Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd/Western Australia/Angelina Cox & Ors on behalf of Puutu Kunti Kurrama and Pinikura People

[2008] NNTTA 56

NATIONAL NATIVE TITLE TRIBUNAL

Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd/Western Australia/Angelina Cox & Ors on behalf of Puutu Kunti Kurrama and Pinikura People, [2008] NNTTA 56 (29 April 2008)

Application No:        WF08/17

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

Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd (Applicant/grantee parties)

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The State of Western Australia (Government party)

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Angelina Cox & Ors on behalf of Puutu Kunti Kurrama and Pinikura People (WC01/5) (native title party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O’Dea

Place:  Perth
Date:  29 April 2008

Catchwords:  Native title – future act – application for determination for the grant of exploration licences – ancillary agreement – native title party consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38

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

Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd/Western Australia/Angelina Cox & Ors on behalf of Puutu Kunti Kurrama and Pinikura People, NNTT WF07/39 [2007], NNTTA 112 (18 December 2007), The Hon CJ Sumner

Hearing date:  29 April 2008

Representative for the         

grantee parties:  Ms Briony McGinty, Fortescue Metals Group Ltd

Representatives for the       Mr Rod Wahl, State Solicitor’s Office

Government party:              Ms Paola O’Neill, Department of Industry and Resources

Representative for the         
native title party:                 Mr Rodney Nichole, Pilbara Native Title Service

REASONS FOR FUTURE ACT DETERMINATION

1. On the 27 July 2005 and the 18 January 2006 respectively, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of exploration licences E47/1299 to Fortescue Metals Group Ltd and E47/1395 to FMG Pilbara Pty Ltd.

2. E47/1299 and E47/1395 (‘the proposed licences’) are located 104 kilometres southerly of Pannawonica in the Shire of Ashburton and are 100 per cent covered by the registered claim of the Puutu Kunti Kurrama and Pinikura People (WC01/5, registered from 29 November 2001).  E47/1299 comprises 221.35 square kilometres and E47/1395 comprises 15.8 square kilometres.

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

• Angelina Cox, Angie Cox, Annabelle Stewart, Arness James, Charleston Cox, Chloe Hayes, Darryl Hughes, Gary Hughes, Harold Ashburton, Lily Mackay, Maudie Dowton, Mitchell Drage and Maurice Daublin on behalf of the Puutu Kunti Kurrama and Pinikura People (WC01/5)

1. On 18 April 2008, being a date more than six months after the s 29 notice was given, Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd (‘the grantee 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.

2. At paragraph 10 of the application, the grantee parties stated that an ancillary agreement had been reached with the native title party “however, the Native Title claimants advise that the signing of the State Deed [s 31(1)(b) agreement] is not practical in these circumstances. The parties have agreed to apply for a future act determination by consent.” Attached to the application is a draft minute of a consent determination in the following terms signed by Mr Shahzad Rind of the Pilbara Native Title Service (‘PNTS’) on behalf of the native title party, Ms Briony McGinty on behalf of the grantee parties and subsequently by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party:

   ‘Consent Determination under s38 of The Native Title Act 1993 (Cth) in relation to the Grant under the Mining Act 1978 (WA) of E47/1299 and E47/1395

   We, the solicitors for the parties, consent to the following determinations being made in relation to the acts the subject of this application, namely the proposed grant of E47/1299 and E47/1395 under the Mining Act 1978 (WA):

   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 have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

   3.     The acts, namely the grant of E47/1299 and E47/1395 under the Mining Act 1978, may be done.’

3. 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 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 and findings in relation to the native title party

1. On 29 April 2008 a hearing was held at which all parties were represented. Mr Rodney Nichole, PNTS legal officer, representing the native title party confirmed that he had received instructions to consent to this application. On the basis of this advice and the signed minute of a consent determination, I am satisfied that the native title party has consented to the doing of the act.  As the native title representative body for the Pilbara region and for the native title party, the Tribunal is entitled to accept as evidence the advice of the PNTS on whether the appropriate consent has been given by the native title party and there is nothing to suggest the contrary.  The Tribunal has dealt with related matters in Fortescue Metals Group Ltd and FMG Pilbara Pty Ltd/Western Australia/Angelina Cox & Ors on behalf of Puutu Kunti Kurrama and Pinikura People, NNTT WF07/39 [2007], NNTTA 112 (18 December 2007), The Hon CJ Sumner.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licence E47/1299 to Fortescue Metals Group Ltd and exploration licence E47/1395 to FMG Pilbara Pty Ltd, may be done.

Daniel O’Dea
Member
29 April 2008