Jeffrey James and Others on behalf of the Martu People (WC96/78)/Straits (Nifty) Pty Ltd/Western Australia

[2002] NNTTA 184

NATIONAL NATIVE TITLE TRIBUNAL

Jeffrey James and Others on behalf of the Martu People (WC96/78)/Straits (Nifty) Pty Ltd/Western Australia, [2002] NNTTA 184 (21 August 2002)

Application No:        WF02/19

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

Jeffrey James and Others on behalf of the Martu People (WC96/78) (Native title party)

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Straits (Nifty) Pty Ltd (ACN 074 145 636) (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:  21 August 2002

Catchwords:    Native title - future act - application for determination for the grant of exploration licences - consent determination that the acts 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:                 20 August 2002

Counsel for the

native title party:            Mr Malcolm O’Dell, Dwyer Durack, Lawyers

Representative of the

grantee party:                 Mr Phillip Davidson, Straits (Nifty) Pty Ltd

Counsel for the               

Government party:         Mr Mark DiRenzo, Crown Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On 8 September 1999, 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 E45/2150, E45/2151, E45/2152, E45/2153, E45/2154, E45/2155, E45/2156 and E45/2157 (‘the exploration licences’), under the Mining Act 1978 (WA) to Straits (Nifty) Pty Ltd (‘the grantee party’).

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

• Ben Odapanie, Billy Dunn, Colin Peterson, Frank French, Grant Judson, Jeffrey James, Kenny Thomas, Kevin Fred, Lindsay Hardcase, Mack Gardener, Neil Pitu, Pincher Rubin, Rowley (Roley) Williams, Teddy Biljabu, Tommy Watson, Dulcie Gibbs, Lola Walker, Nancy Paterson, Nancy Taylor, Patricia Fry, Pukina Burton (Martu – Registered Native Title Claim No WC96/78).

1. On 30 July 2002, 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 above exploration licences. An amended application was filed on 1 and 13 August 2002. The exploration licences are subject to the normal negotiations required by s 31(1)(b) of the right to negotiate provisions of the Act. The Tribunal had previously determined that the expedited procedure was not attracted (WO99/602).

2. 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon C J Sumner, 22 June 2001).

3. On 20 August 2002, the Tribunal conducted a hearing. The parties consent to a determination that the exploration licences may be granted. Agreement has been reached by the negotiation parties to the doing of the future act and normally a State Deed (an agreement of the kind mentioned in s 31(1)(b)) would be executed by all parties to facilitate the granting of the exploration licences. However, given the difficulty of obtaining the signature of each of the registered native title claimants due to the costs and inconvenience involved because they are located over a considerable area the native title party has, through the Ngaanyatjarra Council, instructed Dwyer Durack Lawyers to assist in expediting the grant of the exploration licences by seeking a future act consent determination. The Ngaanyatjarra Council is the Native Title Representative Body under the Act for the area of the Martu claim.

4. The representatives of all parties have signed a document in the following terms:

   ‘CONSENT TO A DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT

   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 Grantee Party and the Native Title Party have complied with the requirements of s 31(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(1)(b) of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licences E45/2150, E45/2151, E45/2152, E45/2153, E45/2154, E45/2155, E45/2156 and E45/2157 to Straits (Nifty) Pty Ltd, may be done.’

5. At the hearing all parties through their representatives, Mr Malcolm O’Dell counsel of the native title party, Mr Phillip Davidson for Straits (Nifty) Pty Ltd and Mr Mark DiRenzo (Crown Solicitor’s Office) counsel for the Government party, confirmed their consent to the determination requested. At the hearing Mr O’Dell informed the Tribunal and I accept that these exploration licences are the subject of an agreement with the grantee party which provides for a heritage survey to be conducted after the grantee party has given notice of its intention to undertake exploration work. Accordingly, there is unlikely to be any interference with sites of particular significance to the native title party in accordance with their traditions, which is one of the criteria to be taken into account under s 39 of the Act in making a determination.

Determination

1. By consent the determination of the Tribunal is that the acts, namely the grant of exploration licences E45/2150, E45/2151, E45/2152, E45/2153, E45/2154, E45/2155, E45/2156 and E45/2157 to Straits (Nifty) Pty Ltd, may be done.

Hon C J Sumner
Deputy President

21 August 2002