Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd
[2007] NNTTA 6
•16 January 2007
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 application’). The native title party requested that the future act determination be made by consent.
Appended to the application is a minute of a consent determination in the following terms, executed by Mr Malcolm O’Dell on behalf of the native title party, and subsequently by Ms Pauline Carr on behalf of the grantee party and Mr Jeff O'Halloran on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
2. The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Miscellaneous Licence 53/103 may be done.’
Paragraph 10 of the application states why a consent determination is sought:
"1. The negotiation parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native title Act 1993 (Cth) in respect of the future act.
2. The native title party consents to the proposed act being done, that is the grant of the Miscellaneous Licence 53/103 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Miscellaneous Licence 53/103 can therefore be granted in pursuance to the consent determination.
3. 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 on native title Claim Wiluna NNTT No WC99/24 (WG6164/98) and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health."
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 (Aboriginal Corporation) is the recognised 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).
The inquiry
On 15 January 2007 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Ms Katherine Hill of the Ngaanyatjarra Council, counsel for the native title party, advised she was satisfied that she had been properly instructed by the native title party to consent to the determination. She confirmed the matters set out in paragraph 10 of the application and subsequent to the hearing advised that two agreements (the Agincourt Land Access Agreement 2004 and the Agincourt Heritage Agreement 2004) had been negotiated and reached between the native title party and Wiluna Operations Ltd, a wholly owned subsidiary of Agincourt Resources Limited. Mr Neil Rankine of Agincourt Resources Ltd appeared for the grantee party on the basis that Wiluna Operations Ltd had an agreement with the grantee party for the transfer of the proposed licence to Wiluna Operations Ltd upon grant. Once transferred to Wiluna Operations Ltd, the licence will be covered by the Agincourt agreements.
Subsequent to the hearing Ms Hill also advised that the native title party, at the time of execution of the Agincourt agreements, had instructed Ngaanyatjarra Council to do all things reasonably required to ensure the grant of the tenements covered by the agreement (which following the grant and transfer will include L53/103) including where necessary to lodge a s 35 application. Ms Hill confirmed the matters set out in para 11 of the application, including that the Agincourt Heritage Agreement 2004 addresses to the satisfaction of the native title party any affect the future act will have on any areas or sites of particular significance to the native title party.
The Tribunal has previously accepted the logistical difficulties in obtaining signatures of the Wiluna applicants to a State Deed, referred to in para 10 of the application, as a legitimate basis for seeking a consent determination (see for example 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). I adopt the findings from para [9] of that determination in relation to the responsibilities of the Ngaanyatjarra Council (Aboriginal Corporation) as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Miscellaneous Licence L53/103 to Newmont Wiluna Gold Pty Ltd, may be done.
The Hon C J Sumner
Deputy President
16 January 2007
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