Delores Cheinmora and Others on behalf of Balanggara People/Western Australia/Striker Resources Nl

[2003] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Delores Cheinmora and Others on behalf of Balanggara People/Western Australia/Striker Resources NL, [2003] NNTTA 14 ( 11 February 2003)

Application No:        WF03/1 (M80/526)

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

Delores Cheinmora, Vernon Gerrard, Dudley Bambra, Elaine Johnstone, Eric Johnstone, Joyce Evans, Clara (Leara) Mitchell, Mary Terese (Taylor), May Smith, Mona Williams, Raymond Williams, Roy Martin, Victor Martin on behalf of the Balanggara People WC95/30
  (Applicant/native title party)

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Striker Resources 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:  11 February 2003

Catchwords:    Native title - future act - application for determination for the grant of a mining lease - 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 C J Sumner, 22 June 2001

Hearing Date:                 11 February 2003

Counsel for the

native title party:            Mr Philip Hope, Kimberly Land Council

Representative of the

grantee party:                 Mr Matthew Clohessy, Emerald Tenement Services

Representatives of the     Mr Trevor Crewell, Crown Solicitor’s Office

Government party:         Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 6 February 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 lease M80/526 (‘the mining lease’), under the Mining Act 1978 (WA) to Striker Resources NL (‘the grantee party’).

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

Delores Cheinmora, Vernon Gerrard, Dudley Bambra, Elaine Johnstone, Eric Johnstone, Joyce Evans, Clara (Leara) Mitchell, Mary Terese (Taylor), May Smith, Mona Williams, Raymond Williams, Roy Martin, James Taylor, Victor Martin on behalf of the Balanggarra People WC95/30.

1. On 9 January 2003, 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 mining lease.

2. The applicant has requested a consent determination that the act may be done.  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).

3. On 11 February 2003, the Tribunal conducted a hearing.  The mining lease is the subject of an agreement - Agreement relating to Native Title Heritage, Culture, Environment, Training, Employment, Exploration, Mining and Liaison between Balanggara and Striker (‘the Agreement’) (parts of which are attached to the Form 5 application) - which allows for the grant of the mining lease (M80/526).  Clause 5 of the Agreement (attached as  Annexure “CD1”), provides that Striker not oppose Native Title in the claim area, and that Striker accepts that the non-extinguishment principle applies over mining leases in the claim area.  Clause 7 of the Agreement (attached as  Annexure “CD2”), provides for cultural heritage clearances prior to any exploration or mining activity taking place within the claim area.  Clause 18 of the Agreement (attached as  Annexure “CD3”), allows the Native Title party to enter or occupy any Aboriginal land within the agreement area provided that the Aboriginal person does not interfere with the conduct of exploration and mining, and allows the Native Title Party to use roads and airstrips with the prior permission of Striker. Clause 18.4 provides that Striker will take all reasonable steps to minimize interference with the movement of Aboriginal persons throughout the Agreement area.

4. A State Deed (agreement of the kind mentioned in s 31(1)(b) of the Act) has not been executed by all of the negotiation parties. Seven of the registered native title claimants are deceased but there has been difficulty in obtaining Death Certificates to verify this situation, so that a State Deed can be finalised. It is for this reason that a consent determination is sought.

5. 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 s31(1)(a) of the Native Title Act 1993.

   2.The Government Party, the Grantee Party and the Native Title Parties have complied with the requirements of s31(1)(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 mining lease M80/526 may be done pursuant to the agreement entitled “Agreement relating to Native Title, Heritage, Culture, Environment, Training, Employment, Exploration, Mining and Liaison between Balangarraa and Striker ” dated 20th August 1997.

6. At the hearing all parties through their representatives, Mr Philip Hope counsel for the native title party (Kimberly Land Council), Mr Matthew Clohessey, the grantee party representative and Mr Trevor Crewell of the Crown Solicitor’s Office for the Government party, confirmed their consent to the determination in a modified form (see below).  I am satisfied on the evidence provided that the native title party consents to a determination that the act may be done.  The grant of the mining lease will be subject to a comprehensive agreement between the native title party and grantee party (parts of which are described above) which among other things seeks to protect the enjoyment of the native title party’s registered native title rights and interests and sites of particular significance to them.

7. The agreement also contains provisions for compensation (not attached to the Form 5) if mining occurs. The consent determination which was sought in the document signed by the parties seeks to make the Agreement a condition of the determination. As the Tribunal has not seen the full text of the Agreement it can not decide whether it is within its power to make the terms of the Agreement conditions of the determination. On the face of it the clauses in the Agreement relating to compensation in the event of mining could not be made conditions of the determination as the Tribunal only has power to impose a condition for an amount to be paid into trust (s 41(3) of the Act ) on account of a future determination of compensation following a determination recognising native title. In these circumstances, all parties agreed to a simple determination that the act may be done without conditions. The native title party and grantee party acknowledge that, on the grant of the mining lease, they will be bound by the Agreement.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of mining lease M80/526 to Striker Resources NL, may be done.

Hon C J Sumner
Deputy President

11 February 2003