Ron Harrington-Smith and Others on behalf of Wongatha/ Phyllis Thomas and others on behalf of Mantjintjarra Ngalia/ Western Australia/ Regis Resources Nl
[2007] NNTTA 33
•24 April 2007
NATIONAL NATIVE TITLE TRIBUNAL
Ron Harrington-Smith and Others on behalf of Wongatha/ Phyllis Thomas and others on behalf of Mantjintjarra Ngalia/ Western Australia/ Regis Resources NL, [2007] NNTTA 33 (24 April 2007)
Application No: WF06/39
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Aubrey Lynch and Others on behalf of Wongatha (WC99/1) (Wongatha native title party)
- and -
Phyllis Thomas and others on behalf of Mantjintjarra Ngalia (WC96/20) (Mantjintjarra Ngalia native title party)
- and -
The State of Western Australia (Government party)
- and -
Regis Resources NL (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 24 April 2007
Catchwords: Native title — future acts — applications for determination for the grant of exploration licences — named applicants decline to sign state deed — regional standard heritage agreement — dismissal s148(a) — no jurisdiction.
Legislation:Native Title Act 1993 (Cth), ss 29, 30A, 30(2), 31(1)(b), 35, 38, 109, 148(a), 190A
Native Title Amendment Act 1998 (Cth), Schedule 5, Part 4, items 4(2), 11(3), (9) and (11)
Mining Act 1978
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Harrington-Smith v Native Title Registrar [2007] FCA 414, 22 March 2007
Hearing dates: 31 July 2006, 1 August 2006, 18 August 2006
Representative
of the native title Mr Murray Hutchings
parties: Goldfields Land and Sea Council
Representative
of the grantee Ms Lisa Bowyer
party: Axis Consultants Pty Ltd
Representative
of the Government Mr David Crabtree and Ms Faye Mitchell, Department for
party: Planning and Infrastructure;
Mr Rod Wahl, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
Background
On 3 April 1997, 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 licence E38/965 under the Mining Act 1978 to Johnson’s Well Mining NL. Proposed exploration licence E38/965 is 12.09 square kilometres in area and is located 60 kilometres northerly of Laverton in the Shire of Laverton.
On 29 June 1998 the Government Party gave notice under s 29 of the Act of a future act namely the grant of exploration licence E38/1098 under the Mining Act 1978 to Johnson’s Well Mining NL. Proposed exploration licence E38/1098 is 6.04 square kilometres in area and is located 59 kilometres westerly of Cosmo Newberry in the Shire of Laverton.
On 28 September 2004 Johnson’s Well Mining NL changed its name to Regis Resources NL, thereby transferring beneficial ownership of exploration licences E38/965 and E38/1098 (‘the proposed licences’) to Regis Resources NL (‘the grantee party’).
The native title parties in respect of these proceedings are said to be:
· Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Thomashisha Passmore on behalf of Wongatha (WC99/1) (‘the Wongatha native title party’); and
· Phyllis Thomas, Morris Murphy, Dolly Walker, Nancy Gordon, Kado Muir, Jane Beasley, Vanessa Thomas and Mindi Chapman on behalf of Mantjintjarra Ngalia Peoples (WC96/20) (the Mantjintjarra Ngalia native title party).
Each of the proposed licences is 100 per cent overlapped by the claims of the Wongatha and Mantjintjarra Ngalia native title parties.
On 13 July 2006, being a date more than six months after the s 29 notice was given the Wongatha native title party and the Mantjintjarra Ngalia native title party made the application the subject of these reasons pursuant to s 35 of the Act for a future act determination under s 38. The Wongatha native title party and the Mantjintjarra Ngalia native title party requested that the future act determination be made by consent.
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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The inquiry in relation to the Wongatha native title party
On 31 July 2006 and 1 August 2006 the Tribunal conducted hearings at which the Wongatha native title party was legally represented by Mr Murray Hutchings, solicitor employed by the Goldfields Land and Sea Council. Mr Rod Wahl, Mr David Crabtree and Ms Faye Mitchell appeared for the Government party. The grantee party was represented by Lisa Bowyer. Mr Hutchings asserted, by way of two affidavits dated 12 July 2006 and 4 September 2006 that he was satisfied he had been sufficiently instructed by the Wongatha native title party to consent to the determination. No further hearings were held in relation to the Wongatha native title party.
The inquiry in relation to the Mantjintjarra Ngalia native title party
The Mantjintjarra Ngalia native title determination application was lodged on 11 March 1996 and accepted for registration under s 190A of the Act from 11 March 1996 to 23 April 1999.
At the time this application was made, the Mantjintjarra Ngalia native title determination application retained the right to negotiate through the operation of the transitional provisions contained in Schedule 5, Part 4, item 11(9 ), Native Title Amendment Act 1998 (Cth).
At a preliminary conference convened on 18 August 2006 the Tribunal established that insufficient documentation had been provided evidencing consent of the Mantjintjarra Ngalia native title party to the doing of the act. Accordingly the Tribunal set directions requiring affidavit evidence of the Mantjintjarra Ngalia native title party’s consent on or before 18 September 2006. These directions were subsequently amended on several occasions to grant Mr Hutchings time to meet with the Mantjintjarra Ngalia native title party in relation to this matter.
Findings in relation to the Wongatha and Mantjintjarra Ngalia native title parties
On 5 February 2007, prior to the provision of the evidence of consent of the Mantjintjarra Ngalia native title party, the Wongatha native title determination application in its entirety and the Mantjintjarra Ngalia native title determination application insofar as it overlapped with the Wongatha application, were dismissed by the Federal Court. The Wongatha determination application was subsequently removed from the Register of Native Title Claims on 13 March 2007.
The dismissal disposes of all proceedings under the Act in relation to the Wongatha and Mantjintjarra Ngalia overlap area, as it is no longer part of the Federal Court proceedings in the relevant applications. In Harrington-Smith v Native Title Registrar [2007] FCA 414, 22 March 2007 per Lindgren J at [14] to [20] held in relation to three applications seeking an injunction it would “be incongruous that an entry of such prima facie native title rights and interests should remain on the Register [of Native Title Claims] after the Court has heard and dismissed the related application. The fact that the compromise [registration of claims] accords benefits to claimants on a prima facie basis is no reason why, following a hearing and dismissal of their claim, the prima facie position should not be supplanted. Once there has been a dismissal, the reason for the compromise has disappeared, and one would expect the prima facie position to be supplanted.”
On the same reasoning, the “reason for the compromise” ie the retained native title party status under the Transitional Provisions Schedule 5 Part 4 items 4(2), 11(3), (9) and (11) of the Mantjintjarra Ngalia applicants as old Act pre 27 June 1996 in relation to old Act s 29 notices is supplanted by the dismissal of the Mantjintjarra Ngalia application to the extent of the overlap between Mantjintjarra Ngalia and Wongatha.
Further, the Transitional Provisions which apply to the removal of the Mantjintjarra Ngalia application from the Register of Native Title Claims are procedural and can have no effect on proceedings that have been dismissed.
As the proposed licences are within the dismissed Mantjintjarra Ngalia and Wongatha overlap area, the Mantjintjarra Ngalia applicants are no longer a party to the negotiations as defined in s 29(2), s 30(2) and s 30A and Transitional Provisions 11(11). In this case, the protective provisions of the Transitional Provisions only apply to the residual area of the Mantjintjarra Ngalia application (that has not been dismissed). As such there is no Mantjintjarra Ngalia or Wongatha native title party to consent to this future act determination application. If there is no native title party to consent to the future act determination application it can be dismissed under s 148(a) of the Act provided that — as is the case in the present matter — there are no other native title parties to the application.
Decision
The application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Daniel O'Dea
Member
24 April 2007
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