David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd

Case •

[2008] NNTTA 124

•

2 September 2008

NATIONAL NATIVE TITLE TRIBUNAL

David Stock and Others on behalf of the Nyiyaparli People/Western Australia/Adelaide Prospecting Pty Ltd, [2008] NNTTA 124 (2 September 2008)

Application No:        WF08/26

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) (Applicant/native title party)

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The State of Western Australia (Government party)

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Adelaide Prospecting Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea, Member

Place:  Perth
Date:  2 September 2008

Catchwords:  Native title – future act – application for determination for the grant of exploration licence – Alternative Heritage Agreement – logistical difficulties preclude the execution of the State Deed – native title party consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361

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

Hearing date:  22 August 2008

Counsel for the  Mr Adam Slattery

native title party:                 Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

Representatives for the       

grantee party:  Mr Rodney Joyce, Giralia Resources NL

Representative for the        Mr Domhnall McCloskey, State Solicitor’s Office
Government party:             Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

  1. On 16 June 1999, 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 E52/1414 (‘the proposed licence’) under the Mining Act 1978 (WA) to Windale Nominees Pty Ltd. Included in the notice was a statement that the Government party considered the grant attracted the expedited procedure, that is, one that can be done without the normal negotiations required by s 31 of the Act.

  2. The proposed licence comprises an area of 150.67 square kilometres and is located 45 kilometres southerly from Newman in the Shire of Meekatharra.

  3. Windale Nominees Pty Ltd, the grantee party, changed its name in 1999. The Department of Industry and Resources (‘DoIR’) Mining Tenement Register was altered on 26 May 1999 to reflect the new name of Adelaide Prospecting Pty Ltd.

  4. The native title party in respect of this proceeding and the extent to which its registered claim overlaps the proposed licence, is as follows:

  • David Stock, Gordon Yuline, Raymond Drage, Brian Samson, Victor Parker and Richard Yuline on behalf of the Nyiyaparli People (WC05/6 – registered from 29 November 2005) (‘native title party’) – 45.14 per cent overlap.

  1. The Nyiyaparli native title party’s current native title determination application (WC05/6) results from an order made by the Federal Court of Australia (‘Federal Court’) on 30 September 2005 to combine two applications. The combined applications are the Nyiyaparli (WC99/4) entered onto the Register of Native Title Claims on 22 April 1999 and the Nyiyaparli 2 People (WC05/5) filed on 1 September 2005.

  2. At the time of the issue of the s 29 notice, the proposed licence was 16.19 per cent overlapped by the registered claim of the Nganawongka, Wadjari & Ngarla (WC95/83 – registered from 19 December 1995 to 1 July 1999). On 15 January 1999 the Federal Court made an order to combine the application with the combination application Nharnuwangga Wajarri & Ngarlawangga (WC99/13 – registered from 1 July 1999 to 13 March 2002). On 28 February 2002 the Federal Court made a native title determination in relation to claim WAD72/98 (WC99/13). That determination recognised the existence of native title on parts of the claim area and dismissed the claim in relation to other parts. The area where the claim (WC99/13) overlapped the proposed licence was part of the area where the claim was dismissed. Consequently, upon that dismissal the Nharnuwangga, Wajarri & Ngarlawangga ceased to be a native title party for the purposes of the grant of the proposed licence.

  3. As noted in para [1] above, based on the assertion of the Government party that the grant of the proposed licence attracted the expedited procedure the following expedited procedure objection application was lodged with the Tribunal in response:

  • Form 4 Objection to Inclusion in an Expedited Procedure Application designated WO99/149 was lodged with the Tribunal on 9 September 1999 by Gordon Yuline and Others on behalf of the Nyiyaparli People (WC99/4). On 10 December 1999 by consent the determination of the Tribunal was that the grant of the proposed licence E52/1414 to Windale Nominees Pty Ltd is not an act attracting the expedited procedure.

  1. Following the making of the above determination, the right to negotiate under s 31 of the Act applied in respect of the proposed licence. Application for mediation assistance was sought by the Department of Industry and Resources (‘DoIR’) on 18 May 2007 and the matter designated WM07/31. The matter was finalised on 17 August 2007 on the basis that the native title party and the grantee party had entered into an Alternative Heritage Agreement.

  2. On 23 July 2008, 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 proposed licence. The native title party requested that the future act determination be made by consent.

  3. At paragraph 10 of the application, the native title party identified logistical difficulties as precluding the execution of a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act). The following was stated in support of the s 35 determination application:

    ‘The native title party consents to the proposed act being done, that is the grant of Exploration Licence 52/1414 the subject of this consent determination. The grantee party and the native title party confirm that an Alternative Heritage Agreement has been reached between them and the grantee party agrees to abide by the provisions of that agreement and that Exploration Licence 52/1414 can therefore be granted in pursuance to the consent determination.’

  4. Appended to the s 35 determination application is a minute of consent determination executed by Mr Adam Slattery, Legal Officer employed by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) on behalf of the native title party and subsequently executed in counter parts by Mr Rodney Joyce, Director, Giralia Resources NL on behalf of the grantee party and Mr Jeff O’Halloran (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 Licence 52/1414 may be done.’

  1. 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 YMBBMAC is the recognised representative body under the Act for the native title party and represents them in these proceedings via their service arm the Pilbara Native Title Services (‘PNTS’). 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

  1. On 22 August 2008 the Tribunal conducted a hearing at which all parties were represented and confirmed their consent to the determination in the terms sought. Mr Slattery advised he was satisfied that he had been properly instructed by the native title party to consent to the determination.

Findings

  1. On the basis of the signed minute of a consent determination executed by all the parties, the evidence given by Mr Slattery at the hearing and the reasons for seeking a consent determination in paragraph 10 of the application, I am satisfied that the native title party has consented to the doing of the act in accordance with the Alternative Heritage Agreement entered into with the grantee party. The Tribunal has previously accepted the statement from PNTS where logistical difficulties in obtaining signatures of the native title party to a State Deed have existed as a legitimate basis for seeking a consent determination (see 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]). As a consequence, I am satisfied that the native title party has consented to the determination.

Determination

  1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence E52/1414 to Adelaide Prospecting Pty Ltd, may be done.

Daniel O’Dea
Member
2 September 2008

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