Wongatha People (WC99/1); Wutha People (WC99/10) and Koara People (WC99/5)/State of Western Australia/Fredrick Andrei and Mindex Australia Pty Ltd

Case •

[2004] NNTTA 81

•

9 September 2004

NATIONAL NATIVE TITLE TRIBUNAL

Wongatha People (WC99/1); Wutha People (WC99/10) and Koara People (WC99/5)/State of Western Australia/Fredrick Andrei and Mindex Australia Pty Ltd, [2004] NNTTA 81 (9 September 2004)

Application: WF03/20

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

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Wongatha People (WC99/1) 1st Native Title party;
Koara People (WC99/5) 2nd Native Title party; and
Wutha People (WC99/10) 3rd Native Title party;

- and -

The State of Western Australia (Government party)

- and -

Fredrick Andrei and Mindex Australia Pty Ltd (Grantee parties)

FUTURE ACT DETERMINATION

Tribunal:                 Deputy President, The Hon. E.M. Franklyn QC
Place:   Perth
Date:   9 September 2004

Catchwords: Native title – future act – proposed grant of several prospecting licences overlapping the lands of each of the three native title parties- application under s 35 for consent determination – evidence and information provided inadequate for determination by consent – directions issued appropriate to determination on evidence and material provided t the Tribunal – State Deed that grants may be made, executed and lodged in respect of land the subject of 3rd Native Title party’s native title claim – determination that grants may be made in respect of the land the subject of the 1st and 2nd Native Title parties native title claims.

Legislation: Native Title Act 1993 (Cth), ss 28(1)(f), 29, 31(1)(a)(b), 35, 38, 39(1)(a)(b)(c)(d)(e)(f) and 203BC

Mining Act 1978 (WA), ss 20(5), 46A and 48
  Native Title Amendment Act 1988, Schedule5, Part 2, Item 4(3)
  Aboriginal Heritage Act 1979, ss 17 and 18

Cases:Western Australia v Ward [2002] 191ALR 1, paras 170-195

Hearing dates:          27 January 2004; 12 February 2004; 13 April 2004; 29 April 2004; 23 June 2004; 9 August 2004

Representatives of the

Wongatha People:          Ms Kathy Burns, Goldfields Land & Sea Council

Mr Dion Meredith, North East Independent Body

Mr Barrie Machin

Representative of the

Wutha and Koara

Peoples:Mr Michael Meegan, Goldfields Land and Sea Council

Counsel for the
Native Title Parties:       Mr Michael Meegan, Goldfields Land and Sea Council

Representative of the

Grantee Parties:             Mr Bill O’Donnell, Amalgamated Prospectors and Leaseholders Association of W.A. Inc; Mr Fredrick Andrei  

Representatives of the   

Government party:        Mr David Crabtree, Department of Industry and Resources; Mr Trevor Creewel, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

  1. On 1 April 1998, the Government party (“the State”) gave notice under s 29 of the Native Title Act 1993 (Cth) (“the Act”) of a future act namely the grant under the Mining Act 1978 (WA) of prospecting licences P37/5636; P37/5637; P37/5638 and P37/5639 (“the April prospecting licences”) to Fredrick Andrei and Mindex Australia Pty Ltd.

  2. On 18 June 1998, The State gave notice under s 29 of the Native Title Act 1993 (Cth) (“the Act”) of a future act namely the grant under the Mining Act 1978 (WA) of prospecting licences P37/5672; P37/5673; P37/5674; P37/5675; P37/5676; P37/5677; P37/5678 and P37/5679 (“the June prospecting licences”) to Fredrick Andrei and Mindex Australia Pty Ltd.

  3. The April and June prospecting licenses together are hereafter referred to as “the proposed tenements”

  4. The area, location, and percentage to which the Grantee party’s April prospecting licenses are overlapped by the currently registered native title claims are as follows:

    (a)   P37/5672 – 1.89 sq km, 38 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (b)   P37/5673 – 1.861 sq km, 40 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (c)   P37/5674 – 1.076 sq km, 41 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (d)   P37/5675 – 1.031 sq km, 40 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (e)   P37/5676 – 1.502 sq km, 41 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (f)    P37/5677 – 1.752 sq km, 41 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims;

    (g)   P37/5678 – 1.939 sq km, 41 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims; and

    (h)   P37/5679 – 1.46 sq km, 41 km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims.

  5. The area, location, and percentage to which the Grantee party’s June prospecting licenses are overlapped by the currently registered native title claims are as follows:

    (a)   P37/5636 – 1.972sq km 41km north east  of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/1) claims;

    (b)   P37/5637 – 1.919sq km 40km north east  of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12 & WC95/1) claims;

    (c)   P37/5638 – 1.621sq km 38km north east  of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12 & WC95/1) claims; and

    (d)   P37/5639 – 1.936sq km 38km north east of Leonora, 100% overlap with each of the Wongatha (WC99/1), Wutha (WC99/10) and Koara (WC95/12) claims.

  6. Three objections to the inclusion in the statement that each of the said grants attract the expedited procedure were lodged on the 20 May 1999, one by the Yulbarri Nomad group (WC97/4 later combined into the Wongatha claim WC99/11) which was, however, withdrawn on the 12 April 1999 and two by the Koara People in respect of registered native title claims WC95/1 and WC95/12.  Those objections were upheld, it being determined on the 13 December 1999 that the expedited procedure did not apply.

  7. The Koara people’s native title claim WC95/1 and WC95/12 were combined into the Koara people’s native title claim WC99/5 on 11 January 1994, the combined claim being registered on the 24 March 1999.  It was subsequently removed from the Register on the 29 August 2003.  The decision to remove that registration has been the subject of appeal, the decision on which has not yet been delivered.   Nevertheless, it is my opinion that pursuant to the transitional provisions of the Native Title Amendment Act 1998 (Schedule 5, Part 2, Item 4(3)), the Koara people’s right to negotiate is preserved in relation to each of the proposed tenements. The attitude of the State is that it is unclear whether the Koara people have a right to negotiate but for the purposes of its contentions the Koara are treated as having that right, without any concession that such right in fact exists.

  8. On the 13 November 2003 the Goldfields Land and Sea Council (GLSC), acting as representative of each of the Wongatha People (registered native title claim WC99/1), the Koara People (registered native title claim WC95/1) and the Wutha People (registered native title claim WC99/10), lodged an application pursuant to s 35 of the Act for a determination by consent that the acts, being of the grants of the proposed tenements to Mindex Australia Pty Ltd and Frederick Andrei (the Grantee), may each be done. The application was accompanied by a document entitled “Consent determination under s 38 of the Native Title Act 1993 (Cwlth)”. It sets out the names of the registered native title claimants in respect of each of the Native Title parties and is signed by Kathy Burns, Solicitor for the GLSC, on behalf of those claimants. That document concedes that the Government party has complied with the requirements of s 31(1)(a) of the Act, that each of them, the Government, the Grantee and the three native title parties, have complied with the requirements of s 31(1)(b) of the Act and expresses the unconditional consent of each of the said native title parties to the grant of each of the proposed tenements to the Grantee. The document names as the first Native Title party, Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Tomashisha Passmore on behalf of the Wongatha People (they being the registered native title claimants in native title claim WC99/1); as the second Native Title party, Richard Evans on behalf of the Koara People (he being one of the registered native title claimants in native title claim WC95/5 and the sole registered native title claimant in native title claim WC95/1) and, as the third Native Title party, June Ashwin, Ralph Edward Ashwin, Geoffrey Alfred Ashwin and Raymond William Ashwin on behalf of the Wutha People (they being the registered native title claimants in native title claim WC99/10).  The application states the applicants’ representative to be the GLSC and the registered Native Title Body Corporate of the first Native Title party to be the “North East Independent Body or NEIB”.  It is the case that the North East Independent Body, also known as NEIB, is not the registered Native Title Body Corporate for the first, or any of the three Native Title parties but is what has been described as “an umbrella” organisation established by the Wongatha People to manage their affairs.

  9. The said application as lodged on the 13 November 2003 was subsequently amended, the amended document being lodged with the Tribunal on the 10 December 2003. 

  10. Paragraphs 10, 11 and 12 of the s 35 application state as follows:

    10.  A statement that the parties have not been able to reach agreement about the act within 6 months of the notice being given.

    -     The applicant makes this application for determination, for and on behalf of the three Native Title Parties because of the difficulties of obtaining signatures of the 1st (Wongatha) and 2nd Native Title Party (Koara) on the state deeds relating to the said licences, the subject of this determination.  These difficulties relate to the limited resources available to facilitate collection of signatures.

    -     The 1st Native Title Party has consented to the proposed act being done, that is the grant of the licences pursuant to this consent determination.

    -     In relation to the Second native Title party, a State Deed could not be executed owing to there being limited resources available to facilitate collection of signatures.

    -     At a claimant meeting on 17 March 2003, the 2nd Native Title Party agreed to the proposed act being done, either by way of executing a state deed or by way of consent determination, if the Grantee Party agreed to protect their heritage. Mr. Bill O’Donnell from APLA originally representing the Grantee Party agreed to protect their heritage. Mr. O’Donnell completed a heritage survey over the area of the said licences with the 2nd Native Title Party. Mr. Bill O’Donnell agreed to create a buffer zone surrounding two rock outcrops identified on that survey by the 2nd Native Title Party with co-ordinates identified by GPS readings. (underlining added)

    -      Mr. Bill O’Donnell from APLA originally representing the Grantee Party has consulted extensively with the 3rd Native Title Party regarding carrying out a heritage survey.  This heritage survey was completed with the 3rd Native Title Party on 29 August 2003. The 3rd Native Title Party has executed a state deed regarding the licences the subject of this determination which was received by the DOIR on 13 November 2003.  The 3rd Native Title Party consents to the proposed act being done, given that their heritage will be protected.

    11.  A statement of the effect of the act on:

    a)    the enjoyment by the native title parties of their registered native title rights and interests; and

    b)    the way of life, culture and traditions of any of those parties; and

    c)     the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

    d)    the area or site, on the land or waters concerned, of the particular significance to the nave title parties in accordance with their traditions.

    The effect of the grant of P37/5672-9 and P37/5736-9, on native title is that the grant of the licences will not extinguish native title.  Any impact on native title will be minimised by the heritage surveys undertaken in consultation with the Native title parties, by Bill O'Donnell (APLA) (originally representing the Grantee Party). (underlining added)

    12.  A outline of the type of evidence that the applicant(s) will produce to show the effect of the act on the area of land.

    The applicant (representing the 1st, 2nd and 3rd Native Title Party)does not intend to submit any evidence to show the effect of the act on the area of land as they have reached agreement with the Grantee party for the act to be done subject to conditions to protect the claimant’s cultural heritage. (underlining added)

  11. On the 14 November 2003 a State Deed made pursuant to ss 28(1)(f) and 31(1)(b) of the Act executed by each of the State of Western Australia, the named registered native title claimants for the Wutha People and the grantee, providing that the acts, being the grant of the said proposed tenements to the grantee, may be done, was lodged with the Tribunal.

  12. A preliminary conference with the parties was held on the 27 January 2004 at which a number of issues pertinent to whether a consent determination should be made were identified. Of particular significance, having regard to the provisions of s 39 of the Act, were that, save for the agreement with the Wutha people referred to in para [11] hereof, there were no written agreements between the Native Title parties and the Grantees or, it appeared, any other enforceable agreement between them providing for heritage protection, despite the same being claimed in the application. It was also the case that, on the then information, if there were any enforceable oral agreement in respect of such protection, it would provide no protection to the Native Title party in event of the assignment of the proposed tenements by the grantee to a third party. I was also concerned as to whether the respective native title claimants consented to the applications with full knowledge that such was the position. The representative of the native title parties conceded that there had been no attempt to prepare or obtain the signatures to any agreement with the Grantee despite the reference in the application to difficulty in obtaining signatures from the first and second Native Title parties. Consequently I made directions as follows:

    (2)   On or before 10 February 2004 the native title party shall provide to the Tribunal and each other party further evidence or material relating to:

    (a)the terms and conditions of the agreement(s) said to have been made between the grantees and each native title party;

    (b)the means by which and from whom the consent of each of the native title parties to the respective agreement(s) and s.35 application was obtained, and the steps taken to obtain or attempt to obtain the respective consents;

    (c)the factors preventing execution of documents by the Wongatha People (first native title party) and Koara People (second native title party) formalizing the agreement(s) said to have been reached with the grantee parties.

    (3)   The terms of the proposed consent determination the subject of this application.

    (4) The facts justifying the statement in paragraph 10 of the s 35 application that “the 3rd Native Title Party consents to the proposed act being done given that their heritage will be protected.”

    (5)   The facts on which the representative body is satisfied that the native title holders understand and consent to this application given that there are no ancillary agreements executed between the grantees and any of the native title parties.

    (6) The facts giving rise to the conclusion that the respective native title parties have each given consent to the agreements said to have been made to this application in accordance with the provisions of s 203 BC of the Native Title Act.

    (7)   Parties are asked to note that:

    ·A copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.

    ·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal 8 February 2002 and in particular paragraph 3.16.4).

  13. Also at the conference on the 27 January 2004 a question was raised as to whether in fact the GLSC was still the authorised representative of the Wongatha and Koara people for the purposes of the application.  Ms. Burns stated that she had spoken with Mr. Aubrey Lynch, the Chairman of the NEIB, who is one of the Wongatha claimants in relation to the consent application, but provided no particulars of the discussion.  She maintained however that the GLSC was the authorised representative of the Wongatha people, which had authorised the consent application that the act be done at a meeting “early last year” and remained the authorised representative.  She provided no information as to the terms or conditions of the authorised consent, despite advising that meetings were held with the Wongatha people every three months.  She gave no explanation as to the process by which the consent or authorisation of the Koara people had been given and no evidence of the agreement by the Grantee alleged in the application “to protect their heritage”.  The Grantee however, provided a letter from Mr Andrei dated 13 January 2004 stating that he was involved in the preparation of and attended the field surveys of both the second and third native title parties.  As to the Koara people, it stated that the field survey was conducted on the 3 April 2003 of the land the subject of the proposed prospecting licence, with four representatives of the Koara people, he acting as guide.  He stated that the Koara people indicated two small hills which might contain ochre and he and Mr O’Donnell agreed not to disturb the same and to identify the location and create a buffer zone around them.  The letter asserts that “the native title parties have indicated by the signing of documents that the grant of these tenements can proceed”.  Under cover of an undated letter that was received by the Tribunal on the 14 January 2003, Mr O’Donnell for the grantee, enclosed a photocopy of a letter, said in the covering letter to have been sent to GLSC and returned with the signatures of the “survey team” endorsed thereon.  The photocopy letter was addressed to the GLSC for “Attention Ms Burns” and stated that following a meeting of the Koara convened by the GLSC, four Koara people (named) were chosen by the group to carry out a heritage survey of the proposed tenements; that on the 3 April 2003 over the course of one day, the tenements were visited and “areas of intended ground disturbance were shown to the Koara team”; that on P37/5679 the Koara team leader (named) commented on an area of two rock formations showing signs of use as a source of ochre by traditional people.  These rock formations were not near the intended works programme area, but it was agreed that the area be recorded and the “stand off” area surrounding it be documented.  The letter provides GPS readings to identify these areas and says it was agreed that they be not the subject of “ground disturbance”.  The letter also says that at the conclusion of the heritage survey of the tenements “all other areas indicated were cleared for the prospector to proceed with his work programme as allowed by the Notice of Intent – Low Impact Mining Operation allowed by the DOIR”.  The letter concludes with a statement that members of the Koara survey party will sign at the foot of the letter as confirmation that the contents of the letter are a true record and that they were paid $300 each for their services for the day.  The signatures for the four named persons appear thereon under Mr O’Donnell’s signature to the letter.  It is of some concern that according to that letter, the survey was not of the whole of the areas of the proposed tenements, but only of those areas the subject of then presently intended ground disturbance. 

  1. At the conclusion of the conference on the 27 January 2004 I issued directions to be complied with by the first and second native title parties to clarify the above mentioned matters.  In brief, the relevant response to the directions received from the GLSC (excluding those referring to the Wutha people) dated 9 February 2004, were as follows:

    1.   The GLSC was not at liberty to disclose the detail of the agreements between the native title parties and the Grantee, beyond that they dealt with heritage survey.

    2.   The GLSC was authorised by the Wongatha people to consent to the application on the 18 March 2003 by the Chairman of NEIB and that the NEIB is authorised by the Wongatha people to deal with tenement applications, negotiations, heritage and other matters.  At the time of the consent, the policy of the Wongatha people was to consent to prospecting areas in their claim area.

    3.   The GLSC were authorised by the Koara people at a Koara claimant’s meeting on the 17 March 2003, to apply by way of consent determination for the grant of the tenement if the Grantee agreed to the Koara heritage proposal.  The GLSC on the 18 March 2003, wrote to Mr O’Donnell seeking such agreement.  The heritage proposal is confidential but provided for the Grantee to conduct an initial site inspection with the Koara people and, depending on what was then identified by the Koara, the Grantee could “proceed to grant or would have to conduct a formal heritage survey”.  This was agreed to by Mr O’Donnell by letter dated 20 March 2003 and the GLSC was “thereby authorised to pursue this consent determination as per the claimant meeting of the 17 March 2003”.  A heritage survey was conducted on the 3 April 2003 with a Koara heritage team and Mr O’Donnell agreed in correspondence to GLSC to protect, by way of “stand off”, two sites identified by the team.

    4.   The factors preventing execution of State Deeds for the first and second Native Title party relate to the cumbersome process imposed on Aboriginal people and the lack of financial and human resources available to track down all applicants.

    5. The GLSC is satisfied on the basis of the information provided in its responses that the native title parties understand and consent to this application for the grant of the proposed tenements and have given their consent in accordance with the provisions of s 203 BC of the Act.

  2. At a further conference held on the 12 February 2004, I advised the parties that in my view the information provided did not lead to a conclusion that the first and/or second Native Title party understood and consented to a determination which does not protect its respective heritage. I pointed out that the claim of confidentiality leaves unanswered the serious question relevant to s 39 of the Act, i.e. how is the heritage of the Wongatha people and/or the Koara people protected by the consent determination in the absence of evidence of an enforceable agreement which would bind the Grantee and its assignees. It was then agreed by Ms Burns for the Wongatha and Koara people and Mr O’Donnell for the Grantee, that they would confer with a view to formalising a heritage protection agreement between those native title parties and the Grantee and executing an ancillary agreement in respect thereof. It was suggested that in the alterative Ms Burns provide an affidavit testifying to the authority given to the Koara heritage team in respect the site survey undertaken on the 3 April 2003, and in particular whether they had authority to “clear land” not inspected to enable the Grantee to proceed with exploration work thereon, that the GLSC was satisfied that those people understood and accepted that the survey work undertaken, whilst preliminary and of only limited areas of the proposed tenements, could clear the way for an unconditional determination that the tenements may be granted and that they understood that the consent determination would be unconditional and, in the absence of an enforceable agreement, would provide no heritage protection beyond that provided by the Aboriginal Heritage Act.

  3. On the 4 March 2004 the Tribunal received advice from GLSC that it relied on its said  responses to the directions of 27 January 2004.

  4. On the 8 March 2004 the Tribunal case manager was contacted by Mr Dion Meredith of NEIB, advising that the Grantee had contacted him about negotiating an agreement with the Wongatha people, that he was unaware of the claim for a consent determination and that the GLSC did not represent the Wongatha in future act matters.

  5. A further conference was convened on the 13April 2004, the NEIB being notified as representing the Wongatha people.  There was no appearance on behalf of the Wongatha people.  Mr De Villiers a Solicitor from the GLSC appeared for the Koara people.  He relied on the earlier submissions of the GLSC seeking a consent determination.  His submission was rejected.  The matter was relisted for 29 April 2004 to enable the Wongatha representative to be heard.

  6. On the 29 April 2004 the Tribunal received from the GLSC a letter dated 27 April signed by Mr Aubrey Lynch as “Elder and Coordinator, NEIB Heritage Committee”, which stated that the NEIB was satisfied that “the Wongatha heritage concerns” in respect of the tenements had been addressed and supported the grant of the tenements by consent determination.  Further that it had instructed GLSC when the tenements were advertised not to object to the grant, that it is supportive of the consent determination sought and has instructed GLSC to convey those views to the Tribunal at the hearing on 29 April 2004.

  7. At the hearing on the 29 April 2004 Mr Meegan, Solicitor of the GLSC, appeared for the Koara People and announced that he appeared also for the Wongatha People on instructions from NEIB. He read out a copy of the letter referred to in para [19] hereof. Mr Dion Meredith of NEIB also attended the hearing by telephone and advised that the NEIB and not the GLSC represented Wongatha. He stated that he had met the Grantee’s representative prior to the hearing and had discussions with him relative to the Grantee entering into a heritage agreement and that the NEIB for the Wongatha people did not agree to an unconditional consent determination that the tenements may be granted. The Grantee advised that if it could not reach agreement with the Wongatha and if the Koara People did not confirm that the survey team had authority to ‘clear’ the land which was not the subject of the said site survey, it would consider a s 35 application. Mr Meegan submitted that the information presented in Ms Burns earlier submission (in response to Directions) was sufficient to establish the Koara People’s consent and that he would lodge further submissions as to the GLSC’s position in relation to the Wongatha People. The hearing was adjourned to the 27 May 2004.

  8. On the 24 May 2004, a submission was received from GLSC advising that it had no further instructions from the Wongatha People or the NEIB. As to the Koara People, it essentially reiterated the material contained in previous submissions regarding the process by which the native title consent to the grant of tenements and the s 35 application was obtained. Appended to the submission was a copy of a letter from Mr Fredrick Andrei dated 20 May 2004 that confirmed that on the 3 April 2003 “during a site visit to” the proposed tenements, he took four members of the Koara People “to a number of areas on each and agreed to a work program with them” as allowed by the Notice of Intent authorised by the DOIR. He stated it was also agreed that Aboriginal Heritage Protection would be observed “on all other areas”. The letter also referred to the two areas of rock outcrop and stand-off area identified and recorded and referred to earlier herein in the letter from Mr O’Donnell. The letter also stated that “the purchaser, taker of an option, assignee or transferee must enter into a Deed of Covenant to observe the agreed obligation of the Grantee”. A copy of this letter had been forwarded separately to the Tribunal on the same date. The hearing scheduled for the 27 May 2004 was then vacated to allow the submissions by the parties to be considered and time for an agreement to be concluded between the Grantee and the Wongatha People.

  9. The matter was reconvened on 23 June 2004. Mr B. Machin of NEIB appeared for Wongatha, advising that Mr Meredith was out of the State. No agreement had been reached by the Wongatha people and the Grantee. Mr Meegan advised that the written and oral submissions earlier made on behalf of the Koara people contained the extent of his instructions in this matter. I advised the parties that I was not satisfied that the determination sought adequately protected the rights and interests of the first and second native title parties. I stated that in my view no adequate evidence of their informed consent had been provided, that the evidence did not reveal the existence of any enforceable agreement either against the Grantee or its assigns nor established the authority of the Koara survey team to agree to clear, for prospecting, land which had not been the subject of any survey. It was of concern that the survey of 3 April 2003 was only of selected areas of the tenement land. I indicated that I was of the opinion that the current application should be dismissed. Mr Trevor Creewel, State Solicitor’s Office, submitted that it might be possible to treat the application as though it were one for a determination other than by consent. He suggested that the parties could then submit evidence addressing the criteria outlined in s 39 of the Act and that I might make orders that the parties file submissions similar to the programming orders made in contested s 35 applications. The Grantee and the other parties were agreeable to this proposal and that was the procedure I advised I would adopt. I pointed out that negotiations for an agreement between the Grantee and Wongatha could proceed up until determination. Mr Meegan advised that the GLSC on behalf of the Koara people might not submit anything further. I advised that new directions would be issued and that, as there appeared to be a continuing issue regarding representation of the Wongatha People, I would require native title parties to confirm details of their representation for the purposes of this inquiry.

  10. The new Directions were duly issued on 24 June 2004 in the following terms:

    1. On or before 30 June 2004 each of the native title parties is to lodge with the Tribunal, and serve on the other parties, written confirmation of its representation and address for service in this matter.

    2. On or before 19 July 2004 the Government party is to provide to the Tribunal, the grantee and native title parties:

    (a)a statement of contentions, in particular addressing the criteria relevant to them in s 39 of the Native Title Act 1993.

    (b)a list of all documents or evidence intended to be produced (with copies of the documents being made available to the Tribunal and, where practicable, to the other parties).

    Documents are to include:

    (i)   details of recorded sites kept on the Register under the provisions of the Aboriginal Heritage Act;

    (ii)    details of the current land tenure and mining tenure in the vicinity of the land;

    (iii)  copies of the current land tenure and mining tenure title documentation in the vicinity of the land; and

    (iv)   where possible, a topographical map of the area of a scale 1: 100,000 identifying the location of the proposed prospecting licenses and the other tenements in their vicinity, marked on it.

    (c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.

    3. On or before 26 July 2004 the grantee party is to provide to the Tribunal, the Government and native title parties:

    (a)a statement of contentions, in particular addressing the criteria relevant to them in s 39 of the Native Title Act 1993.

    (b)a list of all documents or evidence intended to be produced (with copies of the documents being made available to the Tribunal and, where practicable, to the other parties).

    (c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.

    4. On or before 2 August 2004 the native title party is to provide to the Tribunal, the Government party and the grantee party:

    (a)a statement of the effect (if any) of the grant of the proposed prospecting licenses upon the following matters (referred to in section 39(1)(a) of the Native Title Act 1993):

    (i)   the enjoyment by the native title party of their registered native title rights and interests;

    (ii)    the way of life, culture and traditions of the native title party;

    (iii)  the development of the social, cultural and economic structures of the native title party;

    (iv)   the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted on the land or waters in accordance with their traditions; and

    (v)    any area or site on the land or waters concerned of particular significance to the native title party in accordance with their traditions.

    (b)a statement of the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the native title party that will be affected (s 39(1)(b));

    (c)a statement of whether the native title party contends that any of the matters referred to in section 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the native title party’s contentions in relation to each of those matters;

    (d)contentions on whether the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation;

    (e)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers;

    (f)a list of the documentary evidence intended to be produced in relation to the matters referred to in paragraphs (a) to (d) above (with copies of documents being made available to the Tribunal) - where practicable copies of documents should be made available to the other parties;  and

    (g)where there is an issue relating to the confidentiality of documents or evidence and whether evidence will need to be given in restricted circumstances, a statement of the nature of the documents and evidence and the proposed arrangements for the hearing of the evidence.

    5. The Parties’ attention is drawn to Paragraph 5.10 of the Procedures under the Right to Negotiate Scheme and in particular to Paragraph 5.10.8.  As far as practicable the parties are to provide evidence (including witness statements) in documentary form.

    6. A hearing will be held on 9 August 2004. At the hearing the parties should be prepared to report on:

    (a)any agreements relating to the issues before the inquiry, the facts and documents to be relied on;

    (b)procedures for its conduct, including the need for confidentiality, interpreters, or any other special arrangements; and

    (c)an agreed list of exhibits to be tendered at the inquiry.

    7. Liberty is given to apply to vary these directions or for a re-listing of this hearing.

  11. On 28 June 2004 the GLSC confirmed that it represented the Koara and Wutha People in relation to the s 35 application and provided its address for service. It made no claim to represent the Wongatha people. There was still no compliance with direction 1 by the NEIB or any other person or body on behalf of the Wongatha People. The State complied with direction 2 on the 27 July 2004 and the Grantee complied with direction 3 on the 26 July 2004. There was no compliance with direction 4 by either the Wongatha or Koara People.

  12. At the hearing on 9 August 2004 all parties were represented. Mr Meegan informed the Tribunal that GLSC would make no further submissions and would rely on the submissions made earlier. Mr Dion Meredith represented the Wongatha people. I pointed out to him that there had been no compliance by the Wongatha people with either Direction 1 or direction 4 of the directions of 24 June 2004. He advised he had been out of the State and had had no opportunity to do anything to comply. He confirmed again that NEIB represented the Wongatha people. He agreed that NEIB, on behalf of Wongatha, could comply with the directions of 24 June on or before 23 August 2004 and accepted that if the NEIB had not done so by that date, I would proceed to make a s 35 determination on the material then before me and that, save for exceptional circumstances, no further extension of time would be granted. He said he would also continue to seek a Heritage Protection Agreement with the Grantee. I emphasised that whether or not he might seek such an agreement, the deadline for compliance with the directions of 24 June was the 23 August 2004 following which, in the absence of some compelling reason to the contrary, I would proceed to make a determination on the papers and material before me. He accepted that such would be the case.

  13. On 10 August 2004 I issued formal directions requiring compliance by the Wongatha people, on or before 23 August 2004, of direction 4 of the directions of 24 June 2004, copies being delivered personally to Mr Dion Meredith and sent to NEIB by both Email and post.  On 20 August 2004 a reminder letter was sent to NEIB.  By Email in response dated 23 August 2004, Mr Meredith advised the Tribunal as follows:

    “I am replying to your fax dated 20 August 2004 regarding the s 35 application for WF03/20.

    The Wongatha people (WC99/1 of the native title party), do not wish to proceed with the s35 and we are withdrawing our objections and we have spoken to the other party in this matter, Mr F Andrei.

    Regards
    Dion Meredith

    NEIB Negotiation Convenor”

There was no compliance with the direction of 10 August 2004 and no request for any further extension of time.

  1. I am satisfied that this matter can be adequately determined on the evidence and other material before the Tribunal without holding a hearing. 

Material provided by the State

  1. The material provided by the State reveals there to be no other mining tenement and no native title site registered under the provisions of the Aboriginal Heritage Act 1972, on or in the vicinity of the proposed licences. It further reveals that the proposed licences are wholly within the land subject of pastoral lease 3114/1268 commencing 10 August 1992, held by Anaconda Pastoral Holdings Pty Ltd and pastoral lease 3114/1181 commencing 17 June 1983, held by Higherealm Pty Ltd and were previously wholly within the land the subject of pastoral lease 395/489 from 1 January 1934 to 31 December 1948. The material draws attention to:

    (a) the provisions of s 48 of the Mining Act 1978 (WA) which sets our the rights conferred by a prospecting licence subject to any conditions imposed on the licence;

    (b) Section 46 of the Mining Act which imposes statutory conditions on the grant of a prospecting licence requiring the grantee to report to the Minister the discovery of any minerals of economic interest found on the land the subject of the licence, to fill in and make safe all holes, pits, trenches and other disturbances to the surface of the land the subject of the same made whilst prospecting and which, in the opinion of the State mining engineer, are likely to endanger the safety of any person or animal and to prevent fire damage to trees or other property and prevent damage to any property or livestock;

    (c) Section 46A of the Mining Act which provides that the Minister may impose conditions for the purpose of preventing, reducing or making good injury to the surface of the land the subject of the licence and consequential damage to other land. A copy of the standard conditions imposed under s 46A of the grant was lodged with the Tribunal and served on the other parties by the State which document contains an endorsement drawing the parties attention to the provision of the Aboriginal Heritage Act 1972;

    (d) Section 20 (5) of the Mining Act (which applies to the pastoral leases of land within the proposed tenements) which provides that the holder of a mining tenement is not entitled to prospect, fossick on, explore, mine on or otherwise interfere with Crown land which is within the there specified distances of the land the subject of any one of specified uses on Crown land, without the written consent of the occupier unless a warden otherwise directs or orders, or, in the case of mining, is carried out at least 30 meters below the lowest part of the surface of the land.

    (e)   The State’s submissions also draw specific attention to the provisions of the Aboriginal Heritage Act 1972 (WA) and in particular ss 17 and 18 which makes it an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site or any object under or on an Aboriginal site without the consent of the Minister of Aboriginal Affairs.

  1. The State contends that the pastoral leases which overlap the proposed tenements have had the effect of extinguishing the exclusivity of any native title in the areas thereof and of controlling access to, and the use of, the pastoral lease land.  With this submission I agree (see Western Australia v Ward [2002] 191ALR 1, paras 170-195).

Material provided by the Grantee

  1. The material provided by the Grantee is extensive, comprising contentions with copies of diary minutes covering the period July 1998 to July 2004 and documents referred to in the contentions and diary minutes.  Whilst I do not dispute the accuracy of the diary minutes, the accuracy of what is there recorded is not supported by any affidavit, although the documentation provided, which covers the same period, provides support for much of the same.  Suffice it to say however that that material provides evidence of extensive negotiations between the Grantee and the three native title parties directed to some form of Heritage Protection Agreement and failure in respect of those negotiations with the Wongatha people.  That failure is clearly due to lack of agreement on certain provisions required by the Native Title party.  There are also written expressions by the Grantee of its awareness of the provisions of the Aboriginal Heritage Act and its willingness to abide by it. 

As to the Koara people, correspondence between the GLSC and the Grantee provided by the Grantee (but not by the GLSC) reveals that, on 18 March 2003 pursuant to authority given to it at a meeting of the Koara people, the GLSC, by letter signed by Ms Burns, proposed to the Grantee that 3-4 Koara people make an initial inspection of the area of the tenements and that “if on that initial inspection the Koara people indicate it is fine to go ahead, they will indicate this to you”, but that if on that inspection they consider a heritage survey is required, such a survey will be required including an anthropologist and a written survey report.  A map of “the survey area” prior to the site inspection, clearly identifying the tenements, was also required.  By letter dated 20 March 2003 the Grantee accepted that proposal.  Regrettably that correspondence was not produced in support of the consent application sought by the GLSC.  It has relevance to the Koara survey referred to in the correspondence produced by the Grantee and referred to in para [13] hereof and would have been helpful, if then produced, on behalf of the Koara people consent application.

The Wongatha People’s material

  1. The Wongatha people have elected to provide no contentions and no evidentiary material. There is no evidence of any use by them of the land the subject of the proposed tenements and no evidence of any place or site within the meaning of Section 5 of the Aboriginal Heritage Act on such land. I agree with the submission made by the State that the history of this matter and the s 35 application for a consent determination shows clearly that the Wongatha agreed in principle to the grant of the proposed tenements being made. It is clear that, to this end, on 12 April 1999 they withdrew their objections to the grant of the tenements pursuant to the expedited procedure provisions of the Act, as referred to in para [5] hereof. It was only late in the piece, when the representation of Wongatha was changed from GLSC to NEIB, that it became clear that the Wongatha people, through NEIB, were then requesting a written heritage protection agreement, Mr Meredith advising that the Wongatha people were not prepared to proceed with a consent application and wished to negotiate an agreement. In my opinion the only reasonable inference that can be drawn from Mr Meredith’s communication of 23 August 2004 quoted in para [26] hereof, is that the Wongatha people have since elected not to oppose the grant of the tenements despite the fact there is no written Heritage Protection Agreement and are prepared to rely on the Grantee’s assurance that it will respect the Wongatha people’s heritage and will abide by the provisions of the Aboriginal Heritage Act.

The Koara People’s material

  1. On 24 May 2004 the GLSC represented by its Solicitor, Mr Michael Meegan, lodged submissions, signed by Mr Meegan, confirming its instructions to consent to the grant of each of the proposed tenements. The submissions stated that the authority to consent was given at a meeting of the Koara people on 17 March 2003 conducted in accordance with s 203BC of the Act. The submissions further stated that the authority was given against a background of procedure that, on some occasions, an ancillary agreement is negotiated based on standard provisions for heritage protection, and on other occasions, depending on the proposed level of activity of the proposed Grantee on the relevant land, the Koara would rely on the provisions of the Aboriginal Heritage Act with awareness that the Act binds not only the Grantee but also its assigns. It states that the survey was conducted and no report was secured from the survey team that any further heritage survey was required. The submission also explains the difficulties in obtaining a State Deed that the grants may be made arising out of the States reservations as to the Koara people's right to negotiate. As previously stated the Koara people made no further submissions and did not comply with the directions issued on 24 June 2004 and, on 12 August 2004, advised the Tribunal that they would not lodge further submissions. I am satisfied from the history of the these proceedings and from the material provided by the Koara people and the Grantee that the Koara people consent to the grant of the proposed tenements to the extent that they overlap land the subject of the Koara native title claims and are prepared to rely on observance by the Grantee of the provisions of the Aboriginal Heritage Act.

  2. I turn now to s 39 of the Act.

    (a) Section 39(1)(a) – Neither the Wongatha nor the Koara people have made any claim or provided any evidence in respect to the land the subject of the proposed tenements suggesting that any of the matters referred to in s 39(1)(a) will be adversely affected by the proposed grants. There are no submissions or evidence in respect of such land of any claim by either Native Title party to the enjoyment thereon of any registered native title rights or interests, of their way of life, culture and tradition, or the development of social, cultural and economic structures. Nor is there any submission or statement in respect of the conduct of rights, ceremonies or other activities on the same or of any area or site thereon of particular significance in accordance with their traditions. The conclusion that they consider that the grant of the proposed tenements will not have any adverse effect on the lands the subject of the proposed tenements is supported by the evidence of their respective agreement in principle to the grant and preparedness to seek an unconditional consent determination and sign a consent thereto. It is also consistent with their withdrawal of the objection to the expedited procedure grant of the tenements on the 12 April 1999 and by their election, despite reminders, to not comply with the Directions of the 24 June 2004 which provided for them to provide (inter alia) statements in respect of each of the matters referred to in s 39. That they do not perceive any adverse effect is also supported by the fact that they do not have exclusive right of access to or control of the said land by reason of the same being on pastoral leasehold land and that their right of access to it will not be lessened by the grant of the proposed tenements as prospecting licences do not confer an exclusive right of possession.

    (b) Section 31(1)(b) – There have been no expressions or statements on behalf of the Wongatha people as to their interests, proposals, opinions or wishes in respect of the matters referred to in s 39(1)(b) save, their application by the GLSC as their representative for a consent determination, the subsequent expression by the NEIB on behalf of the Wongatha people of a wish to have a Heritage Protection agreement executed by the Grantee, the inferential acceptance by the Wongatha people that no such agreement could be realised and the further inferential acceptance that the grants should nevertheless be made evidenced by the election not to comply with the directions of the 24 June 2004 apparent in Mr Meredith’s letter of 23 August 2004 (see para [26] hereof) in reply to the Tribunal’s reminder to the Wongatha people of the date for their compliance with such directions.

    (c) Section 39(1)(c)(d)(e) – As suggested by the State in its submissions I adopt the following findings of the Tribunal in WF96/3 Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (the Hon C J Sumner, Ms P O’Neil, and Mr G Neate) dated 17 July 19996 as follows:

    (a)Western Australia dominates Australia’s mineral and energy investment, exploration and production;

    (b)the continuing development of productive mining depends on the discovery of new mineral reserves;

    (c)mining in general is significant to the Australian and Western Australian economies; and

    (d)the public interest is served by the maintenance of an active minerals exploration programme and the continuing development of the mining industry.

    (d) Section 39(1)(f) – No specific “other matter” has emerged from the submissions and evidence but the State suggests that the effect of the act on the environment may be a relevant factor. It submits that the standard conditions imposed by s 46A on the grant of the prospecting licences are sufficient to minimise any effect on the natural environment. With that proposition I agree.

  3. Determination

Taking into account the State Deed entered into by the Wutha people, the State and the Grantee that the proposed tenements may be granted in so far as they overlap the lands the subject of the Wutha native title claim the determination of the Tribunal is that the act being the grant of each of the prospecting licences under the Mining Act 1978 (WA) numbered 37/5736, 37/5737, 37/5738, 37/5739, 37/5672, 37/5673, 37/5674, 37/5675, 37/5676, 37/5677, 37/5678 and 37/5679, may be done.

The Hon. E M Franklyn QC
Deputy President
9 September 2004

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