Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd - [2006] NNTTA 130

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Newmont Wiluna Gold Pty Ltd, [2006] NNTTA 130 (12 September 2006)

Application No: WF06/68

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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Newmont Wiluna Gold Pty Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal: John Catlin, Member

Place: Perth
Date: 12 September 2006

Catchwords: Native title – future act – application for determination for the grant of prospecting licence – named applicants not signed state deed – logistical difficulties – Alternative 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: 25 August 2006

Representative of the
grantee party: Pauline Carr, Director Newmont Wiluna Gold 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 23 April 2003, 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 prospecting licence P53/1100 (‘the proposed licence’) under the Mining Act 1978 (WA) to Newmont Wiluna Gold Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.
The proposed licence comprises an area of some 179.68 hectares located 10 kilometres southerly of Wiluna in the Shire of Meekatharra 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 9 July 2003, the native title party lodged an objection to the expedited procedure statement with the Tribunal (WO03/506). On 12 November 2003, the Tribunal made a consent determination that the expedited procedure was not attracted which meant that the normal negotiation procedure provided for in s.31 of the Act applied from this date.
On 9 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…

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/Newmont Wiluna Gold Pty Ltd [2006] NNTTA 130
Case: [2006] NNTTA 130
Decision Date: 12 September 2006

CaseChat Overview and Summary

In the case of Wilma Freddie and others on behalf of the Wiluna Native Title Claimants versus Western Australia and Newmont Wiluna Gold Pty Ltd, the Federal Court of Australia was presented with a dispute concerning the grant of a prospecting licence over native title land. The Wiluna Native Title Claimants sought a determination that would permit the state to issue a prospecting licence for gold exploration to Newmont Wiluna Gold Pty Ltd, a mining company. The named applicants were not parties to the state deed that was in place, and logistical challenges arose in obtaining their signatures. Instead, the parties executed an Alternative Heritage Agreement, which was consented to by the native title party, allowing the determination to proceed.

The central legal issue was whether the court could make a consent determination that allowed the state to grant the prospecting licence, given that the named applicants were not signatories to the state deed. The court needed to consider the implications of the Alternative Heritage Agreement and whether it could be used to facilitate the determination despite the absence of the named applicants' signatures. Additionally, the court had to assess whether the consent of the native title party was sufficient to proceed with the determination.

The court held that it could make the consent determination as the native title party's consent was valid and sufficient. The logistical difficulties in obtaining signatures from the named applicants did not preclude the making of the determination, as the Alternative Heritage Agreement provided a viable alternative. The court found that the consent of the native title party, coupled with the execution of the Alternative Heritage Agreement, was enough to allow the determination to proceed. Consequently, the court determined that the prospecting licence could be granted.

The final orders of the court included the granting of the prospecting licence, with conditions to ensure that the native title rights and interests of the Wiluna Native Title Claimants were protected and considered during the exploration activities. The court's decision provided a framework for future acts that may affect native title land, balancing the rights of native title holders with the interests of mining companies and the state.

Orders