Balangarra Native Title Claimants/Western Australia/Striker Resources NL

[2003] NNTTA 104

NATIONAL NATIVE TITLE TRIBUNAL

Balangarra Native Title Claimants/Western Australia/Striker Resources NL, ()8 October 2003[2003] NNTTA 104

Application:   WF03/12

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

- and –

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

Balangarra Native Title Claimants (WC95/30)
(Native Title party)

- and -

The State of Western Australia
(Government party)

- and -

Striker Resources NL
(Grantee party)

FUTURE ACT DETERMINATION

Tribunal:       Daniel O’Dea

Place:             Perth
Date:              8 October 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:            2 October 2003

Counsel for the

Native Title Party:   Mr Phillip Hope - Kimberley Land Council

Representative of the

Native Title Party:   Ms Delores Cheinmora – Balanggarra

Representative of the

Grantee Party:         Mr Mathew Clohessy - Emerald Tenement Services Pty Ltd

Mr Kevin Hart - Striker Resources NL

Counsel for the

Government Party:  Mr Rod Wahl -  Crown Solicitors Office

Representative for the

Government Party:  Ms Faye Mitchell-  Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 11 December 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 (M80/532) under the Mining Act 1978 (WA) to Striker Resources NL (‘the grantee party’).

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

• Balanggarra Native Title Claimants (WC95/30).

1. On 18 September 2003, being a date more than six months after the s29 notice was given, the Grantee 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 Lease M80/532. 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 M80/532 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 “Agreement Relating to Native Title, Heritage, Culture, Environment, Training, Employment, Exploration, Mining and Liaison”, dated 20^th August 1997.  A State Deed giving effect to this agreement cannot be executed as seven of the named applicants are now deceased and it has proven difficult to obtain death certificates for them.

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 2 October 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 parties.

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 Native Title Party and the Grantee Party have 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 Mining Leases M80/532 may be done.’

6. Paragraph 10 of the s 35 Application reads:

   ‘The parties have in place a comprehensive agreement relating to Native Title, Heritage, Culture, Enviornment, Training, Employment, Exploration, Mining and Liaison between Balangarra, KLC and Striker Resources NL (“the agreement”) in relation to any exploration or mining activity in the agreement area. The parties are seeking a Consent Determination of the grant of M80/532.  All parties agree that the Consent Determination is subject to and the terms and conditions of the agreement will apply in respect to the grant of mining lease application 80/532. 

   A State Deed is unable to be executed by the parties due to the difficulty in obtaining Death Certificates of seven named applicants.’

1. At the hearing it was confirmed by Phillip Hope on behalf of the Balanggarra Native Title Party that he 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 tenement M80/532 to Striker Resources NL, may be done subject to the terms agreed between the parties.

Mr Daniel O’Dea
Member
8 October 2003