Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/ Western Australia - [2005] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/ Western Australia, [2005] NNTTA 47 (14 July 2005)

Application Nos: WF05/3, WF05/4 and WF05/5

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into Future Act Determination Applications

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

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Newmont Yandal Operations 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: 14 July 2005

Catchwords: Native title – future acts – application for determination for the grant of mining lease – application for determination for the grant of exploration licence – application for determination for the grant of prospecting licence – named native title applicants not signed state deed – existing regional agreement - 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, 203B, 203BB, 203BC
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date: 14 July 2005

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

Counsel for the

grantee party: Ms Sandra Brown, Gadens Lawyers

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

REASONS FOR FUTURE ACT DETERMINATION

Background

On 5 December 1997, 11 June 1999 and 15 December 2004 respectively the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of the following tenements under the Mining Act 1978 (WA) (‘proposed tenements’):

Prospecting Licence P53/986 to Great Central Mines Ltd (WF05/3).
Exploration Licence E53/814 to Great Central Mines Ltd (WF05/4).
Mining Lease M53/534 to Australian Metals Corporations Pty Ltd, Hunter Resources Pty Ltd and Eagle Mining Pty Ltd (WF05/5).

Three changes of name were registered on 27 June 2000, 23 April 2002 and 23 June 2003; from Great Central Mines Ltd to Normandy Yandal Operations Limited to Newmont Yandal Operations Limited to Newmont Yandal Operations Pty Ltd respectively. Australian Securities and Investments Commission (ASIC) current company extract results dated 23 June 2005 note that Australian Metals Corporations Pty Ltd, Hunter Resources Pty Ltd and Eagle Mining Pty Ltd are through other companies wholly owned by Newmont Yandal Operations Pty Ltd (‘the grantee party’).

All proposed tenements are situated in the Shire of Wiluna and the area, location and percentage to which each of the proposed tenements overlap the Wiluna native title claim is as follows:

P53/986 – 14.68 hectares, 60 kilometres east of Wiluna; 100% overlap;
E53/814 – 30.58 square kilometres, 84 kilometres east of Wiluna; 3.48% overlap;
M53/534 – 728.09 hectares, 132 kilometres north east of Leinster; 100% overlap.

The native title party in respect of these proceedings are Wilma Freddie and Others on behalf of Wiluna (‘the native title party’).
On 17 June 2005, being a date more than six months after the s 29 notices were given, Ngaanyatjarra Council (Aboriginal Corporation) (‘Ngaanyatjarra Council’), on behalf of the native title party, made three applications pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed tenements (‘the s 35 applications’). The native title party requested that the future act determination be made by consent.
The s 35 applications were accompanied by documents entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’ for each of the proposed tenements. Except for reference to the specific tenements concerned these were written in identical terms and were subsequently executed by Mr Malcolm O'Dell, Gadens Lawyers and Geoff O'Halloran on behalf of the native title party, grantee party and Government party respectively:

‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)

1. The Government Party has complied with the requirements of s31(1)(a) of the Native Title Act 1993 (Cth).
2. The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s31(1)(b) of the Native Title Act 1993 (Cth).
3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s38 of the Native Title Act 1993 (Cth) that the “act” being the grant of [Prospecting Licence 53/986, Exploration Licence 53/814, Mining Lease 53/534] may be done.’

The Tribunal has the 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. Ngaanyatjarra Council is the designated representative body under the Act for the native title party. 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).
Paragraphs 10 of the s 35 applications advise the native title and grantee parties have previously reached an 'Area Agreement' that encompasses the area of the proposed tenements and ‘[a]s part of this Area Agreement, the Native Title Party has agreed to the grant to the Grantee Party, of mining and related tenements in the area covered by the Agreement.’ The application further states:
‘There are logistical difficulties in arranging for the Native Title Party to execute a State Deed and ancillary agreement in respect of each tenement sought by the Grantee party as contemplated by s.31(1)(b) of the Native Title Act. These logistical difficulties include arranging for travel for a solicitor from the Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to Wiluna, the time taken to arrange a meeting with the named applicants... and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.

As the result of the logistical and other difficulties referred to above, and because of the Native Title Party's obligation under the Area Agreement to expedite the grant of mining tenements, the Native Title Party has instructed the Ngaanyatjarra Council to bring these Applications.’

The inquiry

On 14 July 2005 the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr O'Dell, the native title party representative, advised he was satisfied that he had been properly instructed by the native title party to consent to the determination.
As the designated representative body under the Act, Ngaanyatjarra Council has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives and representative body on whether the appropriate consent has been given by the native title party.

Determination

By consent the determination of the Tribunal is that the acts, namely the grant of:

Prospecting Licence P53/986 and Exploration Licence E53/814 to Newmont Yandal Operations Pty Ltd (formerly Great Central Mines Ltd); and
Mining Lease M53/534 to Australian Metals Corporations Pty Ltd, Hunter Resources Pty Ltd and Eagle Mining Pty Ltd,

may be done.

Hon C J Sumner
Deputy President
14 July 2005