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

[2002] NNTTA 122

NATIONAL NATIVE TITLE TRIBUNAL

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, [2002] NNTTA 122 (28 June 2002)

Application No:        WF02/9

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

Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage on behalf of the Nyiyaparli People (WC99/4) (Native Title Party)

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Beyondie Gold NL (Grantee Party)

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The State of Western Australia (Government Party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth

Date:  28 June 2002

Catchwords:    Native title - future act - application for determination for the grant of exploration licences - consent determination that the acts 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 C J Sumner, 22 June 2001

Hearing Date:                 28 June 2002

Counsel for the

native title party:            Ms Christina Aranjo, Pilbara Native Title Service

Representative of the

native title party:            Mr Adrian Murphy, Pilbara Native Title Service

Representative of the

grantee party:                 Mr Kevin Connell, Statewide Tenement &

Advisory Services Pty Ltd

Counsel for the               

Government party:         Mr Mark DiRenzo, Crown Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On 3 November 1999 and 26 January 2000, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts namely the grant of exploration licences E52/1470 and E69/1518 to E69/1519 respectively (‘the exploration licences’), under the Mining Act 1978 (WA) to De Grey Mining NL (‘the grantee party’). The Tribunal had previously determined that the expedited procedure was not attracted (WO99/880 for E52/1470 and WO00/154 for E69/1518 & E69/1519).

2. On 14 February 2001, the Australian Securities and Investments Commission registered a change of name for De Grey Mining NL to Beyondie Gold NL.

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

• Brian Samson, Victor Parker, Richard Yuline, David Stock, Gordon Yuline and Raymond Drage (WC99/4)

1. On 5 June 2002, 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 above exploration licences. An amended application was filed on 18 June 2002.

2. The parties consent to a determination that the exploration licences may be granted.  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 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).

3. On 28 June 2002, the Tribunal conducted a hearing.  The Tribunal was informed and I accept that the exploration licences are the subject of a Contract for Services In Relation To Exploration (‘the Agreement’) between the grantee party and the Pilbara Native Title Service (‘PNTS’) on behalf of the Nyiyaparli People.  Beyondie Gold NL and the PNTS have executed the Agreement.  The Agreement requires heritage surveys to be undertaken within the proposed tenements prior to undertaking certain ground disturbing activities.   

4. Normally, State Deeds (agreement of the kind mentioned in s 31(2)(b)) would be executed by all parties to facilitate the granting of the exploration licences.  However, given the difficulties experienced by the PNTS in obtaining signatures, the native title party, by virtue of a standing arrangement, has authorised the PNTS to assist in expediting the grant of the exploration licences by seeking a future act consent determination.  The PNTS is a service division of Yamatji Barna Baba Maaja Aboriginal Corporation which is the designated representative Aboriginal/Torres Strait Islander Body for the area of the claim.  The Agreement is in similar terms to other agreements used commonly by the PNTS on behalf of claim groups within its area to ensure protection of Aboriginal heritage.

5. The representatives of all parties have signed a document 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 Grantee Party and the Native Title Party 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 Party consent to a determination under s 38 of the Native Title Act 1993 that the ‘act’ being the grant of exploration licences 52/1470, 69/1518 and 69/1519 may be done.’

6. At the hearing all parties through their representatives, Mr Adrian Murphy of the PNTS representative of the native title party, Mr Kevin Connell for Beyondie Gold NL and Mr Mark DiRenzo (Crown Solicitor’s Office) counsel for the Government party, confirmed their consent to the determination requested. I am satisfied on the evidence provided at the hearing by Mr Murphy that the native title party as a group consents to the determination being sought. I also note that heritage surveys of the exploration licences are to be undertaken pursuant to the Agreement, thus ensuring that there is unlikely to be any interference with sites of significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E52/1470, E69/1518 and E69/1519 to Beyondie Gold NL, may be done.

Hon C J Sumner
Deputy President

28 June 2002