Deputy President Hon C J Sumner
Tribunal Deputy President Sumner described this future act determination as ‘unique’. The proponent, Seven Star Investments Group P/L (SSIG), had applied for an exploration licence (EL) within the Wiluna native title claim area. SSIG had marked out the area in the shape of a cross, based on a story of Constantine, and located by the ‘mystical knowledge’ of shareholder-director Mr Ghaneson. Negotiations over a heritage agreement took place but broke down.
SSIG asked the Tribunal to allow the granting of the EL under s 38 of the Native Title Act 1993 (Cth)(NTA). The Wiluna people opposed the grant of the tenement primarily based on SSIG's conduct (through Mr Ghaneson) in negotiations with the Wiluna people and Central Desert Native Title Service (CDNTS) staff. They submitted that SSIG had made remarks intended to intimidate the native title party, which escalated to threats of violence; had made inappropriate and disrespectful remarks about the native title party and the area of the tenement application; and ‘appears to have substantive difficulty distinguishing the real world from a fictitious world’. Thus, they argued, it would be unconscionable to grant the tenement.
In listings hearings, Sumner proposed setting a condition by consent that Mr Ghaneson would not be involved with the Wiluna people or come onto the area. SSIG submitted that only Mr Ghaneson possesses the mystical knowledge required for the proposed exploration, so the parties could not consent.
The Tribunal accepted affidavit evidence from Wiluna man Robert Wongawol about the claimants' cultural obligations regarding their country, including ensuring that other parties coming onto the country understand those obligations. Sumner also considered the relevant factors in s 39 NTA, and found that granting the tenement would not, in normal circumstances, affect the Wiluna claimants' use and enjoyment of the area or sites of significance.
Conclusion
Sumner concluded that it was not in the public interest to grant the tenement for two reasons: firstly, the exploration methodology ‘has no rational or scientific basis’; and secondly because Mr Ghaneson's prior conduct had caused an ‘irretrievable breakdown in relations between CDNTS and SSIG... [with] real potential for further serious disputations... which will impact on the claimants' capacity to carry out their cultural obligations’.