Wongatha People/Gutnick Resources NL/Western Australia

[2003] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Wongatha People/Gutnick Resources NL/Western Australia, [2003] NNTTA 30 (17 February 2003)

Application No:        WF03/4

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

Wongatha People - WC99/1 (Applicant/Native Title Party)

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Gutnick Resources NL (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:  17 February 2003

Catchwords:    Native title - future act - application for determination for the grant of exploration licence and prospecting licences - consent determination that the acts may be done.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Date:                 17 February 2003

Counsel for the               

Native Title Party:          Ms Kathy Burns, Goldfields Land and Sea Council

Representative of the

Grantee Party:                Ms Lisa Bowyer, Axis Consultants Pty Ltd

Counsel for the

Government Party          Mr Trevor Creewel, Crown Solicitor’s Office

Representative of the

Government Party:        Mr Nicholas Hort, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On or before 17 September 1997, 10 March 1998 and 16 June 1998 the State of Western Australia (‘the Government Party’) respectively gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant under the Mining Act 1978 (WA) of prospecting licence P31/1558, P31/1567 and E39/701 to Mount Kersey Mining NL (‘the grantee party’).

2. The Native Title Party in respect of these proceedings is the Wongatha People (WC99/1).

3. On 5 February 2003, 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 of the Act in relation to prospecting licences P31/1558, P31/1567 and exploration licence E39/701. The application sought a determination by consent of all parties. The National Native Title Tribunal (‘the Tribunal’) has 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. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

4. On 13 February 2003, the Government Party submitted a copy of the Australian Securities and Investment Commission Certificate of Registration on Change of Name, certifying on 10 May 1999 Mt Kersey Mining NL changed its name to Gutnick Resources NL.

5. On 17 February, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future acts may be done in terms of the minute submitted jointly by Ms Kathy Burns, a solicitor with the Goldfields Land and Sea Council for the Native Title Party, Mr Trevor Creewel of the Crown Solicitor’s Office for the Government Party, and by Ms Lisa Bowyer of Axis Consultants Pty Ltd for the Grantee Party. The Goldfields Land and Sea Council is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Wongatha native title claim.

1. The minute is in the following terms:

   ‘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 Grantee Party and the Native Title Parties have complied with the requirements of s 31(b) of the Native Title Act 1993.

   3. The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of prospecting licences 31/1558, 31/1567 and exploration licence 39/701 may be done.’

2. Paragraph 10 of the s 35 Application says:

   ‘The respective licences already stated here, form part of a Pilot Project Agreement (referred to here as the “Agreement”) between several Grantee Parties including Gutnick Resources NL and the NEIB (North East Independent Body Aboriginal Corporation) on behalf of the Wongatha People.

   Gutnick Resources NL and the NEIB have executed the Agreement.

   The Agreement allows for large-scale heritage surveys over some of the Native Title Party’s Claim Area as a way of reducing the backlog of tenement applications made to the Department of Mineral and Petroleum Resources within the Native Title Party’s Claim Area.

   As part of this Agreement, the Native Title Party agrees to withdraw any objections lodged to any of the tenement application by them, seven days after the Grantee Party signs the Agreement.

   Given that the Grantee Party and the NEIB have executed this Agreement, initially State deeds were to be executed to remove the objections to them as the respective licences are in the Right to Negotiate process.

   Given the difficulty previously experienced, in obtaining signatures and the limited resources of the GLSC at the present time due to the Wongatha Native Title Determination proceedings, the NEIB has authorised the GLSC to expedite the grant of the respective licences under the Agreement through seeking this determination.

   The Native Title Party, thereby consents to the proposed act being done, that is the grant of the respective licence(s) pursuant to this consent determination, given that:

   ·the Grantee Party and Native Title Party have executed the Agreement; and

   ·that heritage surveys have been done over the respective exploration licences as part of this Agreement to address the heritage concerns of the Native Title Party.’

3. I find that the facts set out in paragraph 10 of the s 35 application are established and am satisfied that the Native Title Party as a group consent to the determination in the terms set out in the above minute. The Native Title Party has been represented in this matter throughout by the Goldfields Land and Sea Council and Ms Burns confirmed at the hearing that the claim group consents to the determination. Any effect of the future act on native title (s 39(1)(a)(i) of the Act) and sites of particular significance to the native title party (s 39(1)(a)(v)) will be minimised by the heritage survey.

Determination

1. The determination of the Tribunal is that the acts, being the grant of prospecting licences P31/1558, P31/1567 and exploration licence E39/701 to Gutnick Resources NL (formerly Mt Kersey Mining NL) can be done.

Hon C. J. Sumner
Deputy President

17 February 2003