Alexander Brown and Others on behalf of Ngarla/Western Australia/Mercator Metals Pty Ltd

Case •

[2004] NNTTA 83

•

15 September 2004

NATIONAL NATIVE TITLE TRIBUNAL

Alexander Brown and Others on behalf of Ngarla/Western Australia/Mercator Metals Pty Ltd, [2004] NNTTA 83 (15 September 2004)

Application No:        WF04/19

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

Alexander Brown and Others on behalf of Ngarla (WC99/26) (Applicant/ native title party)

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The State of Western Australia (Government party)

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Mercator Metals Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  15 September 2004

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, 203B(4), 203BB(1)(b), 203BC(1)(a), 203BC(1)(b), 203BC(2)

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

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner

Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner

Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner

Hearing date: 14 September 2004

Counsel for the
native title party:             Mr Jeremy Ryan, Pilbara Native Title Service

Representative of the      
native title party:             Mr Sean O’Reardon, Pilbara Native Title Service

Representative of the      Mr George Lee, Tenement Officer
grantee party:                 Mr Adrian Griffin, Mercator Metals Pty Ltd

Representative of the      Mr Rod Wahl, State Solicitor’s Office

Government party:         Mr David Crabtree and Ms Paola O’Neill, Department of Industry and Resources


REASONS FOR FUTURE ACT DETERMINATION

Background

  1. On 6 October 1999, 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 E45/2146 (64.34 square kilometres, 20 kilometres north-easterly of Goldsworthy in the Shire of East Pilbara) (‘the proposed exploration licence’), under the Mining Act 1978 (WA) to Mercator Metals Pty Ltd.

  2. The native title party in respect of these proceedings is:

  • Clinton Cooke, Alexander Brown, Charlie Coppin and Jeffrey Brown on behalf of the Ngarla People (WC99/26) (‘Ngarla native title applicants’).

  1. On 17 August 2004, 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 in relation to the proposed exploration licence. The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) is the designated representative body under the Act for the Ngarla claim and has represented the native title party in these proceedings via their Pilbara region service arm, the Pilbara Native Title Service (‘PNTS’).

  2. The s 35 determination application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’, which is written in the following terms and was subsequently executed by Mr Jeremy Ryan, Mr George Lee (authorised tenement officer) and Mr Trevor Creewel (State Solicitor’s Office) on behalf of the native title party, grantee party and Government party respectively.

‘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 Licence Application 45/2146 may be done, subject to the terms of the ‘Contract for Services in Relation to Exploration’, executed by the Native Title Party and the Grantee Party on 26 July 2004.

  1. The s 35 determination application appends a copy of the agreement dated 26 July 2004 between the grantee party and Ngarla native title applicants, executed by Adrian Griffin, Managing Director of the grantee party, and Yamatji. The agreement is entitled ‘Contract for Services in Relation to Exploration’ and provides the conditions for conduct of a heritage survey.

  2. 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).

  3. Paragraph 10 of the s 35 application advises that the parties reached agreement about the act at the Ngarla working group meeting held in Port Hedland on 26 June 2004. The application further states that there are “logistical difficulties”, the nature of which are not revealed, in obtaining all signatures on a State Deed in a timely manner.

The hearing

  1. On 14 September 2004 the Tribunal conducted a hearing at which the representatives of the parties confirmed their consent to the future act determination in the terms sought.  Mr Jeremy Ryan, counsel for the native title party, elaborated on the logistical difficulties referred to in the application.  He explained that the geographical location of the named applicants was the problem.  He confirmed paragraph 10 of the application that agreement to the future act was obtained at a Ngarla working group meeting.  Mr Ryan also said that this was done in accordance with the usual way that he obtained instructions and that he was satisfied that the claim group had given instructions to consent to the determination. 

  2. As the designated representative body under the Act, Yamatji has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of Yamatji’s representatives on whether the appropriate consent has been given by the native title party.

  3. I have examined the terms of the ‘Contract for Services in Relation to Exploration’ and do not consider it contains any conditions which are beyond the power of the Tribunal to impose (see discussion in Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner). Accordingly, a determination in the terms sought, being ‘subject to’ the agreement, is appropriate.

Determination

  1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence E45/2146 to Mercator Metals Pty Ltd, may be done subject to the terms of the ‘Contract for Services in Relation to Exploration’ executed by Mercator Metals Pty Ltd and the Ngarla native title applicants on 26 July 2004.

Hon C J Sumner
Deputy President
15 September 2004

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