Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia

[2004] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, [2004] NNTTA 1 (16 January 2004)

Application No:        WF03/24

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 the Ngarla People (WC99/26) (Applicant/native title party)

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Westralian Nickel Pty Ltd (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                  The Hon C J Sumner, Deputy President

Place:  Perth
Date:  16 January 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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) 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

Evans and Anor on behalf of the Koara People v State of Western Australia and Ors (1997) 77 FCR 193

Hearing Date:          16 January 2004

Representative of the     Ms Victoria Wetherby, Pilbara Native Title Service (of counsel)
native title party:            Mr Sean O’Reardon, Yamatji Land and Sea Council

Representative of the
grantee party:                 Mr George Lee, Westralian Nickel Pty Ltd

Representative of the      Mr Trevor Creewel, Crown Solicitor’s Office (of counsel)

Government party:        Mr Dave Thomson, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 7 May 1997, 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 E45/1866 to Westralian Nickel NL (now changed its name to Westralian Nickel Pty Ltd) (‘the grantee party’).

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 (Language Group) People (WC99/26).

3. On 9 December 2003, being a date more than six months after the s 29 notice was given, the Pilbara Native Title Service on behalf of 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 exploration licence E45/1866. The Pilbara Native Title Service is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Ngarla native title claim. The parties consent to a determination that the act may be done subject to the terms of an Ancillary Agreement entered into by the native title party and the grantee party dated 25 November 2003 and titled “Contract for Services in Relation to Exploration”.

4. 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, [2001] NNTTA 50 (22 June 2001) Hon C J Sumner).

5. On 16 January 2004, the Tribunal conducted a hearing.  Prior to the hearing the native title party and the grantee party jointly submitted a minute signed by their representatives in the following terms:

   ‘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 [sic] 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 [sic] to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of exploration Licence Application 45/1866 may be done, subject to the terms of the ‘Contract for Services in Relation to Exploration’, executed by the Native Title Party and Grantee Party on 25 November 2003.’

6. These parties and the Government party confirmed their consent at the hearing. The ‘Contract for Services in Relation to Exploration’ referred to in the minute (hereinafter referred to as the “Agreement”) was provided to the Tribunal in the form of an attachment to the s 35 Application. The proposed consent determination is sought to be expressed in terms that the act may be done subject to the terms of the Agreement. I refer to the decision in 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. In that decision I made comments at paragraph [6] that whilst the Tribunal has a broad power to impose conditions there are some limitations (see s 38(2) of the Act and discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214). For instance, the Tribunal must not determine a condition that has the effect that the native title parties are to be entitled to payments worked out by reference to the amount of profits made, any income derived or any things produced by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done (s 38(2) of the Act). In that matter I declined to make a determination subject to the Agreement because I had not sighted it to ensure that its terms were consistent with the power of the Tribunal to make a determination with conditions. In the present matter I have read the Agreement provided and it does not contain terms which the Tribunal does not have power to impose. Reference is made to a Schedule of Fees but the amounts therein are unambiguous and do not refer to production amounts or profits.

7. The Agreement does not appear to have been endorsed by the grantee party on the last page of the Schedule of Fees but at the hearing the grantee party’s representative confirmed his agreement to it.

8. In these circumstances I am prepared to make the determination subject to the terms of the Agreement.

9. I accept the basis for seeking the consent determination set out by the native title party in paragraph 10 of the s 35 Application:

   ‘The parties reached agreement about the act at a Ngarla working group meeting held at the Walkabout Hotel in Port Hedland on 11 November 2003.  The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed in a timely manner.’

10. At the hearing Ms Wetherby, Counsel for the native title party confirmed that these instructions had been obtained by the Pilbara Native Title Services

11. I am satisfied that the native title party consents to the determination in the terms outlined above. I note as asserted by the native title party in para 11 of the s 35 Application that any effect of the future act on native title (s 39(1)(a)(i) of the Act) will be minimised by abiding by the terms of the Agreement referred to in this determination and for which I am prepared to make a conditional determination.

Determination

1. By consent the determination of the Tribunal is that the act, being the grant of exploration licence E45/1866 to Westralian Nickel Pty Ltd, may be done subject to the ‘Contract for Services in Relation to Exploration’ executed by the Native Title party and the grantee party on 25 November 2003.

Hon C J Sumner
Deputy President
16 January 2004