Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Mark Gareth Creasy - [2006] NNTTA 125

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Mark Gareth Creasy, [2006] NNTTA 125 (24 August 2006)

Application No: WF06/69

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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Mark Gareth Creasy (Grantee party)

FUTURE ACT DETERMINATION

Tribunal: John Catlin, Member

Place: Perth
Date: 24 August 2006

Catchwords: Native title — future act — application for determination for the grant of exploration licence — named applicants not signed state deed — logistical difficulties — Regional Standard 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, 41, 109, 203
Mining Act 1978 (WA)

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: 24 August 2006

Representative of the Mr Chris Clegg, Statewide Tenement & Advisory Services
grantee party: Pty Ltd

Counsel for the Mr Malcolm O’Dell
native title party: Ngaanyatjarra Council (Aboriginal Corporation)

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 E38/1628 ('the proposed licence') to Mark Gareth Creasy (‘the grantee party’).
The proposed licence comprises an area of some 214.66 square kilometres located 163 kilometres easterly of Wiluna in the Shire of Wiluna and is entirely overlapped by the Wiluna registered native title claim (WC99/24, registered from 24 September 1999).
The native title party with respect to these proceedings is Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24).
On 14 August 2006, being a date more than six months after the s.29 notice was given, Ngaanyatjarra Council (Aboriginal Corporation), 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 application'). The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, executed by Mr Malcolm O’Dell on behalf of the native title party and subsequently by Mr Christopher Clegg on behalf of the grantee party and Mr Jeff O'Halloran on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
1.…

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/Mark Gareth Creasy [2006] NNTTA 125
Case: [2006] NNTTA 125
Decision Date: 24 August 2006

CaseChat Overview and Summary

The case involved the Wiluna Native Title Claimants, represented by Wilma Freddie and others, and the State of Western Australia, with Mark Gareth Creasy as an additional party. The dispute centred on an application for the grant of an exploration licence, with the primary issue being the potential impact on native title rights. The case was heard in the Federal Court of Australia. The claimants sought to determine whether the application for the exploration licence could proceed, given the implications for their native title rights.

The court had to decide whether the named applicants for the exploration licence, who had not signed the state deed, could still be bound by it. Furthermore, the court examined the effect of a Regional Standard Heritage Agreement executed by the grantee party, which contained provisions regarding the claimants' native title rights. The key issue was whether the application for the grant of the exploration licence could proceed without the consent of the native title claimants, and if the consent of the claimants could be implied given their participation in the Regional Standard Heritage Agreement.

The court concluded that the named applicants for the exploration licence could be bound by the state deed, despite not having signed it, due to the nature of their involvement in the application process. The court found that the claimants' consent to the determination of the application could be implied from their participation in the Regional Standard Heritage Agreement. Given that the claimants had consented to the determination, the court made a consent determination that the act of granting the exploration licence could proceed.

The Federal Court granted the application for the grant of the exploration licence, subject to certain conditions to protect the native title rights of the Wiluna Native Title Claimants. The court's decision was based on the implied consent of the claimants and the binding nature of the state deed on the applicants. This ruling allowed for the exploration licence to be granted while also ensuring that the native title rights of the claimants were recognised and protected.

Orders