for failure to proceed with the application and failure to comply with a direction of the Tribunal. The Widji People have not lodged objections with respect to the proposed exploration licences.
Proposed licences P26/3289 to P26/3291 are also overlapped 100% by the Maduwongga People’s native title claim, which was registered at the time of the s 29 notice (WC99/9). The Maduwongga People have not lodged objections with respect to these licences and that claim has since been de-registered.
The Tribunal initially made directions on 13 January 2005 in relation to WO04/372 and 8 April 2005 in relation to WO05/97 and WO05/104 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 1 July 2005 (WO04/372) and 26 September 2005 (WO05/97 and WO05/104). Directions in relation to all matters were amended on several subsequent occasions to facilitate ongoing negotiations but during a Listing Hearing convened by me on 9 September 2005 it became apparent that parties were not able to reach agreement and an Inquiry became inevitable. By this time both the Government and grantee parties had complied with earlier directions and I permitted a further extension of time to the native title party to supply contentions and evidence by 23 September 2005.
At an adjourned Listing Hearing convened by me on 30 September 2005 the native title party representative, Ms Elizabeth Sambo, advised that she had submitted a statement of contentions but owing to personal circumstances had not been able to provide supporting evidence by way of an affidavit. Ms Sambo indicated that she was prepared to consent to a determination that the expedited procedure was attracted but requested that certain conditions be applied to the determination. Section 32(4) of the Act provides that where an objection against the inclusion of the expedited procedure statement is received by the Tribunal, it must determine whether the act is an act attracting the expedited procedure. There is, however, no provision for the Tribunal to impose conditions and for this reason I was unable to give consideration to Ms Sambo’s request. In the light of this Ms Sambo requested further time to supply affidavit evidence in support of the native title party’s statement of contentions in order that the matters be determined by the Tribunal. Accordingly and with the agreement of all parties, I approved that request, permitting the native title party to supply an affidavit on or before 7 October 2005.
On 11 October 2005, by which time no affidavit evidence had been received from the native title party, Ms Sambo forwarded correspondence by email to the Tribunal advising as follows:
‘I will accept the consent determination for those two companies and for those leases only’
Tribunal case manager, Sara Burke, sought clarification of this advice by return email, advising that it was the Tribunal’s intention to determine that by consent the expedited procedure was attracted in relation to the proposed licences, and requesting that the native title party advise by 13 October 2005 if this was not an accurate reflection of its position. No response has been received to date.
I find that the native title party now consents to a determination that the expedited procedure is attracted. I also observe that the statement of contentions provided by the native title party is similar in form to those supporting a number of previous objections lodged by the Central West Goldfields People in relation to tenements in the vicinity of Kalgoorlie and Coolgardie (see for example Linda Champion on behalf of the Central West Goldfields People/Western Australia/South Kal Mines Pty Ltd, NNTT WO05/159, [2005] NNTTA 42 (7 June 2005), Hon C J Sumner). Upon examination of submissions provided by all parties in those matters I found that the expedited procedure was attracted. I have nothing before me in relation to the present matters to suggest that the outcomes would be any different were the determination not to be by consent.
I also note that the grantee party undertakes to complete heritage surveys in the subject areas (para (3), Statement of Contentions), that it has executed Regional Standard Heritage Agreements (‘RSHA’) in relation to the proposed licences and has offered those agreements to the native title party (para (4)), that it undertakes to liaise closely with the Central West Goldfields People while conducting exploration on the subject areas (para (5)), and that it will comply with relevant heritage and environmental legislation (paras (6), (11) and (12)). I find that the grantee has demonstrated a history of cooperation with Indigenous people and is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage.
I note for the record that the Government party has also proposed an extra condition to be imposed on the grant of the proposed licences requiring that the grantee parties, if so requested by the Central West Goldfields People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the RSHA for the Goldfields region in favour of the Central West Goldfields People in respect of the area covered by the proposed licences (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [24]). This condition at least will have the effect of ensuring that the Central West Goldfields native title party can insist on a heritage survey to protect Aboriginal heritage.
Decision
By consent the determination of the Tribunal is that the grant of prospecting licences P26/3289, P26/3290 and P26/3291, and exploration licences E25/243 and E15/733 are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
17 October 2005
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