Destra Corporation Ltd (formerly Sand Queen Gold Mines Nl)/Western Australia/ Mr Alan Jones and others on behalf of the Ballardong People

[2003] NNTTA 110

NATIONAL NATIVE TITLE TRIBUNAL

Destra Corporation Ltd (formerly Sand Queen Gold Mines NL)/Western Australia/ Mr Alan Jones and others on behalf of the Ballardong People, [2003] NNTTA 110 (11 November 2003)

Application No:        WF03/19

IN THE MATTER of the Native Title Act 1993 (Cth)

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Destra Corporation Ltd (formerly Sand Queen Gold Mines NL) (Applicant/grantee party)

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The State of Western Australia (Government party)

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Mr Alan Jones and others on behalf of the Ballardong People (WC97/56)
(native title party)

FUTURE ACT DETERMINATION

Tribunal:                  The Hon C J Sumner, Deputy President

Place:  Perth
Date:  11 November 2003

Catchwords:             Native title – future act – application for determination for the grant of exploration licences – 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 CJ Sumner, 22 June 2001

Hearing date:            7 November 2003

Counsel for the

native title party:     Ms Wendy Treasure, South West Aboriginal Land and Sea Council

Representative of the

Grantee party:          Mr Kevin Schultz, Eclipse Minerals Ltd

Representative of the

Government party:  Ms Leanne Morgan, Crown Solicitor’s Office

Ms Faye Mitchell, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

1. On 27 May 1998 and 24 June 1998, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act respectively in relation to the grant of exploration licences E77/862 and E77/864 under the Mining Act 1978 (WA) to Sand Queen Gold Mines NL – now Destra Corporation Ltd (‘the grantee party’).

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

• Mr Alan Jones, Mr Alec Yarran, Mr Cedric Anderson, Mr Doug Nelson, Mr Reg Hayden, Mr Reg Yarran, Mr Rickie Nelson, Mr Robert Riley, Mr Robin Yarran, Mr Saul Yarran, Mr Tim Riley, Mr William Riley, Ms Dianne Taylor and Ms Winnie McHenry on behalf of the Ballardong People (WC97/56).

1. On 24 October 2003, being a date more than six months after the s 29 notice was given, Eclipse Minerals Ltd (merged with Polaris Metals NL) on behalf of Destra Corporation Ltd (formerly Sand Queen Gold Mines NL) made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act that the act, being the grant of exploration licences 77/862 and 77/864 may be done.

2. The National Native Title Tribunal (‘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 7 November 2003 the Tribunal conducted a hearing.  The parties confirmed their consent to a determination that the future act may be done in terms of a minute submitted jointly by the parties.  The native title party is represented by the South West Aboriginal Land and Sea Council.

4. The consent determination minute said:

   ‘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 77/862 & 77/864 may be done.’

5. The application sets out that in relation to the act a Heritage Protection Agreement (not sighted by the Tribunal) has been executed by all the named Applicants save for Mr Robin Yarran, and says that the reasons for his not signing are unclear (see para 10 of the application).  At the hearing Ms Treasure for the native title party advised that Robin Yarran’s refusal to sign this agreement was consistent with his general practice.  The Tribunal notes that this attitude was demonstrated in Portman Iron Ore Limited/Alan Jones and others (Ballardong People); Carlene Sceghi and Others (Central West Goldfields People)/Western Australia, NNTT WF02/16, Hon C J Sumner, 8 July 2002 where the Tribunal made a determination that a future act could be done despite Robin Yarran’s refusal to sign an agreement relating to it.  I also refer to and rely on the Tribunal’s decision in Robin John Yarran on behalf of the Ballardong; Reg Yarran and Reg Hayden on behalf of the Ballardong/Hamill Resources Ltd & others/Western Australia, NNTT WO01/187 et al, Hon C J Sumner, 11 September 2003, in which the Tribunal accepted that Mr Robin Yarran lacked authorisation to represent the claim group in relation to expedited procedure objections.

6. In addition further evidence has been submitted in relation to consent, particularly copies of letters signed by the named native title applicants, save for Robin Yarran namely, Allan Jones, Cedric Anderson, Doug Nelson, Reg Hayden, Reginald Yarran, Ricky Nelson, Robert Riley, Saul Yarran, Tim Riley, Dianne Taylor and Winnie McHenry.  The letter is identical for each party and sets out that they:

   ‘still agree to the grant of an Exploration Licence applied for by Polaris Metals, EL77/862 & EL77/864, despite Mr Robin Yarran’s refusal to sign and I support the Native Title Tribunal making a determination to allow the grant of the licences without Mr Yarran’s signature.’

7. The application also sets out at para 11 that the effect of the grant of the act would not extinguish native title and any impact on native title will be minimised by the parties abiding by the Heritage Protection Agreement.  At the hearing Ms Treasure agreed with this assertion.  I note that the act referred to is the grant of exploration licences.  The applicant has otherwise chosen not to give further evidence to show the effect of the act on the area of land and waters as it is claimed an agreement has been reached which has conditions, not disputed by the native title party, that protect the claimant’s cultural heritage (see para 12 of the application).

8. Despite Mr Yarran refusing to sign the Heritage Protection Agreement and the State Deed I am satisfied that the native title party consents to the determination in the terms set out in the above minute.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licences E77/862 and E77/864 to Destra Corporation Ltd (formerly Sand Queen Gold Mines NL), may be done.

Hon C J Sumner

Deputy President

11 November 2003