Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd - [2007] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd, [2007] NNTTA 6 (16 January 2007)

Application No: WF06/84

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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The State of Western Australia (Government party)

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Newmont Wiluna Gold Pty Ltd (Grantee party)

FUTURE ACT DETERMINATION

Tribunal: The Hon C J Sumner, Deputy President

Place: Perth
Date: 16 January 2007

Catchwords: Native title – future act – application for determination for the grant of miscellaneous licence – named applicants not signed state deed – logistical difficulties – 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 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

Hearing date: 15 January 2007

Representative of the
grantee party: Mr Neil Rankine, Agincourt Resources Ltd

Counsel for the Ms Katherine Hill
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 6 October 1999, 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 miscellaneous licence L53/103 (‘the proposed licence’) under the Mining Act 1978 (WA) to Wiluna Gold Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure. Subsequently the name of the grantee party company was changed to Newmont Wiluna Gold Pty Ltd.
The proposed licence comprises an area of some 1066.9 hectares located 8 kilometres southeasterly 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 21 October 1999, the native title party lodged an objection to the expedited procedure statement with the Tribunal (WO99/885). On 9 June 2000, 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 that date.
On 20 December 2006, being a date more than six months after the s 29 notice was given, the native title party, made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the…

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/Western Australia/Newmont Wiluna Gold Pty Ltd [2007] NNTTA 6
Case: [2007] NNTTA 6
Decision Date: 16 January 2007

CaseChat Overview and Summary

In the case of Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd, the Federal Court was asked to determine whether a proposed future act could proceed under the Native Title Act 1993 (Cth). The applicants sought a determination for the grant of a miscellaneous licence to allow Newmont Wiluna Gold Pty Ltd to carry out certain activities on land subject to a native title claim. The named applicants who were party to the native title claim had not signed the state deed, and the court had to consider whether this affected the validity of the consent to the proposed future act.

The primary legal issue before the court was whether the proposed future act could proceed despite the logistical difficulties, including the absence of signatures from all named applicants on the state deed. A further issue was whether the execution of a heritage agreement by the grantee party and the consent of the native title party to the determination was sufficient to validate the consent to the future act. The court had to balance the procedural requirements of the Native Title Act against the practical realities of administering native title claims.

The court found that the logistical difficulties, including the absence of signatures from all named applicants, did not invalidate the consent to the future act. The execution of the heritage agreement and the consent of the native title party to the determination were sufficient to validate the consent. The court held that the consent determination that the act may be done was valid, and the proposed future act could proceed. The court emphasised the importance of practical outcomes and the need to balance procedural requirements with the realities of administering native title claims.

The final orders of the court were that the consent determination that the act may be done was valid and that the proposed future act could proceed. The court's decision provided guidance on the interpretation of the Native Title Act and the practical administration of native title claims. The decision highlighted the importance of considering the practical realities of administering native title claims and the need to balance procedural requirements with the need for practical outcomes.

Orders