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

[2007] NNTTA 112

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, [2007] NNTTA 112 (18 December 2007)

Application No:       WF07/39

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:               Hon C J Sumner, Deputy President

Place:  Perth
Date:  18 December 2007

Catchwords:  Native title – future act – application for determination for the grant of exploration licences and prospecting licence – executed ancillary agreements – 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

Hearing date:  7 December 2007

Solicitor for the  

grantee parties:  Mr Ken Green, Green Legal Pty Ltd

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

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

Solicitor for the  
native title party:                  Mr Justin Edwards, Pilbara Native Title Service

REASONS FOR FUTURE ACT DETERMINATION

1. On the 27 July 2005 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 E47/1300, E47/1301 and E47/1302 to Fortescue Metals Group Ltd. On 25 October 2006 the Government party gave notice under s 29 of the Act of another future act, namely the grant of prospecting licence P47/1270 to FMG Pilbara Pty Ltd.

2. Each of the four proposed licences is located in the Shire of Ashburton and is 100 per cent overlapped by the registered claim of the Puutu Kunti Kurrama and Pinikura People (WC01/5, registered from 29 November 2001).  Their size and location are as follows:-

• E47/1300 – 221.24 square kilometres, located 103 kilometres westerly of Tom Price;

• E47/1301 – 221.2 square kilometres, located 91 kilometres westerly of Tom Price;

• E47/1302 – 214.95 square kilometres, located 77 kilometres westerly of Tom Price; and

• P47/1270 – 98.54 hectares, located 74 kilometres westerly of Tom Price

1. 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 19 November 2007, 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. On 5 December 2007 the grantee parties forwarded to the Tribunal and the parties copies of two ancillary agreements executed by Mr Blair McGlen (head of Land Access) for the grantee parties and Mr Simon Hawkins (Executive Director of the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) – the relevant native title representative body under the Act) for the native title party, both entitled “Contract for Services in Relation to Exploration” and dated 5 November 2007 providing for the conduct of heritage surveys over the proposed licences. The grantee parties drew attention to clause 9 of both agreements:

   ‘Provision of State Deed

   9. If the proposed grant of any Tenement is notified in accordance with s29 of the NTA and at any time the Parties are required under s31(1) of the NTA to negotiate in good faith concerning the doing of that act, then the Applicants must:

   (a) within 5 days of any request, sign and deliver to the Grantee an agreement relating to the Tenement as contemplated by s28(1)(f) and s31(1)(b) of the NTA and otherwise in a form acceptable to the State of Western Australia; and

   (b)   support and consent to any application to the National Native Title Tribunal for a determination that the Tenement be granted without conditions.’

3. On 7 December 2007 a preliminary conference was held at which Mr Justin Edwards, legal officer of the Pilbara Native Title Service (‘PNTS’, being the Pilbara service arm of Yamatji) and solicitor for the native title party, advised that the native title party’s working group meeting was scheduled for 14 and 15 December 2007 and instructions would be sought at that meeting in relation to whether to proceed by way of a State Deed (s 31(1)(b) agreement) or consent determination. By consent I made directions for the conduct of an inquiry, requiring parties to provide contentions and evidence and setting dates for hearings. I also directed that by 17 December 2007 the solicitor for the native title party advise the outcome of the working group meeting, being whether; a) State Deeds had been executed in respect of the proposed licences; b) instructions had been received to proceed to a consent determination; or c) a contested determination would be required in accordance with the directions for the conduct of an inquiry.

4. On 17 December 2007 the solicitor for the native title party advised that the native title party “resolved at a claimant meeting on Saturday 15 December 2007 to proceed with a consent determination under section 38 of the NTA in relation to P47/1270 and E47/1300 – 1302”.  A minute of a consent determination in the following terms was provided to the Tribunal, executed by Mr Edwards on behalf of the native title party, Mr Ken Green, solicitor, on behalf of the grantee parties and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH) IN RELATION TO THE GRANT UNDER THE MINING ACT 1978 (WA) OF E47/1300, E47/1301, E47/1302 and P47/1270

   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 E47/1300, E47/1301, E47/1302 and P47/1270 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 E47/1300, E47/1301, E47/1302 and P47/1270 under the Mining Act 1978 (WA), may be done.’

5. 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 the basis that the solicitor for the native title party advised the Tribunal that the native title party had at its claimant meeting resolved to consent to the determination and subsequently forwarded a signed a 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 PNTS on whether the appropriate consent has been given by the native title party and there is nothing to suggest the contrary.  

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E47/1300, E47/1301 and E47/1302 to Fortescue Metals Group Ltd and prospecting licence P47/1270 to FMG Pilbara Pty Ltd, may be done.

Hon C J Sumner
Deputy President
18 December 2007