Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Bushwin Pty Ltd

[2006] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Bushwin Pty Ltd, [2006] NNTTA 57 (17 May 2006)

Application No:         WF06/18

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

Merle Forrest and Others on behalf of Central East Goldfields People (WC99/30) (native title party)

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The State of Western Australia (Government party)

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Bushwin Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  17 May 2006

Catchwords:  Native title – future acts – application for determination for the grant of exploration licences – one named applicant declines to sign state deed – ancillary agreement executed – 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:Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL, NNTT WF06/16, [2006] NNTTA 55 (17 May 2006), Hon C J Sumner

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date:  12 May 2006

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

Representative of the          
grantee party:  Mr Dennis Hawtin

Representatives of the        Mr Rod Wahl, State Solicitor’s Office
Government party:               Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 20 April 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E28/1479 and E28/1480 (‘the proposed licences’) under the Mining Act 1978 (WA) to Adelaide Prospecting Pty Ltd (’the grantee party’).

2. The native title party with respect to these proceedings is Cyril Barnes, Merle Forrest, Mercy O’Loughlin and Others on behalf of the Central East Goldfields (WC99/30 – registered from 4 October 1999).

3. The area and location of each of the proposed licences is as follows:

   ·E28/1479 – 2.95 square kilometres, 68 kilometres easterly of Kalgoorlie in the City of Kalgoorlie-Boulder;

   ·E28/1480 – 2.95 square kilometres, 63 kilometres easterly of Kalgoorlie in the City of Kalgoorlie-Boulder;

Each of the proposed licences entirely overlaps the registered claim of the native title party.

1. On 26 April 2006, being a date more than six months after the s 29 notice was given, the Central East Goldfields People made an application pursuant to s 35 of the Act for a future act determination under s 38.

2. The native title party requested that the future act determination be made by consent and appended to the s 35 determination application a minute of a consent determination in the following terms, executed by Mr Murray Hutchings on behalf of the native title party, and since executed by Mr Dennis Hawtin 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)

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 Exploration Licences 28/1479 & 28/1480 may be done.’

1. 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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).

2. The reasons for seeking a consent determination set out in para 10 of the application and are clarified in the affidavit of Mr Murray Hutchings, the solicitor for the native title party.  The contents of the affidavit and other evidence have been set out in my reasons for decision in Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Giralia Resources NL, NNTT WF06/16, [2006] NNTTA 55 (17 May 2006), Hon C J Sumner (‘Giralia’) at paras [8]-[10] and are also applicable to this matter.  One of the persons named as part of the applicant for determination of native title (Ms Mercy O’Loughlin) has refused to sign agreements entered into by the native title party collectively.

The inquiry

1. On 12 May 2006, the Tribunal conducted a hearing at which the native title party was legally represented by Mr Hutchings, and the Government party by Mr Rod Wahl.  Mr Dennis Hawtin appeared for the grantee party.  All parties confirmed their consent to the determination in the terms sought.  Mr Hutchings advised that he was satisfied that the facts set out in para 10 of the application and in the affidavit evidence were correct and that Goldfields Land and Sea Council (‘GLSC’) had been properly instructed by the native title party to consent to the determination.  He also informed the Tribunal that the ancillary agreement dated 10 January 2006 and signed on behalf of the native title party and by the grantee party is based on the Regional Standard Heritage Agreement for exploration endorsed by the GLSC, the Government party and industry and that this agreement contains provisions to protect Aboriginal heritage.

2. The Tribunal has previously accepted the difficulty in obtaining the signature of the dissenting named applicant on a State Deed (i.e. a s 31(1)(b) agreement), referred to in para 10 of the application and in Mr Hutchings’ affidavit, as a legitimate basis for making a consent determination (Giralia at para [13]) and I adopt those findings for the purposes of this determination. I also adopt my findings in para [12] of that determination in relation to the responsibilities of the GLSC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E28/1479 and E28/1480 to Bushwin Pty Ltd, may be done.

Hon C J Sumner
Deputy President

17 May 2006