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Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/ Western Australia

Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/ Western Australia

Case [2005] NNTTA 47 14 July 2005

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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)

- and -

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)

- and -

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…

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/Newmont Yandal Operations Pty Ltd/ Western Australia [2005] NNTTA 47
Case: [2005] NNTTA 47
Decision Date: 14 July 2005

CaseChat Overview and Summary

The case before the Federal Court involved a dispute over the granting of mining, exploration, and prospecting licences on native title land in Western Australia. The applicants, including Wilma Freddie, sought a determination that would allow the grant of these licences, despite the named native title applicants not being signatories to the state deed. The existing regional agreement included a consent from the native title party, which was central to the applicants' case.

The legal issues at the heart of this case revolved around the interpretation and application of native title laws, specifically regarding the consent of non-signatory native title parties and the implications of regional agreements. The court needed to determine whether the consent of a non-signatory party, as outlined in a regional agreement, could suffice for the grant of mining and related licences, and if so, under what conditions and implications this consent held.

The Federal Court examined the relevant statutory provisions and case law, finding that the consent of the non-signatory native title party, as expressed through the regional agreement, was valid and binding. The court held that the consent provided a clear and sufficient basis for the determination that the future acts could proceed, taking into account the protections and rights of native title holders as per the Native Title Act 1993. Consequently, the court issued a consent determination allowing the granting of the mining, exploration, and prospecting licences as applied for.

Orders