Richard Guy Evans (Koara People WC95/1);Geoffrey Alfred Ashwin, Ralph Edward Ashwin, Raymond William Ashwin and June Ashwin (Wutha People WC99/10); Albert Little, Ollie George, Irene Harris, Richard Little, Des...

[2002] NNTTA 132

NATIONAL NATIVE TITLE TRIBUNAL

Richard Guy Evans (Koara People WC95/1);Geoffrey Alfred Ashwin, Ralph Edward Ashwin, Raymond William Ashwin and June Ashwin (Wutha People WC99/10); Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of Badimia (WC96/98)/Windimurra Resources Pty Ltd/Western Australia, [2002] NNTTA 132 (8 July 2002)

Application Nos:      WF02/12, WF02/13 and WF02/15

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

Richard Guy Evans (Koara People WC95/1) – WF02/12 and WF02/13

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Geoffrey Alfred Ashwin, Ralph Edward Ashwin, Raymond William Ashwin and June Ashwin (Wutha People WC99/10) – WF02/12

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Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of Badimia (WC96/98) – WF02/15 (Native Title Parties)

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Windimurra Resources Pty Ltd (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:  8 July 2002

Catchwords:    Native title - future act - applications for determination for the grant of exploration licences - consent determination that the acts 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

Counsel for the

native title party (WF02/12 and 13):          Ms Kathy Burns, Goldfields Land and Sea Council

Counsel for the

native title party (WF02/15):          Ms Frances Flanagan, Yamatji Land and Sea Council

Representative of the

native title party (WF02/15):          Mr Cedric Davies, Yamatji Land and Sea Council

Counsel for the               

Government party:                 Mr Mark Di Renzo, Crown Solicitor’s Office

Representative of the

Government party  Mr Phil Mirabella, Department of Mineral and Petroleum Resources

Representative of the

grantee party:                 Mr Steve Stone

REASONS FOR FUTURE ACT DETERMINATION

1. On 15 December 1999, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of exploration licences E58/235 and E58/232 (‘the exploration licences’) under the Mining Act 1978 (WA) to Windimurra Resources Pty Ltd (‘the grantee party’).

2. The native title parties in respect of these proceedings are:

• Richard Guy Evans on behalf of the Koara People (WC95/1) – WF02/12 (E58/235) and WF02/13(E58/232);

• Geoffrey Alfred Ashwin, Ralph Edward Ashwin, Raymond William Ashwin and June Ashwin (Wutha People WC99/10) – WF02/12 (E58/235); and

• Albert Little, Ollie George, Irene Harris, Richard Little, Des Thompson, Gloria Fogarty, Percy George, Frank Walsh (Jr), John Ashwin, Wilma Lawson, Clara George, Olive Gibson, Hazel Little, Frank Walsh (Sr), Des Little and Nancy Wallam on behalf of the Badimia People WC96/98 – WF02/15 (E58/232 and E58/235)

1. The Koara claim intersects approximately 42.3% of the area of E58/232 and 52.6% of the area of E58/235.  The Wutha claim intersects approximately 4.4% of E58/235.  The Badimia claim intersects 100% of the area of E58/232 and approximately 95.6% of E58/235.  

2. On 19 June 2002, being a date more than six months after the s 29 notice was given, the native title parties with respect to WF02/12 (Koara and Wutha) and WF02/13 (Koara) made applications pursuant to s 35 of the Act for a future act determination under s 38. Amended applications were lodged on 3 July 2002. The native title party with respect to WF02/15 (Badimia) made application on 21 June 2002.

3. 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).

4. On 8 July 2002, the Tribunal conducted a hearing. The exploration licences are subject to the normal negotiations required by s 31(1)(b) of the right to negotiate provisions of the Act, the Tribunal having previously made a consent determination that the expedited procedure was not attracted (WO00/130).

WF02/12 (Koara and Wutha) and WF02/13 (Koara)

1. The grantee party has agreed with the Goldfields Land and Sea Council (‘GLSC’) to undertake heritage surveys with both the Koara and Wutha People prior to any ground disturbing activity, in order to ensure no Aboriginal sites are disturbed. As agreement has been reached the grant of the exploration licences would normally be made following the execution of a State Deed by all negotiation parties (an agreement of the kind mentioned in s 31(1)(b) of the Act). However, given the difficulties previously experienced by the GLSC in obtaining signatures and its limited resources due to the Wongatha People’s claim for determination of native title currently being heard before the Federal Court, the GLSC on behalf of the Koara and Wutha People has sought to assist in expediting the grant of the exploration licences by seeking a future act consent determination. The GLSC is the designated representative Aboriginal/Torres Strait Islander body under the Act for the area of the Koara and Wutha claims.

2. The representatives of all parties have signed documents in which they consent to the determination.

3. At the hearing all parties through their representatives, confirmed their consent to the determination requested. I am satisfied that each native title party as a group consents to the determination being sought and that it is appropriate in this case to resolve this matter by consent determination rather than by the execution of a State Deed. I also note that the grantee party has provided the GLSC with written undertakings to conduct a heritage survey over the exploration licences with the native title arties in order to address heritage concerns and thus ensure that there is unlikely to be any interference with sites of significance to the native title parties in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

WF02/15 (Badimia)

1. By letter dated 21 June 2002 the applicant, through its representative Mr Cedric Davies of Yamatji Land and Sea Council (‘the YLSC’), the designated representative Aboriginal Torres Strait Islander Body under the Act for the claim area, requested the Tribunal to make a determination with the consent of all parties. The letter advised that the grantee and native title party had reached agreement on the grant of the exploration licences at a working group meeting of the native title party at Mt Magnet on 26 February 2002. The agreement is based on an undertaking by the grantee party to fund and facilitate heritage surveys prior to undertaking certain ground disturbing activities. The YLSC were instructed to proceed with a consent determination application to the National Native Title Tribunal.

2. Representatives of all parties have signed a document in which they consent to the determination.

3. At the hearing, all parties through their representatives, confirmed their consent to the determination requested. I am satisfied on the evidence provided at the hearing that the native title party as a group consents to the determination being sought. I also note that heritage surveys of the exploration licence are to be undertaken pursuant to the agreement, thus ensuring that there is unlikely to be any interference with sites of significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E58/232 and E58/235 to Windimurra Resources Pty Ltd, may be done:

   • in the case of the Koara People and the Wutha People, without conditions; and
   • in the case of the Badimia People, subject to a condition that the acts are to be done pursuant to the agreement entitled ‘Contract for Services in Relation to Exploration’ dated 6 March 2002. 

Hon C J Sumner
Deputy President

8 July 2002