Badimia Native Title Claimants/Gindalbie Gold NL/Western Australia

[2003] NNTTA 102

NATIONAL NATIVE TITLE TRIBUNAL

Badimia Native Title Claimants/Gindalbie Gold NL/Western Australia, [2003] NNTTA 102 (26 September 2003)

Application:    WF03/14

IN THE MATTER of the Native Title Act 1993 (Cth)

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Badimia Native Title Claimants (WC96/98)
(Native Title party)

- and -

The State of Western Australia
(Government party)

- and -

Gindalbie Gold NL
(Grantee party)

FUTURE ACT DETERMINATION

Tribunal:         Daniel O’Dea

Place:              Perth
Date:               25 September 2003

Catchwords:   Native title – future act – application for determination for the grant of mining tenement – 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 CJ Sumner, 22 June 2001

Hearing date:            25 September 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 Gary Plowright, Gindalbie Gold NL

Counsel for the

Government Party:   Mr Rod Wahl, Crown Solicitors Office

Representative for the

Government Party:   Mr David Thomson and Mr David Crabtree, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 7 August 2002, 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 mining tenements (M59/425 and M59/460) under the Mining Act 1978 (WA) to Gindalbie Gold NL (‘the grantee party’). On 2 May 2001, 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 mining tenement (M59/431) under the Mining Act 1978 (WA) to the same grantee party.

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

• Badimia Native Title Claimants (WC96/98).

1. On 22 September 2003, being a date more than six months after the s29 notice was given, the Native Title Party made an application pursuant to s 35 of the Act for a future act determination to be made by consent under s 38 of the Act in relation to the grant of Mining Leases M59/426, M59/431 and M59/460. All the parties have indicated their consent to a determination that the act may be done and provided the National Native Title Tribunal (the ‘Tribunal’) with a Minute of Consent signed by all parties that that effect.

2. The Native Title Party informed the Tribunal, and I am satisfied that, the effect of the grant of M59/425, M59/431 and M59/460 on native title and sites of particular significance to the native title party (ss 39(1)(a)(i) and 39(1)(a)(v) of the Act) will be minimised by an agreement between the Native Title and grantee parties entitled ‘Project Deed between Gindalbie Gold NL and Badimia Native Title Applicants’, dated 15 August 2003.

3. 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 25 September 2003 the Tribunal conducted a hearing.  All parties indicated their consent to a determination that the future act may be done in terms of a Minute of Consent submitted by the Native Title Party.

5. The consent determination minute reads:

   ‘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 Mining Leases M59/426, M59/431 and M59/460 may be done pursuant to the agreement entitled “Project Deed between Gindalbie Gold NL and Badimia Native Title Applicants” dated 15 August 2003.’

6. Paragraph 10 of the s 35 Application reads:

   ‘The parties reached agreement about the act at a Badimia working group meeting held in Mt Magnet on 14 July 2003.  The applicant now makes this application for this determination because of the logistical difficulties of obtaining all signatures on the state deed and agreement in a timely manner.  The grantee and eleven (11) of the sixteen (16) registered claimants for the Badimia WC96/98 claim have executed the state deed and agreement at the time of making this application.’

1. At the hearing it was confirmed by Ms Flanagan on behalf of the Badimia Native Title Party that she had received instructions from the Native Title Party to consent to the application.  In those circumstances I am satisfied that the Native Title Party consents to the determination in the terms set out in the above minute.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining tenements M59/425, M59/431 and M59/460 to Gindalbie Gold NL may be done pursuant to the terms agreed between the parties in the agreement entitled ‘Project Deed between Gindalbie Gold NL and Badimia Native Title Applicants’ dated 15 August 2003.

Mr Daniel O’Dea
Member
26 September 2003