Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia - [2006] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, [2006] NNTTA 49 (1 May 2006)

Application No: WF06/12

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 Wiluna (WC99/24) (Applicant/native title party)

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Murchison 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: 1 May 2006

Catchwords: Native title – future act – application for determination for the grant of prospecting licences – 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 acts may be done.

Legislation: Native Title Act 1993 (Cth), ss 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
Wilma Freddie and Others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia, NNTT WF06/11, [2006] NNTTA 48 (1 May 2006) Hon C J Sumner

Hearing date: 1 May 2006

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

Solicitor for the Ms Jasmine Campbell
native title party: Ngaanyatjarra Council (Aboriginal Corporation)

Representative of the
grantee party: Mr Nicholas Powrie, Tenement Administration 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 27 November 2002, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of prospecting licences P53/1143 and P53/1144 (‘the proposed licences’) under the Mining Act 1978 (WA) to Murchison Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.
The area, location and percentage to which the proposed licences overlap the Wiluna registered native title claim (WC99/24, registered from 24 September 1999) is as follows:

P53/1143-4 – 276.21 hectares (respectively 138.08 and 138.13 hectares), 75 kilometres north easterly of Wiluna in the Shire of Wiluna, 100% overlap.

The native title party with respect to these proceedings is Wilma Freddie & Others on behalf of Wiluna (WC99/24).
On 25 August 2003 the Tribunal made a consent determination in relation to expedited procedure objection application WO03/95 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 11 April 2006, being a date more than six months after the s 29 notices were given, the Ngaanyatjarra Council (Aboriginal Corporation) made…

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 Wiluna/Galaxy Resources Ltd/Western Australia [2006] NNTTA 49
Case: [2006] NNTTA 49
Decision Date: 1 May 2006

CaseChat Overview and Summary

Wilma Freddie and others on behalf of Wiluna/Galaxy Resources Ltd/Western Australia were involved in a legal dispute concerning the grant of prospecting licences over land subject to native title claims. The applicants sought a determination that certain future acts, namely the grant of prospecting licences, could be undertaken without extinguishing the native title rights. The named applicants, however, had not signed the state deed, and there were logistical difficulties in obtaining their signatures. The case was heard in the Federal Court of Australia.

The primary legal issues that the court had to address were whether the named applicants' signatures were necessary for the consent determination and whether the logistical difficulties in obtaining the signatures could be justified. Additionally, the court had to consider whether the execution of a Regional Standard Heritage Agreement by the grantee party and the native title party's consent to the determination were sufficient to validate the consent determination.

The court found that the named applicants' signatures were not strictly necessary for the consent determination, as long as their consent was genuinely given. It was held that the logistical difficulties in obtaining their signatures could be justified under certain circumstances. Furthermore, the execution of the Regional Standard Heritage Agreement and the native title party's consent to the determination were sufficient to validate the consent determination. The court concluded that the consent determination was valid and that the acts may be done.

As a result, the court made a consent determination that the acts, namely the grant of prospecting licences, may be done without extinguishing the native title rights. The determination was made in accordance with the wishes of the native title parties and the grantee party, and it facilitated the exploration and development of the land while respecting the native title rights.

Orders