David Stock and Others on behalf of the Nyiyaparli People; Elsa Derschow and Others on behalf of Palyku/Western Australia/FMG Pilbara Pty Ltd
[2009] NNTTA 151
•19 November 2009
NATIONAL NATIVE TITLE TRIBUNAL
David Stock and Others on behalf of the Nyiyaparli People; Elsa Derschow and Others on behalf of Palyku/Western Australia/FMG Pilbara Pty Ltd, [2009] NNTTA 151 (19 November 2009)
Application No: WF09/25
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
David Stock and Others on behalf of the Nyiyaparli People (WC05/6) (Co-Applicant/ Nyiyaparli native title party)
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Elsa Derschow and Others on behalf of Palyku (WC99/16) (Co-Applicant/ Palyku native title party)
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FMG Pilbara Pty Ltd (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 19 November 2009
Catchwords: Native title – future acts – application for determination for the grant of exploration licences – named applicants not signed State Deed — native title parties as a whole consent to the determination — consent determination that the acts may be done.
Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151
Cases: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, Deputy President
David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd WF08/26 [2008], NNTTA 124 (2 September 2008), Dan O’Dea, Member
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Representative for the
native title party: Mr Rodney Nichole, Yamatji Marlpa Aboriginal Corporation
Representative for the
grantee party: Mr Sukhpal Singh, FMG Pilbara Pty Ltd
Representatives for the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 2 July 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 exploration licences E46/706, E46/716 and E46/722 (the proposed licences’) under the Mining Act 1978 (WA) to FMG Pilbara Pty Ltd (‘the grantee party’).
The registered native title claim of the Nyiyaparli People (WC05/6 – registered from 29 November 2005) entirely overlaps the proposed licence E46/716, while proposed licence E46/706 is overlapped at 70.2 per cent by the Nyiyaparli native title party claim and at 29.8 per cent by the registered native title claim of the Palyku People (WC99/16 – registered from 2 August 1999). The native title parties are therefore:
·David Stock, Gordon Yuline, Raymond Drage, Brian Samson, Victor Parker and Richard Yuline on behalf of the Nyiyaparli People (‘the Nyiyaparli native title party’); and
·Frederick Stream, Elsa Derschow, Cheryl Yuline and Florrie Sam on behalf of the Palyku People (‘the Palyku native title party’).
The proposed licences are located in the Shire of East Pilbara and the area and locations of each are as follows:
·E46/706 – 222 square kilometres, 56 kilometres north of Newman
·E46/716 – 126.04 square kilometres, 13 kilometres south east of Newman
On 8 April 2009, the Government party referred negotiations in relation to the proposed licences for Tribunal mediation assistance pursuant to s 31(3) of the Act and Member John Catlin was appointed as the Member to conduct those mediations (designated WM09/29 and WM09/30). Mediation was discontinued by the Member on 11 August 2009.
On 29 October 2009, being a date more than six months after the s 29 notice was given, the Palyku and Nyiyaparli native title parties made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licences (‘the application’). The native title parties requested that the future act determination be made by consent on the basis that there are logistical difficulties in arranging execution of the State Deed.
On 10 November 2009, the Tribunal received advice from the Department of Mines and Petroleum (‘DMP’) that the grantee party’s application for E46/722 had been discontinued on 9 November 2009. The Tribunal no longer has jurisdiction to hear and determined the inquiry in relation to E46/722 as the future act is no longer proposed. Henceforth, exploration licences E46/706 and E46/716 only will be the subject of this determination.
Appended to the s 35 determination application is a minute of consent determination in the following terms, executed in counterpart by Mr Rodney Nichole, Deputy Principal Legal Officer of Yamatji Marlpa Aboriginal Corporation (‘YMAC’), on behalf of the native title parties, Mr Sukhpal Singh, FMG Land Access Lawyer, on behalf of the grantee party and Mr Rod Wahl, 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 Exploration Licences 46/706, 46/716... may be done.’
Paragraph 10 of the application states that parties have entered into a regional agreement and the grantee agrees to abide by the provisions therein. It is further said that logistical difficulties preclude the execution of the State Deed (being an agreement of the kind contemplated by s 31(1)(b) of the Act).
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 v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
The inquiry findings
All parties have agreed that the determination could be made on the papers, amongst which included an affidavit from the representative of the native title parties attesting to its authority to bring a consent determination application on their behalf with respect to the proposed licences. I am satisfied that I can adequately determine the matter in this manner (s 151(2)).
The affidavit of Mr Nichole, Deputy Principal Legal Officer of YMAC, affirmed and filed with the Tribunal on 11 November 2009, includes the following statements:
‘2.The Palyku and Nyiyaparli entered into Land Access Agreements (LAAs) with the Grantee Party (FMG) on the 10th October 2005.
...
4.Pursuant to the terms and conditions of the LAAs the native title parties are obliged to consent to the grant and renewal of all Project Tenure by the signature of the applicants of each claim group to State Deeds or by Consent Determination in the NNTT following Mediation.
...
7.The Palyku and Nyiyaparli Working Group members are familiar with the terms and conditions of their LAAs with the Grantee party.
...
11.I am of the opinion that the Palyku and Nyiyaparli Working Groups on behalf of their respective communities consent to the grant of the tenements to the Grantee Party by Consent Determination. Due to the current sorry business arising from the death of a senior Palyku member who was closely related to the Nyiyaparli, it is culturally inappropriate and logistically difficult to finalise the grant of these tenements to the Grantee Party by State Deeds before the funeral is held and the bereavement is concluded.’
Appended to Mr Nichole’s affidavit, marked ‘RFN1’, is a copy of an email from Ms Kate Holloman, YMAC Legal Officer for Nyiyaparli, sent on 14 May 2009 to the grantee party. The email includes the following clause and definitions from the Land Access Agreement relevant to the Nyiyaparli native title party’s consent to the grant of the proposed licences:
‘Application of the FMG Land Access Agreement (LAA) 10 October 2005
A5 CONSENT TO GRANT OF PROJECT TENURE
A5.1 The Nyiyaparli People consent to the grant and renewal of all Project Tenure.
A5.2 The Nyiyaparli People must do all things reasonably required by FMG to ensure the valid and timely grant and renewal of the Project Tenure.
A5.3The Nyiyaparli People must not do anything to challenge, or which may delay or adversely affect the grant, renewal or validity of any Project Tenure.
A5.4 In respect of any Project Tenure:
(1) The grant of which may be subject to the Right To Negotiate Provisions, the Nyiyaparli People must execute and deliver State Agreements to FMG within 28 days following a request from FMG for any such State Agreement...
A1 DEFINITIONS
“Project Tenure” means “Mining Tenure” A1 (62)(c)“Mining Tenure” means any “Exploration Licence” A1 (37(a)’
Further appended to Mr Nichole’s affidavit is a copy of an email, dated 28 October 2009, from Mr Nichole to members of the Palyku working group (marked ‘RFN2’). Mr Nichole outlines the Palyku native title party’s obligations under the LAA and advises that a Consent Determination will be lodged with the Tribunal in relation to the proposed licences. I can infer from the information provided in Mr Nichole’s email that the Palyku LAA was made in comparable terms to that of the Nyiyaparli LAA.
In this matter I am satisfied that based on the evidence provided to the Tribunal, both groups are aware of their obligations under their respective LAAs, the provisions within the LAAs are applicable to the proposed licences, and that the Palyku and Nyiyaparli native title parties consent to the grant of the proposed licences and consent to a determination in the terms sought.
I have previously accepted the logistical difficulties in obtaining the signatures of all members of the Nyiyaparli native title party as a legitimate basis for seeking a consent determination (see David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd WF08/26 [2008] NNTTA 124 (2 September 2008), Daniel O’Dea, citing 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]). I am prepared to accept that the cultural considerations in relation to both native title parties deposed to by Mr Nichole in this present matter constitute such a logistical difficulty. There is nothing before me to suggest that the making of a consent determination is inappropriate. As the designated representative body under the Act, YMAC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E46/706 and E46/716 to FMG Pilbara Pty Ltd, may be done.
Daniel O’Dea
Member
19 November 2009
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