Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew/Linda Champion and Others on behalf of..
[2006] NNTTA 2
•25 January 2006
NATIONAL NATIVE TITLE TRIBUNAL
Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew/Linda Champion and Others on behalf of the Central West Goldfields People/Western Australia, [2006] NNTTA 2 (25 January 2006)
Application No: WF06/2
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
Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew (Applicant/grantee party)
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Linda Champion and Others on behalf of the Central West Goldfields People (WC99/29) (native title 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: 25 January 2006
Catchwords: Native title – future act – application for determination for the grant of mining lease – partially executed ancillary agreement and State Deed - native title party as a whole consent to the determination – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38
Cases:Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner
Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004), Hon C J Sumner
Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velickovic and Others on behalf of the Widji People/Bryan William Alexander/Western Australia, WF04/18, [2004] NNTTA 77 (2 September 2004), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375
Hearing date: 25 January 2006
Representative of the
native title party: Ms Elizabeth Sambo
Representative of the
grantee party: Mr Bryan Alexander, Archaean Exploration Services Pty Ltd
Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 16 October 2002, 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 Mining Lease M77/846 under the Mining Act 1978 (WA) to Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew (‘the grantee party’).
The native title party with respect to these proceedings is:
· Carlene Sceghi, Dennis Sambo, Dorothy Dimer, Elizabeth Sambo, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper on behalf of the Central West Goldfields People (WC99/29) (‘the native title party’).
The proposed lease comprises an area of some 37.5 hectares, 59 kilometres northerly of Bullfinch in the Shire of Yilgarn, and is overlapped entirely by the registered claim of the native title party.
At the time of s 29 notification the native title claim of the Ballardong People (WC97/56) was also registered and therefore accorded the same procedural rights as those enjoyed by the Central West Goldfields People. However, that claim was combined with Ballardong claim WC00/7 on 5 July 2000, and on 11 May 2005 the combined Ballardong claim WC00/7 failed the registration test. As a consequence pre-combination WC97/56 has been deregistered and the Ballardong People no longer have procedural rights in relation to the proposed lease.
On 3 January 2006, being a date more than six months after the s 29 notice was given, Bryan William Alexander, sole director of Archaean Exploration Services Pty Ltd, made an application pursuant to s 35 of the Act for a future act determination under s 38. Mr Alexander subsequently clarified in writing that the application was made on behalf of each of the persons or companies comprising the grantee party and that he has authorisation to act on their behalf.
Appended to the s 35 determination application is a minute of a consent determination in the following terms, which has since been executed in counterparts by Ms Elizabeth Sambo on behalf of the native title party, Mr Bryan Alexander on behalf of the grantee party, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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 Mining Lease Application 77/846 may be done.’
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. However, the absence of legal representation does not preclude a consent determination being made provided the Tribunal is satisfied that the native title party has properly consented. 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).
Background facts
As a consequence of negotiations between the parties including Tribunal mediation assistance pursuant to s 31(3) of the Act the following facts are established.
Seven out of eight of the persons comprising the applicant, registered native title claimant and native title party have signed a modified production agreement (‘ancillary agreement’) in a format provided to the grantee party by the Goldfields Land and Sea Council, which represents the Central West Goldfields People for business in relation to their native title claim but not in relation to future acts. The ancillary agreement provides that parties agree to the grant of the proposed lease. The ancillary agreement has also been signed by each of the persons or companies comprising the grantee party.
Seven out of eight of the persons comprising the applicant, registered native title claimant and native title party have signed a State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and the native title party)) agreeing to the grant of the proposed lease to the grantee party. This Deed is expressed as being made between the native title party, the Government party and Archaean Exploration Services Pty Ltd, Carterton Holdings Pty Ltd (‘Carterton’), Anthony William Kiernan, Plato Prospecting Pty Ltd, Anthony John Woodhill and Woodline Pty Ltd. Carterton is not recorded as a grantee party on the s 29 notice, but a copy of the State Deed reveals that Howard Anthony Tew and Robert John Goode, who are documented as part of the grantee party in the s 29 notice, have signed as directors of Carterton and I accordingly find that each of the persons or companies comprising the grantee party has executed the State Deed.
One of the persons comprising part of the applicant and the native title party (Sue Wyatt) has not signed the State Deed. The s 35 application states that numerous unsuccessful attempts to contact Ms Wyatt have been made over the past twelve months but Mr Alexander does not specify whether it is the inability to contact Ms Wyatt, or a refusal on her part to be contacted, that has resulted in the partially executed State Deed.
Because Ms Wyatt has not signed the ancillary agreement or State Deed, this matter cannot be concluded by way of a s 31 agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
Native title party evidence
On 25 January 2006, the Tribunal conducted a hearing. Ms Elizabeth Sambo, represented the native title party, Mr Alexander represented the grantee party and Mr Trevor Creewel and Ms Faye Mitchell appeared for the Government party. At the hearing these persons confirmed their consent to the future act determination in the terms sought. The Tribunal made several unsuccessful attempts to contact Ms Wyatt about the hearing including leaving messages for her to contact the Tribunal’s Case Manager. Although Ms Wyatt did not respond to these approaches and did not appear at the hearing, I am satisfied that adequate attempts were made to contact her and involve her in the proceedings and that it is appropriate to proceed in her absence.
A split between persons named as part of the native title party has been apparent in several previous matters before the Tribunal (Gary Dimer and Others; Elizabeth Sambo and Others; Anne Joyce Nudding and Others/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17, [2003] NNTTA 117 (18 November 2003), Hon C J Sumner, Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Siberia Mining Corporation Limited/Western Australia, NNTT WF04/4, [2004] NNTTA 15 (9 March 2004), Hon C J Sumner, and Linda Champion and Others on behalf of the Central West Goldfields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velickovic and Others on behalf of the Widji People/Bryan William Alexander/Western Australia, NNTT WF04/18, [2004] NNTTA 77 (2 September 2004)). In each of these matters the Tribunal made a determination that the future act may be done despite Ms Sue Wyatt’s failure to consent. The Tribunal pointed out that a native title party was all the named applicants (or more accurately all the persons named as part of the applicant) acting jointly and not each individual named applicant. This view has also been confirmed in Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375. An individual person named as part of an applicant for native title is not a party in these proceedings and is not entitled to be separately represented.
My finding is that on the basis of the evidence referred to above the claim group as a whole consent to the determination. Seven of the eight persons named as the applicant have signed the ancillary agreement and the State Deed thereby confirming that they consider the agreement has the support of the claimant group. Further, Ms Sambo has signed the minute of consent on behalf of the native title party. For the reasons explained in the cases cited above Ms Wyatt is not a native title party and has no standing on her own to oppose the determination. It is also not clear on the evidence whether she actually opposes the grants. In any event I am satisfied that the claim group as a whole consent to the grant and would have been so satisfied (as I was in WF03/16 and WF03/17) even if Ms Wyatt had opposed it.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Mining Lease M77/846 to Woodline Pty Ltd, Archaean Exploration Services Pty Ltd, Robert John Goode, Anthony John Woodhill, Plato Prospecting Pty Ltd, Anthony William Kiernan and Howard Anthony Tew, may be done.
Hon C J Sumner
Deputy President
25 January 2006
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