Elsa Derschow & Ors on behalf of Palyku People/David Stock and Ors on behalf of Nyiyaparli People/FMG Pilbara Pty Ltd/State of Western Australia
[2011] NNTTA 81
•11 May 2011
NATIONAL NATIVE TITLE TRIBUNAL
Elsa Derschow & Ors on behalf of Palyku People/David Stock and Ors on behalf of Nyiyaparli People/FMG Pilbara Pty Ltd/State of Western Australia [2011] NNTTA 81 (11 May 2011)
Application No: WF11/1
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
Elsa Derschow & Ors on behalf of Palyku People (WC99/16) (First native title party)
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David Stock and Ors on behalf of Nyiyaparli People (WC05/6) (Second native title party)
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The State of Western Australia (Applicant/Government party)
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FMG Pilbara Pty Ltd (Grantee party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 11 May 2011
Catchwords: Native title - future act - application for determination for the grant of exploration licences - native title party consents to whole of claim land access agreement - consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 109, 151, 253
Mining Act 1978 (WA)
Cases:Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon CJ Sumner
Hearing Date: 3 May 2011
Representatives of the Ms Kate Holloman & Mr Colin McKellar,
first and second native Yamatji Marlpa Aboriginal Corporation
title party:
Representative of the Ms Denice Johns & Mr Sukhpal Singh
grantee party: FMG Pilbara Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government Party: Ms Faye Mitchell, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 11 April 2007 the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a number of future acts, namely the granting of exploration licences in tenements, as per the Mining Act 1978 (WA), as follows:
·E45/2863, 59km W of Nullagine, 190.89km square
·E45/2864, 62km W of Nullagine, 222.55km square
·E45/2865, 68km W of Nullagine, 19.06km square
·E45/2866, 79km W of Nullagine, 123.84km square
On 14 March 2007 the Government party gave notice under s 29 of the Act of a number of future acts, namely the granting of exploration licences in tenements, as per the Mining Act 1978 (WA), as follows:
·E46/704, 50km N of Newman, 38.03km square
·E46/708, 45km W of Nullagine, 127.18km square
·E46/724, 64km SW of Nullagine, 403.13km square
·E46/72, 49km SW of Nullagine, 161.87km square
·E46/726, 52km SW of Nullagine, 60.37km square
·E46/727, 29km W of Nullagine, 194.04km square
The Palyku claim (WC99/16) covers 68.15% of the s29 notice area (E45/2863), 80.64% of the s29 notice area (E45/2864), 100% of the s29 notice area (E45/2865), 100% of the s29 notice area (E45/2866), 0.07% of the s29 notice area (E46/704), 32.99% of the s29 notice area (E46/708), 86.55% of the s29 notice area (E46/724), 32.78% of the s29 notice area (E46/725), 100% of the s29 notice area (E46/726), and 36.11% of the s29 notice area (E46/727)).
The Nyiyaparli claim (WC05/6) covers 99.92% of the s 29 notice area (E46/704), 13.45% of the s 29 notice area (E46/724), and 67.22% of the s 29 notice area (E46/725).
The registered native title claimants on behalf of the Palyku People are Mr. Frederick Stream, Ms. Elsa Derschow, Mrs. Cheryl Yuline, and Mrs. Florrie Sam.
The registered native title claimants on behalf of the Nyiyaparli People are Mr. Gordon Yuline, Mr. Raymond Drage, Mr. Victor Parker, Mr. Billy Cadigan, and Mr. David Stock.
The Future Act Determination Application lodged by the Government party states (at 10) that:
10.2The Department has been advised by Fortescue Metal Group Ltd (FMG) that a whole of claim Land Access Agreement has been entered into between FMG and the Palyku People and FMG and the Nyiyaparli People.
10.3The Department has been advised by FMG that pursuant to the agreement the Palyku People and Nyiyaparli People are contractually obliged not to lodge any objections of any description to FMG tenement applications.
The future act determination application also states (at 11) that:
The effect of the grant of the Exploration Licences on native title is that the grant of the mining tenements will not extinguish native title. Any impact on native title is addressed by the agreement between the Grantee Party and the Native Title Party.
On 30 March 2011, being a date more than six months after the s 29 notice was given, the Department of Mines and Petroleum (‘DMP’) (on behalf of the Government party), made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the granting of these exploration licences.
Attached to the application was:
·A spreadsheet showing details of tenements;
·Copy of s 29 notifications;
·Tengraph maps;
·Quick appraisal;
·Register Search; and
·Application fee.
On 28 April 2011, a minute of consent determination was lodged with the Tribunal, executed by: Rod Wahl, State Solicitor’s Office, on behalf of the Government party; Sukhpal Singh, Land Access Lawyer, on behalf of FMG; and Rodney Nichole, Deputy Principal Legal Officer, Yamatji Marlpa Aboriginal Corporation (‘YMAC’), on behalf of the first and second native title parties. The minute of consent is 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 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 45/2863, 45/2864, 45/2865, 45/2866, 46/704, 46/708, 46/724, 46/725, 46/726 and 46/727 may be done.
The Tribunal can 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 where those representatives have advised the Tribunal of the consent. YMAC is the recognised Native Title Representative Body (NTRB) under the Act for the first and second native title party and represents both native title parties in these proceedings.
I was appointed on 31 March 2011 for the purposes of determining the matter. In the absence of affidavit evidence from the native title party, a preliminary conference was held on 3 May 2011 to enable the circumstances of the consent determination to be explored and confirmed. Ms. Faye Mitchell from the DMP confirmed that a whole of claim land access agreement has been entered into between FMG and the Palyku People, and FMG and the Nyiyaparli People. She confirmed that the DMP was advised by FMG that, pursuant to the agreement, the Palyku People and Nyiyaparli People are contractually obliged not to lodge any objections of any description to FMG tenement applications. She also confirmed that the effect of the grant of the exploration on native title is that the grant of the mining tenements will not extinguish native title, and that any impact on native title is addressed by the agreement between the grantee party and the native title parties. These circumstances were confirmed by the NTRB representative of the native title parties, Mr. Colin McKellar, from the Pilbara Native Title Service (‘PNTS’) and Ms. Denise Johns, representing the grantee party. They were also confirmed by Mr. Rod Wahl from the State Solicitor’s Office.
The native title party is free to arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit. The statutory framework of the Act makes it clear that only the person or persons comprising ‘the applicant’ are authorised to bring a native title application and deal with matters arising from it (s 61(2) and s 62A). Part 2 of Division 3 of the Act, which deals with future acts, specifies that a ‘native title party’ can be the Registered Native Title Claimant, where a native title application has been accepted for registration, but not yet determined (s 29(2)). The ‘Registered Native Title Claimant’ is defined in s 253 of the Act as:
... a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.
The question for the Tribunal is whether ‘the applicant’ gives consent for the act to be done. The legal practitioner representing the native title party must be satisfied that the person or persons comprising ‘the applicant’, acting collectively, consent to the doing of the particular act.
The Tribunal is to carry out its functions in an informal and prompt way. The Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109 of the Act). No evidence has been presented in this matter contradicting that the necessary consent of ‘the applicant’ has been given. As such, the Tribunal will accept evidence from the solicitor acting for the native title parties, that the consent has been properly given, particularly also noting that the solicitor is engaged by a NTRB (Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia, NNTT WF06/10, [2006] NNTTA 22 (10 March 2006), Hon CJ Sumner at [11]).
The inquiry findings
On the basis of the information from the application, the preliminary conference and the executed minute, I am satisfied that I can adequately determine the matter without holding a further conference (s 151(2)).
In this matter I am satisfied that, based on the evidence provided to the Tribunal, the persons comprising ‘the applicant’, for both native title parties, have consented to the granting of the exploration licences, the subject of this Future Act Determination Application, and consent to a determination in the terms sought.
Determination
By consent, the determination of the Tribunal is that the act, namely the granting of exploration licences: E45/2863; E45/2864; E45/2865; E45/2866; E46/704; E46/708; E46/724; E46/725; E46/726; E46/727 may be done.
Helen Shurven
Member
11 May 2011
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