Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Peter Romeo Gianni

[2006] NNTTA 143

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Peter Romeo Gianni, [2006] NNTTA 143 (24 October 2006)

Application Nos:       WF06/43

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

Cyril Barnes and Others on behalf of the Central East Goldfields People (WC99/30) (native title party)

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The State of Western Australia (Government party)

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Peter Romeo Gianni (grantee party)

FUTURE ACT DETERMINATIONS

Tribunal:  Dan O’Dea, Member

Place:  Perth
Date:  24 October 2006

Catchwords:  Native title — future act — application for determination for the grant of exploration licence — named applicant declines to sign state deed — regional standard heritage agreement — native title party as a whole consents to the determination — consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 29, 35, 38, 109

Cases:Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/Gindalbie Metals Ltd, NNTT WF06/55, [2006] NNTTA 110 (8 August 2006), Hon C J Sumner

Hearing date:  Not applicable

Counsel for the  
native title party:                 Mr Murray Hutchings, Goldfields Land and Sea Council

Representative  

of the grantee party:           Mr Mike Lewis

REASONS FOR FUTURE ACT DETERMINATION

Background facts

1. On 20 April 2005 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 exploration licence E28/1497 (‘the proposed licence’) under the Mining Act 1978 to Peter Romeo Gianni (‘the Grantee Party’). The proposed licence is 11.83 square kilometres and is located 116 kilometres easterly of Kalgoorlie in the Shire of Kalgoorlie-Boulder City. The proposed licence is 100% overlapped by the registered claim of the native title party.

2. The native title party with respect to this proceeding is Cyril Barnes, Elvis Stokes, Mercy O'Loughlin, Merle Forrest, Stevie Sinclair and Victor Willis on behalf of the Central East Goldfields People (WC99/30) (‘the native title party’).

3. On 13 July 2006, being a date more than six months after the s 29 notice was given, the native title party made the application the subject of these reasons pursuant to s 35 of the Act for a future act determination under s 38. The native title party requested that the future act determination be made by consent.

4. Appended to the s 35 determination application is a minute of consent determination signed by the representative of the Native Title parties. On 6 September 2006 Mr David Crabtree of the Department of Industry and Resources provided to the Tribunal a copy of a minute of consent determination signed by the Grantee Party and on 19 October 2006 Mr Rod Wahl of the State Solicitor’s Office provided to the Tribunal a copy of a minute of consent determination signed on behalf of the Government Party.

5. The reasons for seeking a consent determination are attached to the application in the form of an affidavit of Mr Murray Hutchings, barrister and solicitor employed by the Goldfields Land and Sea Council (‘GLSC”) for the native title party, dated 12 July 2006.  The contents of the affidavit and other evidence have been set out in the reasons for decision in Cyril Barnes and Others on behalf of the Central East Goldfields People/ Western Australia/Gindalbie Metals Ltd, NNTT WF06/55, [2006] NNTTA 110 (8 August 2006), Hon C J Sumner (‘Gindalbie’) at paras [6]-[8], [12] and are also applicable to this matter.  One of the persons (Ms Mercy O’Loughlin) named as part of the applicant for a determination of native title has refused to sign agreements entered into by the native title party collectively.

The inquiry

1. On 1 August 2006 the Tribunal conducted hearings at which the native title party was legally represented by Mr Murray Hutchings.  Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party.  In a similar matter (WF06/55) the grantee party was represented, and in the present matters the Tribunal decided, given the facts common to each application, that it could decide the matters on the papers without hearing the grantee party representative.  In relation to all matters Mr Hutchings has confirmed that the facts relating to the native title party consent are the same as considered in Gindalbie except that the tenement and grantee party are different. 

Findings in relation to the native title party

1. The law and facts relating to the native title party consent to a determination that the proposed licences may be granted are the same as considered in Gindalbie.I adopt the findings from the following paragraphs of those reasons for the purposes of the determination of the present applications.

2. Para [10] that the Tribunal has power to make a consent determination.

3. Paras [12] dealing with the facts giving rise to the applications for a consent determination.

4. Para [13] including the findings relating to the responsibilities of the GLSC as the recognised representative body under the Act to protect the interests of native title holders, the manner in which the Tribunal is to carry out its functions under s 109 of the Act and that the Tribunal is entitled to accept as evidence the advice of the GLSC’s legal representations on whether the appropriate consent has been given by the Wongatha native title party.

5. Para [14] including that I am satisfied that the native title party collectively consents to the determination, despite the refusal of one of the persons jointly comprising the applicant to sign the State Deed.

Determination

1. By consent the determination of the Tribunal is that the act being the grant of the exploration licence E28/1497 to Peter Romeo Gianni may be done.

Dan O’Dea
Member

24 October 2006