Western Australia/David Stock and Others on behalf of the Nyiyaparli People/FMG Pilbara Pty Ltd

[2011] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/David Stock and Others on behalf of the Nyiyaparli People/FMG Pilbara Pty Ltd, [2011] NNTTA 4 (2 February 2011)

Application No:        WF10/29

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

The State of Western Australia (Applicant/Government party)

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David Stock and Others on behalf of the Nyiyaparli People (WC05/6) (native title party)

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FMG Pilbara Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Neville MacPherson, Member

Place:  Perth
Date:  2 February 2011

Catchwords:  Native title – future act – application for determination for the grant of exploration licences – logistical difficulties preclude the execution of the State Deed – native title party as a whole consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151(2)

Cases:David Stock and Others on behalf of the Nyiyaparli People/Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd/Western Australia, NNTT WF10/7, [2010] NNTTA 74 (1 June 2010), Neville MacPherson

David Stock and Others on behalf of the Nyiyaparli People/Western Australia/FMG Pilbara Pty Ltd, NNTT WF09/25, [2009] NNTTA 151 (19 November 2009), Daniel O’Dea

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

Hearing date:  Determined on the papers.

Solicitor for the  Ms Maimbo Chilala, Yamatji Marlpa Aboriginal Corporation

native title party:                 Ms Kate Holloman, Yamatji Marlpa Aboriginal Corporation

Solicitor for the  

grantee party:  Mr Sukhpal Singh, Fortescue Metals Group Pty Ltd

Representatives for the       
Government party:              Ms Faye Mitchell, Department of Mines and Petroleum Solicitor for the
Government party               Mr Rod Wahl, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On the dates specified below, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of future acts, namely, the grant of exploration licences listed below (‘the proposed licences’) under the Mining Act 1978 (WA) to FMG Pilbara Pty Ltd (‘the grantee party’):

   • E47/1387, E47/1388 – 16 November 2005
   • E52/1937, E52/1977 – 11 April 2007
   • E52/2113, E52/2114 – 4 July 2007
   • E46/694, E46/695, E46/696, E46/697, E46/698, E46/699, E46/700, E46/701, E46/702, E46/703, E46/715, E46/728, E46/729 – 14 March 2007
   • E52/2264 – 19 November 2009
   • E46/776 – 28 January 2009

1. The registered native title claim of the Nyiyaparli People (WC05/6) overlaps the proposed licences by 100 per cent.     E52/2114 is located in the Shires of East Pilbara and Meekatharra. E52/2264 is located in the Shire of Meekatharra.  The remaining 19 proposed licences, E47/1387, E47/1388, E52/1937, E52/1977, E52/2113, E46/694, E46/695, E46/696, E46/697, E46/698, E46/699, E46/700, E46/701, E46/702, E46/703, E46/715, E46/728, E46/729, E46/776, are located in the Shire of East Pilbara.  The area and location of each proposed licence are as follows:

• E47/1387 - 196.53km2; 86km north of Newman

• E47/1388 - 120.18km2; 74 km north of Newman

• E52/1937- 116.4km2; 34 km south of Newman

• E52/1977 - 154.09km2; 43km south of Newman

• E52/2113 - 28.31km2; 25km southwest of Newman

• E52/2114 - 78.65km2; 36km west of Newman

• E46/694 - 214.24km2; 14km south of Newman

• E46/695 - 220.74km2; 11km west of Newman

• E46/696 - 220.98km2; 20km northwest of Newman

• E46/697 - 221.02km2; 19km southwest of Newman

• E46/698 -220.91km2; 21km south of Newman

• E46/699 – 221.08km2; 6km southeast of Newman

• E46/700 – 221.1km2; 19km east of Newman

• E46/701 – 221.01km2; 32km east of Newman.

• E46/702 - 221.36km2; 13km northeast of Newman.

• E46/703 – 25.35km2; 48km north of Newman.

• E46/715 - 135.57km2; 17km east of Newman.

• E46/728 - 212.43km2; 64km south of Nullagine.

• E46/729 – 201.6km2; 22km southeast of Newman.

• E52/2264 - 122.66km2; 33km southeast of Newman.

• E46/776 – 253.43km2; 47km northwest of Newman.

  
  
  

1. The native title party in respect of this proceeding is Mr Gordon Yuline, Mr Raymond Drage, Mr Victor Parker, Mr Billy Cadigan, and Mr David Stock on behalf of the Nyiyaparli People (WC05/6 – registered from 29 November 2005) (‘the native title party’). 

2. On 1 October, 2010, being a date more than six months after the s 29 notice was given, the Department of Mines and Petroleum made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed licences.

3. At paragraph 10 of the application, it is stated that the negotiation parties have been unable to execute a formal agreement pursuant to s 31(1)(b) of the Act in respect of the proposed licences. Furthermore, it is said that the Government party understands that the native title party and the grantee party have entered into a Land Access Agreement about the future acts.

4. In support of the s 35 determination application, a minute of consent determination was executed in counterpart by Ms Maimbo Chilala, Claim Lawyer employed by the Yamatji Marlpa Aboriginal Corporation (‘YMAC’), on behalf of the native title party, Mr Sukhpal Singh, Land Access Lawyer, FMG Pilbara Pty Ltd, on behalf of the grantee party, and Mr Rod Wahl, Senior Managing Law Clerk, State Solicitor’s Office, on behalf of the Government party, made in the following terms:

‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)

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

3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licences 46/694 to 46/703, 46/715, 46/728, 46/729, 46/776, 47/1387 to 47/1388, 52/1937, 52/1977, 52/2113, 52/2114 and 52/2264 may be done.’

1. 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. YMAC is the recognised representative body under the Act for the native title party and represents them in these proceedings, via their service arm, the Pilbara Native Title Services (‘PNTS’). 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

1. All parties agreed that the determination could be made on the papers. On the basis of the information contained in the application, the affidavit provided by the native title party, and the executed Minute of Consent, I am satisfied that I can adequately determine the matter on the papers without a hearing (s 151(2)).

2. The affidavit of Maimbo Chilala, lawyer at YMAC acting for the native title party, was lodged in support of the application for a future act determination. The affidavit was affirmed on 6 December 2010. Ms Maimbo Chilala attests and includes the following statements:

   ‘9.The Nyiyaparli Claim Group has authorised 14 members of the Nyiyaparli Claim Group to deal with day to day matters arising from the Nyiyaparli Claim including dealing with matters relating to Aboriginal heritage and exercising procedural rights pursuant to Part 2 Division 3 of the Native Title Act 1993 (Cth). Those persons are known as the Nyiyaparli working group.

   ...
   
   

   11.Decisions made by the Nyiyaparli working group are authorised at a duly convened community meeting of the Nyiyaparli people.

   12.I have seen the Land Access Agreement (‘LAA’) between the Nyiyaparli People, Fortescue Metals Group Ltd, The Pilbara Infrastructure Pty Ltd and FMG Chichester Pty Ltd (together FMG) entered into on 10 October 2005. The LAA was executed by all members of the applicant following recommendation by the then Working Group and authorisation at a community meeting.

   13.The LAA is a Claim wide agreement which provides for, amongst other things, aboriginal cultural heritage protection, and compensation for the grant of all ‘Project Tenure’ as defined in the LAA including, from time to time, the grant of Exploration Licences.. The LAA provides for the grant of ‘Project Tenure’ to FMG and any Related Body Corporate.

   14.We are advised by the Grantee Party that FMG Pilbara Pty Ltd (ACN 106 943 828) is a wholly-owned subsidiary of Fortescue Metals Group Ltd (ACN 002 594 872) and therefore a Related Body Corporate of FMG.

   15.Due to a range of logistical challenges, namely, the inability to physically locate the members comprising the current Nyiyaparli applicant; the great distances involved and the impeding onset of lore business, the Native Title Party is unable to produce a fully executed State Deed to the Grantee and Government parties.

   16.I am satisfied that the authorisation given by the community to the applicant to do all things necessary to ensure grant of project tenure referred to in the LAA, including the execution of all necessary documents for the purposes of the grant of any Project Tenure, continues.’

Findings

1. The Tribunal is entitled to accept the evidence of YMAC’s legal representative on whether appropriate consent has been given by the native title party. There is nothing in the papers before me to suggest the contrary. I therefore adopt the findings in David Stock and Others on behalf of the Nyiyaparli People/Western Australia/FMG Pilbara Pty Ltd, NNTT WF09/25, [2009] NNTTA 151 (19 November 2009), Daniel O’Dea, at para [15], in relation to the responsibilities of the recognised representative body for the region, and the Tribunal’s own responsibilities under s 109 of the Act.

2. The Tribunal has previously accepted logistical difficulties in obtaining signatures of the native title party to a State Deed as a legitimate basis for seeking a consent determination (see David Stock and Others on behalf of the Nyiyaparli People/Hamersley Resources Ltd, Hancock Prospecting Pty Ltd and Wright Prospecting Pty Ltd/Western Australia, NNTT WF10/7, [2010] NNTTA 74 (1 June 2010), Neville MacPherson, and cases sited therein at [14])

3. On the basis of the evidence provided in this matter, I am satisfied that the native title party as a whole has consented to the doing of the acts in accordance with the Land Access Agreement entered into with the grantee party.

Determination

1. By consent, the determination of the Tribunal is that the act, namely, the grant of exploration licences 46/694 to E46/703, 46/715, 46/728, 46/ 729, 46/776, 47/1387, 47/1388, 52/1937, 52/1977, 52/2113, 52/2114 and 52/2264 to FMG Pilbara Pty Ltd, may be done.  

Neville MacPherson
Member