Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People

[2008] NNTTA 163

NATIONAL NATIVE TITLE TRIBUNAL

Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2008] NNTTA 163 (19 December 2008)

Application No:        WF08/30

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Australian Manganese Pty Ltd (Applicant/grantee party)

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The State of Western Australia (Government party)

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David Stock and Others on behalf of the Nyiyaparli People (WC05/6) (native title party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea, Member

Place:  Perth
Date:  19 December 2008

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – Alternative Heritage Agreement – logistical difficulties preclude the execution of the State Deed – native title party consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38

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

Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli People (WC99/4)/Beyondie Gold NL/Western Australia, NNTT WF02/9, [2002] NNTTA 122 (28 June 2002), Hon C J Sumner

Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF07/26, [2008] NNTTA 38 (3 April 2008), Hon C J Sumner

David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WF08/26, [2008] NNTTA 124 (2 September 2008), Member O’Dea

Hearing date:  15 December 2008

Counsel for the  Mr Adam Slattery

native title party:                 Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

Counsel for the  Mr Ken Green, Green Legal Pty Ltd

grantee party:  Australian Manganese Pty Ltd           

Representative for the        Mr Rod Wahl, State Solicitor’s Office
Government party:             Ms Paola O’Neill, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 13 February 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of a general purpose lease G52/281 (‘the proposed lease’) under the Mining Act 1978 (WA) to Australian Manganese Pty Ltd (‘the grantee party’).

2. The proposed lease comprises an area of 60.03ha and is located 51 kilometres south-easterly from Newman in the Shire of Meekatharra. The proposed lease is 100 per cent overlapped by the registered claim of the native title party.

3. The native title party in respect of this proceeding is David Stock, Gordon Yuline, Raymond Drage, Brian Samson, Victor Parker and Richard Yuline for and on behalf of the Nyiyaparli People (WC05/6 – registered from 29 November 2005) (‘the native title party’). 

4. The right to negotiate under s 31 of the Act applied in respect of the proposed lease. Application for mediation assistance was sought by the grantee party on 6 March 2008 and the matter designated WM08/12. On 15 August 2008 the parties indicated that they had reached agreement and on that basis the native title party consented to the grantee party lodging a s 35 consent determination application with the Tribunal. The parties consented to my dealing with the s 35 application.

5. On 21 November 2008, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed lease.

6. At paragraph 10 of the application, there is a statement to the effect that the parties have failed to reach agreement.  However, this is contradicted by the assertion in paragraph 14.2 of the application and the attached copy of a NNTT mediation meeting minute to the effect that the parties had reached agreement and that the native title party consequently consented to the bringing of the application by the grantee party.

7. It should be noted that the whole of the proposed lease falls within Crown Reserve 41265 which is reserved for the ‘Use and Benefit of Aboriginal Inhabitants’.  The nature of this reserve is set out in detail in a recent decision of Deputy President Sumner (Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF07/26, [2008] NNTTA 38 (3 April 2008) at paragraphs [14] and [15]). Suffice it to say, upon the grant of the proposed lease the requirements of s 23 and s 24 of the Mining Act 1978 (WA) will need to be complied with before access is granted to the area of the proposed lease.

8. Appended to the s 35 determination application is a minute of consent determination executed in counter parts by Green Legal on behalf of the grantee party, Mr Adam Slattery, Legal Officer employed by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) on behalf of the native title party and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party. It states as follows:

‘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 General Purpose Lease 52/281 may be done.’

1. The Tribunal has the 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 YMBBMAC is the recognised representative body under the Act for the native title party and represents them in these proceedings via their service arm the Pilbara Native Title Services (‘PNTS’). 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).

The inquiry

1. On 15 December 2008 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Mr Slattery advised he was satisfied that he had been properly instructed by the native title party to consent to the determination.

Findings

1. On the basis of the information contained in the application and the signed minute of consent executed by all parties, the evidence given by Mr Slattery at the hearing and the reasons for seeking a consent determination, I am satisfied that the native title party has consented to the doing of the act. The Tribunal has previously accepted the statement from PNTS where logistical difficulties in obtaining signatures of the native title party to a State Deed have existed as a legitimate basis for seeking a consent determination (see Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli People (WC99/4)/Beyondie Gold NL/Western Australia, NNTT WF02/9, [2002] NNTTA 122 (28 June 2002), Hon C J Sumner at [7]-[9]; David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WF08/26, [2008] NNTTA 124 (2 September 2008), Member O’Dea). In this matter the application was brought by the grantee party apparently with a view to expediting the grant of the tenement. That circumstance does not materially affect the question of whether the parties can properly consent and as a consequence, I am satisfied that the native title party has consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of general purpose lease G52/281 to Australian Manganese Pty Ltd, may be done.

Daniel O’Dea
Member
19 December 2008