Jeffrey James & Ors on Behalf of the Martu People (WC96/78); David Stock, Raymond Drage and Gordon Yuline on Behalf of the Nyiyaparli People (WC99/4)/Western Australia/Caldera Resources Nl and Dioro Exploration Nl

[2001] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL 

Jeffrey James & Ors on behalf of the Martu People (WC96/78); David Stock, Raymond Drage and Gordon Yuline on behalf of the Nyiyaparli People (WC99/4)/Western Australia/Caldera Resources NL and Dioro Exploration NL, [2001] NNTTA 49
(22 June 2001)

Application No: WF01/4

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 & Ors on behalf of the Martu People (WC96/78) (Applicant/native title party)

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David Stock, Raymond Drage and Gordon Yuline on behalf of the Nyiyaparli People (WC99/4) (native title party)

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State of Western Australia  (Government party)

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Caldera Resources NL and Dioro Exploration NL (grantee party)

FUTURE ACT DETERMINATION

Tribunal:         The Hon C J Sumner
Place:               Perth

Date:                22 June 2001

Catchwords:    Native title - future act - application for determination for the grant of exploration licence - consent determination that the act may be done.

Legislation:     Native Title Act 1993 (Cth), ss 31(1)(b), 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

REASONS FOR FUTURE ACT DETERMINATION

1. On 2 June 1999, the Government party gave notice pursuant to s 29(1) of the Native Title Act 1993 (Cth) (the NTA) of a future act namely the grant of exploration licence 45/2114 under the Mining Act 1978 (WA) to Caldera Resources NL and Dioro Exploration NL (the grantee party) and included a statement that it considered that the act attracted the expedite procedure.

2. The following are native title parties in respect of these proceedings:

   ·     Jeffrey James and others on behalf of the Martu People (WC96/78); and

   ·     David Stock, Raymond Drage and Gordon Yuline on behalf of the Nyiyaparli People (WC99/4).

3. Both native title parties objected to the expedited procedure. The Martu native title party entered into an agreement with the grantee party for a site clearance to be conducted and withdrew its objection. This was not an agreement of the kind mentioned in s 31(1)(b) of the NTA (a State Deed) because it did not include the Government party. In respect of the Nyiyaparli native title party objection, the parties consented to a determination that the expedited procedure was not attracted.

4. On 31 July 2000, a State Deed signed by the Nyiyaparli native title party, the Government party and the grantee party was lodged with the Tribunal.

5. On 6 June 2001, the Martu native title party made an application pursuant to s 35 of the NTA for a future act determination under s 38 which stated that the applicant consents to the act being done. It also stated that due to the cost of securing the signatures of the registered native title claimants, the applicant had been unable to finalise a State Deed.

6. At a preliminary conference convened by the Tribunal on 20 June 2001 to consider the application the above facts were confirmed by parties.  Mr Malcolm O’Dell of Dwyer Durack, Barristers and Solicitors acting for the Martu native title party informed the Tribunal that the agreed site clearance had already been undertaken jointly with the Nyiyaparli native title party.  He had previously filed a document consenting to the determination on behalf of his clients.

7. The Tribunal has recently confirmed that it can make determinations with the consent of the parties and that 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).

8. There is no impediment to a consent determination in this case.  In fact, it is essentially a technical matter.  The agreement between the Martu native title party and the grantee party for a site clearance has already been performed.  The Martu native title party is only involved in these proceedings because of the consent determination that the expedited procedure was not attracted agreed to by the parties to the Nyiyaparli native title party objection.  This is because once the Tribunal has made a determination that the expedited procedure is not attracted in relation to one objection then all other native title parties are negotiation parties and have the right to negotiate under the NTA even if their objection has been withdrawn.  To bring this matter to a conclusion there must either be a State Deed signed by all parties (the case with respect to the Nyiyaparli native title party) or a determination (the case with respect to the Martu native title party).  There is no doubt about the consent of the Martu native title party and both the Government and grantee party have also consented.  Although not strictly necessary the Nyiyaparli native title party also consented to the determination.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of exploration licence 45/2114 to Caldera Resources NL and Dioro Exploration NL may be done.

The Hon C J Sumner

Deputy President

22 June 2001