Albert Little and Others on behalf of the Badimia People/Apex Minerals Nl/Mark Gareth Creasy/Western Australia

[2003] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little and Others on behalf of the Badimia People/Apex Minerals NL/Mark Gareth Creasy/Western Australia, [2003] NNTTA 47 (14 March 2003)

Application No:        WF03/6

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

Albert Little and Others on behalf of the Badimia People – WC96/98 (Applicant/Native Title Party)

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Apex Minerals NL and Mark Gareth Creasy (Grantee 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:  14 March 2003

Catchwords:    Native title - future act - application for determination for the grant of exploration licence - consent determination that the act may be done.

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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001

Hearing Date:                 14 March 2003

Counsel for the               

Native Title Party:          Ms Frances Flanagan, Yamatji Land and Sea Council

Representative of the     

Native Title Party:          Mr Cedric Davies, Yamatji Land and Sea Council

Representative of the

Grantee Party:                Mr Chris Clegg, Statewide Tenement and Advisory Services P/L

Representative of the

Government Party:        Mr Rod Wahl, Crown Solicitor’s Office, Mr Nicholas Hort and Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 12 June 2002 the State of Western Australia (‘the Government party’) 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 exploration licence E59/1079 to Apex Minerals NL and Mark Gareth Creasy (‘the grantee party’).

2. The Native Title Party in respect of these proceedings is Albert Little and Others on behalf of the Badimia People (WC96/98).

3. On 10 March 2003, being a date more than six months after the s 29 notice was given, the Native Title Party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act in relation to exploration licence E59/1079. The parties consent to a determination that the act may be done. The National Native Title Tribunal (‘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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

4. On 14 March 2003, the Tribunal conducted a hearing. All parties indicated their consent to a determination that the future act may be done in terms of the minute submitted jointly by Mr David Ritter, Principal Legal Officer with the Yamatji Land and Sea Council for the Native Title Party, Mr Rod Wahl of the Crown Solicitor’s Office for the Government Party, by Mr Steven Stone of Apex Minerals NL, and by Mr Mark Gareth Creasy. The Yamatji Land and Sea Council is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Badimia native title claim.

1. The consent determination minute said:

   ‘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 Grantee Party and the Native Title Parties have complied with the requirements of s 31(b) of the Native Title Act 1993.

   3. The Government Party, the Grantee Party and the Native Title Parties consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of exploration licence E59/1079 may be done pursuant to the agreement entitled ‘YAMATJI LAND AND SEA COUNCIL CONTRACT FOR SERVICES IN RELATION TO EXPLORATION’ dated 6 March 2003.’

2. Paragraph 10 of the s 35 Application says:

   ‘The negotiation parties have not been able to execute a formal agreement of the type mentioned in para 31(1)(b) of the Native Title Act (1993) in respect of the future act.’

3. The grantee party wishes to commence exploration urgently and would be delayed if all sixteen registered native title claimants had to sign the State Deed.

4. I am satisfied that the Native Title Party consents to the determination in the terms set out in the above minute. Any effect of the future act on native title (s 39(1)(a)(i) of the Act) and sites of particular significance to the native title party (s 39(1)(a)(v)) will be minimised by the heritage survey required by the agreement. The Grantee Party representative has advised the Tribunal that a Heritage Survey was completed recently (as provided for in the ‘Yamatji Land and Sea Council Contract for Services in Relation to Exploration’ dated 6 March 2003).

Determination

1. The determination of the Tribunal is that the act, being the grant of exploration licence E59/1079 to Apex Minerals NL and Mark Gareth Creasy can be done pursuant to the agreement entitled ‘Yamatji Land and Sea Council Contract for Services in Relation to Exploration’ dated 6 March 2003.

Hon C. J. Sumner
Deputy President

14 March 2003