Northern Territory/Johnny Barber Kngwarrey and Billy Cook Apetyarr/De Beers Australia Exploration Ltd

[2003] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Northern Territory/Johnny Barber Kngwarrey and Billy Cook Apetyarr/De Beers Australia Exploration Ltd, [2003] NNTTA 77 (2 July 2003)

Application No:        DF03/1

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

Northern Territory of Australia  (Applicant /Government party)

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Johnny Barber Kngwarrey and Billy Cook Apetyarr  (Native title party)
(DC01/42)

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De Beers Australia Exploration Ltd  (Grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Darwin

Date:  2 July 2003

Catchwords:    Native title - future act - application for determination for the grant of mining leases - consent determination that the act 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

Silver v Northern Territory of Australia (2002) 169 FLR 1.

Hearing Date:                 1 July 2003

Representatives of the

grantee party:                 Mr Brett Anderson, Tenement Manager

Counsel for the

native title party:            Mr Greg Borchers, Central Land Council

Counsel for the               

Government party:         Mr Matthew Storey, Solicitor for the Northern Territory

REASONS FOR FUTURE ACT DETERMINATION

1. On 4 April 2001, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of an Exploration Licence EL22505, under s 163 of the Mining Act 1980 (NT), to De Beers Australia Exploration Ltd. 

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

• Johnny Barber Kngwarrey and Billy Cook Apetyarr on behalf of the Alyawarr Aboriginal People (DC01/42).

1. On 30 June 2003, being a date more than six months after the s 29 notice was given, 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 above exploration licence.

2. In the application, the Government party requested the Tribunal to make a determination with the consent of all parties.  The Tribunal has 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 1 July 2003, the Tribunal conducted a hearing.  I accept that the grantee and native title parties reached an ancillary agreement regarding the grant of the exploration licence on 21 May 2003.  The ancillary agreement takes the form of an agreement regarding operations under the licence.  

4. The parties subsequently agreed to the form of a Tripartite Deed (a s 31(1)(b) agreement) which was to be executed by all parties to facilitate the grant of the exploration licence.  However, given the demands imposed by the desire to commence operations this drilling season, the difficulty and delay frequently experienced in obtaining signatures from registered claimants and the diversion of limited Representative Body (Central Land Council) resources this process requires, the parties subsequently agreed to seek a determination by consent that the act is an act which can be done without conditions.

5. The native title party and grantee party have by letter advised the Tribunal of their consent to the determination sought.

6. At the Hearing all parties through their representatives, Mr Greg Borchers, counsel for the native title party, Mr Brett Anderson of De Beers for the grantee party, and Mr Matthew Story, Solicitor for the Northern Territory confirmed their consent to the Determination requested.  I am satisfied on the evidence provided that the native title party consents to the determination and that the exploration agreement on 21 May 2003 has dealt with issues relating to the effect upon the native title party’s registered native title rights and interests in the exercise by De Beers of the rights granted to it as the holder of an exploration licence under the Mining Act to their satisfaction. Standard Conditions will also be imposed by the Government party to minimise the impact of exploration on the native title rights and interests of the native title party and other matters referred to in s 39(1)(a) of the Act (see discussion of these conditions and the Northern Territory regime for the protection of Aboriginal sites in Silver v Northern Territory of Australia (2002) 169 FLR 1).

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Exploration Licence EL22505 to De Beers Australia Exploration Ltd, may be done.

Hon C J Sumner
Deputy President
2 July 2003