Chichester Metals Pty Ltd/David Stock and Ors on behalf of the Nyiyaparli People/Western Australia

[2013] NNTTA 139

NATIONAL NATIVE TITLE TRIBUNAL

Chichester Metals Pty Ltd/David Stock & Ors on behalf of the Nyiyaparli People/Western Australia [2013] NNTTA 139 (6 September 2013)

Application No:        WF2013/0009

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

Chichester Metals Pty Ltd (grantee party)

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David Stock and Ors on behalf of the Nyiyaparli People (WC2005/006) (Applicant/ native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                  Helen Shurven, Member

Place:  Perth

Date:  6 September 2013

Catchwords:  Native title – future act – application for determination in relation to grant of exploration licence – native title party as a whole consents to the determination – consent determination that the act may be done

Legislation:Native Title Act1993 (Cth) ss 29, 31, 38, 61(2), 62A, 109, 253

Cases:Placer (Granny Smith) Pty Ltd v Western Australia (2000) 163 FLR 87, ('Granny Smith')

Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, (‘Monkey Mia’)

Moore v Mungeranie (2005) 193 FLR 62, (‘Mungeranie’)

Foster v Copperstrike (2006) 200 FLR 182, ('Copperstrike')

Representatives of the       Mr Domhnall McCloskey, State Solicitor’s Office

Government Party:           Mr Rod Wahl, State Solicitor’s Office

Ms Jan Mason, Department of Mines and Petroleum

Representative of the    Ms Kate Holloman, Yamatji Marlpa Aboriginal Corporation

native title party:               

Representative of the        Ms Nerolie Nikolic, Chichester Metals Pty Ltd

grantee party:  

REASONS FOR FUTURE ACT DETERMINATION

1. On 2 August 2006, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of exploration licence E46/666 (‘the proposed licence’) to FMG Chichester Pty Ltd (now Chichester Metals Pty Ltd) (‘the grantee party’) under the Mining Act 1978 (WA).

2. The proposed licence comprises an area of 22.18 square kilometres, located 50 kilometres north of Newman in the Shire of East Pilbara. The proposed licence overlaps the registered native title claim of the Nyiyaparli people (WC2005/006 – registered from 29 November 2005) by 91.79 per cent.

3. The registered native title claimants for Nyiyaparli are David Stock, Gordon Yuline, Raymond Drage, Victor Parker and Billy Cadigan (‘the native title party’).

4. On 16 August 2013, being a date more than six months after the notification day, the native title party applied to the Tribunal to make a determination under s 38 of the Act, in relation to the proposed licence. The application states that the native title party authorise, direct and instruct Yamatji Marlpa Aboriginal Corporation to make this application for a determination that the proposed licence be granted. In subsequent correspondence, the native title party representative confirmed that a State Deed was unable to be executed for the proposed licence as required by the ancillary agreement because the native title party is in the process of replacing the applicant.

5. I accepted the application on 3 September 2013.

6. On 4 September 2013, a proposed Minute of Consent Orders was circulated between the native title party, the Government party and the grantee party. The Minute was signed by all parties and made 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 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 consent to a determination under s. 38 of the Native Title Act 1993 that the “act”, being the grant of Exploration Licence E46/666, may be done.

Legal Principles

1. Though the native title party may arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit, within the framework of the Act, only the person or persons comprising the applicant are authorised to bring a native title application or deal with matters arising from it (see in particular ss 61(2) and 62A of the Act). Part 2 of Division 3 of the Act, which concerns future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate (in the case of an area where a determination of native title has been made) or a Registered Native Title Claimant (where a native title application has been accepted for registration but not yet determined), (see s 29(2) of the Act).

2. Relevantly, s 253 of the Act defines the Registered Native Title Claimant as ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims in relation to a claim to hold native title in relation to land or waters.’ However, the Tribunal has accepted that the native title party is not each registered native title claimant but the registered native title claimants acting collectively as representatives and agents of the claim group: Granny Smith at [50]-[56]; Monkey Mia at [19]; Mungeranie at [45].

The inquiry

1. The relevant extract from the Register of Native Title Claims confirms that the native title party is legally represented, and written submissions in this consent determination were made on behalf of the native title party by their legal representative.  On enquiry with the native title party legal representative about the applicant replacement process, the Tribunal was advised that it is one person who is the subject of replacement, because of their general  unwillingness to sign State Deeds as required under ancillary agreements and authorised by the Nyiyaparli Claim Group, including the State Deed for the proposed licence.

Findings

1. Based on the information provided by the native title party’s legal representative, I find that the claim group as a whole consents to the grant of the proposed licence.

2. In light of these findings, I am satisfied that the native title party, acting collectively, agree to the doing of the proposed act and consent to a determination in the terms sought. There is no credible suggestion that it would be inappropriate to make a determination on that basis.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of exploration licence E46/666 to Chichester Metals Pty Ltd, may be done.

Helen Shurven
Member
6 September 2013