Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Ltd - [2007] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Ltd [2007] NNTTA 69 (17 August 2007)

Application No: WF07/12

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

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (Applicant/native title party)

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The State of Western Australia (Government party)

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Bogada Gold Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal: John Catlin, Member

Place: Perth
Date: 17 August 2007

Catchwords: Native title - future act - application for determination for the grant of exploration licence - named applicants not signed state deed - logistical difficulties - Heritage Agreement executed by grantee party - native title party consents to the determination - consent determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 109

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

Hearing date: 17 August 2007

Representative of the Mr Chris Clegg
grantee party: Statewide Tenement and Advisory Service Pty Ltd

Representative of the Mr Malcolm O’Dell
native title party: Central Desert Native Title Services

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

REASONS FOR FUTURE ACT DETERMINATION

On 2 November 2005 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 E53/1097 (‘the proposed licence’) to Bogada Gold Ltd (‘the grantee party’).
The proposed licence is 215.3 square kilometres located 54 kilometres northeasterly of Wiluna in the Shire of Wiluna and is 100 per cent overlapped by the registered native title claim of the Wiluna People (WC99/24, registered from 24 September 1999).
The native title party with respect to these proceedings is Alan Ashwin, Barry Abbott, Billy Patch, Dusty Stevens, Friday Jones, Jimmy Morgan, Joyce Tullock, Judy Ashwin, Kenny Farmer, Kitty Richards, Les Tullock, Margie Jackman, Mickey Wongawol, Norman Thompson, Wilma Freddie on behalf of the Wiluna Native Title Claimants (WC99/24).
On 19 July 2007, being a date more than six months after the s.29 notice was given Central Desert Native Title Services on behalf of the native title party made an application pursuant to s.35 of the Act for a future act determination under s.38.
The native title party requested that the future act determination be made by consent and appended a minute of a consent determination executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently executed by Mr Jeff O'Halloran on behalf of the Government party and Mr Chris Clegg on behalf of the grantee party:
‘CONSENT…

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: Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Ltd [2007] NNTTA 69
Case: [2007] NNTTA 69
Decision Date: 17 August 2007

CaseChat Overview and Summary

The case before the court involved the Wiluna Native Title Claimants, represented by Wilma Freddie and others, against the State of Western Australia and Bogada Gold Ltd. The dispute centred on the applicants' request for a determination that would allow the grant of an exploration licence over land subject to native title claims. Notably, the named applicants had not signed the State Deed, and there were logistical challenges to overcome. The Heritage Agreement, executed by the grantee party, had the consent of the native title party, who also consented to the determination that the act could proceed.

The primary legal issues before the court were whether the named applicants' lack of signature on the State Deed precluded the determination and if logistical difficulties could be resolved in a manner consistent with the consent of the native title party. The court had to balance the procedural requirements of the Native Title Act 1993 (Cth) with the practicalities of granting the licence and the consent provided by the native title party.

In its decision, the court found that despite the absence of signatures from the named applicants on the State Deed, the consent provided by the native title party was sufficient to allow the determination. The court recognised the logistical challenges but concluded that these could be managed effectively. The Heritage Agreement and the consent to the determination provided a framework within which the act could be approved. The court granted the consent determination, allowing the exploration licence to be issued.

The final orders included a consent determination that the grant of the exploration licence could proceed, subject to the terms and conditions set out in the Heritage Agreement and any other relevant agreements. The court's decision acknowledged the complexities of native title claims and the need for practical solutions that respect the rights of all parties involved.

Orders