Annette Kogolo and Others on behalf of the Ngurrara People/Buru Energy Limited & Buru Energy (Acacia) Pty Ltd/State of Western Australia

[2010] NNTTA 159

NATIONAL NATIVE TITLE TRIBUNAL

Annette Kogolo and Others on behalf of the Ngurrara People/Buru Energy Limited & Buru Energy (Acacia) Pty Ltd/State of Western Australia, [2010] NNTTA 159 (30 September 2010)

Application No:               WF10/16

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

Annette Kogolo and Others on behalf of the Ngurrara People (WC96/32)
(Applicant/native title party)

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Buru Energy Limited and Buru Energy (Acacia) Pty Ltd (grantee parties)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:             Daniel O'Dea, Member

Place:  Perth
Date:  30 September 2010

Catchwords:        Native title - future act - application for determination for the grant of petroleum exploration permit - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38

Petroleum and Geothermal Energy Resources Act 1967 (WA)

Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385

Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182

Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon Christopher Sumner, Deputy President

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

Hearing date:                  22 September 2010

Representatives:

Native Title Party:          Ms Hema Hariharan, Kimberley Land Council

Grantee Parties:              Mr Tom Streitberg, Buru Energy Limited

Government party:         Mr Rod Wahl, State Solicitor’s Office

Ms Maryie Platt, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

1. On 9 September 2009, 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 petroleum exploration permit 10/08-9 EP (‘the proposed permit’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Buru Energy Limited and New Standard Energy Pty Limited. On 26 October 2009, the Government party gave an amended notice under s 29 of the Act of the grant of the proposed permit under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Buru Energy Limited and Buru Energy (Acacia) Pty Ltd (‘the grantee parties’).

2. The proposed permit comprises an area of 2,253.1 square kilometres located approximately 55 kilometres south west of Cherrabun Homestead, within the Shire of East Pilbara.  It is 100 per cent within the registered claim of the Ngurrara People (WC96/32 – registered from 22 March 1996).

3. The registered native title claimants on behalf of the Ngurrara People are:

   Ms Annette Kogolo, Mr Butcher Wise, Mr Charlie Nundun, Mr Harry Yungabun, Mr Hitler Pamba, Mr Hughie Bent, Mr Ivan McPhee, Mr Jimmy Nerrima, Mr Jimmy Pike, Mr Joe Brown, Ms Lucy Cubby, Ms Mona Chugna, Mr Percy Bulagardie, Mr Peter Clancy, Mr Peter Skipper, Mr Ronnie Jimbidie, Mr Stalin Wodigar, Mr Tommy May, Mr Warford Budjiman and Mr Wilfred Steele.

4. On 20 August 2010, 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 determination under s 38 of the Act in relation to the proposed permit (‘the application’) and requested that the future act determination be made by consent.

5. Provided to the Tribunal on 30 August 2010 is a minute of consent determination in the following terms executed by Mr Tom Streiberg on behalf of the grantee party.  Counterparts of the minute were later executed by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government party and by Mr Robert Powrie, Principal Legal Officer of the Kimberley Land Council (‘KLC’), on behalf of the native title party.  The Government party provided the Tribunal with its signed counterpart of the minute on 2 September 2010, and the native title party provided the Tribunal with its signed counterparty of the minute on 29 September 2010.  The minute is 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 section 31(1)(a) of the Native Title Act1993.

2.The Government Party, the Native Title Party and the Grantee Party have complied with the requirements of section 31(1)(b) of the Native Title Act1993.

3.The Government Party, the Native Title Party and the Grantee Party consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 10/08-9 may be done.

1. 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 KLC is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. 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).

2. Filed in response to the application on 20 September 2010 is the affidavit of Ms Hema Hariharan, Legal Officer of the KLC affirmed on 20 September 2010 in which she deposes instructions to: 

   (a)negotiate and enter into agreements for the protection of heritage and native title on traditional Ngurrara lands, on the terms and conditions contained in the KLC’s standard Heritage and Native Title Protection Agreement, as approved by the executive members of the KLC from time to time; and

   (b)do all things necessary to enter into agreement with the grantee parties who enters into a Heritage and Native Title Protection Agreement for petroleum exploration.

3. The KLC has applied for a consent determination in order to fulfil their instructions from the native title party as the KLC has stated that logistical difficulties have prevented signatures of all persons comprising the native title party being gathered on a state deed. The Government party will be unable to grant the proposed permit until a state deed is signed by all relevant signatories or a determination pursuant to section 35 of the Act is obtained from the Tribunal that the future act (namely the grant of the proposed permit) may be done.

The Inquiry

1. On 22 September 2010, the Tribunal conducted a preliminary conference attended by the representatives of the parties.  At that conference, Ms Hariharan confirmed that the named applicants of the Ngurrara native title claim, using traditional decision making processes, had authorised the KLC to enter into the Heritage and Native Title Protection Agreement for petroleum exploration with the grantee parties.

2. As Ms Hariharan is the legal representative of the native title party and an admitted legal practitioner, I accepted Ms Hariharan’s statement to me that the named applicants to the Ngurrara native title claim, using traditional decision making processes, had authorised the KLC to enter into the Heritage and Native Title Protection Agreement for petroleum exploration with the grantee parties.

3. Based upon the statement of Ms Hariharan and the consent minutes provided by the parties, I indicated that I would be willing to make the consent determination upon receipt of the signed Minute of Consent from the native title party by the Tribunal.

4. All the parties confirmed their consent to my proposal to make a consent determination upon the terms I outlined. 

Findings

1. The native title party, Government party and grantee parties confirmed their consent to the determination in the terms sought.  The native title party stated that the reason for seeking the determination was because of the difficulties in obtaining all the necessary signatures for the execution of a State Deed.

2. The affidavit of Ms Hariharan at paragraphs 2 to 9 outlines the decision-making process of the native title party in its negotiations with the grantee parties over the proposed licence.  Ms Hariharan deposes that in or about 1 May 2008 the KLC commenced negotiations with the grantee parties on behalf of the native title party.  On or about 9 July 2010 the agreement was reached and at the meeting of the native title party on 24 and 25 August 2010 the native title party unanimously accepted the agreement and instructed the KLC do all things necessary to enter into a Heritage and Native Title Protection Agreement with the grantee parties for the proposed permit.  

3. Ms Hariharan also advised me at the Preliminary Conference on 22 September 2010, and I accepted, that to her knowledge all the named applicants of the native title party, using traditional decision-making processes, had authorised the KLC to enter into the Heritage and Native Title Protection Agreement with the grantee parties for the proposed permit.

4. Ms Hariharan deposes at paragraph 10 of her affidavit that, due to the difficulties in obtaining all the necessary signatures for the execution of the State Deed, and the standing instructions on which the KLC act, the KLC proposes to enter into a consent determination to give effect to the Heritage and Native Title Protection Agreement.

5. As the designated representative body under the Act, the KLC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent, including native title parties, understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s.109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.

6. I note that at the preliminary conference on 22 September 2010, the grantee parties and the Government party raised no objection to Ms Hariharan’s evidence, or to me making a consent determination in this matter.

7. Further, the Tribunal has, on numerous occasions, held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon Christopher Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that, based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed permit and consents to a determination in the terms sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 10/08-9 EP to Buru Energy Limited and Buru Energy (Acacia) Pty Ltd, may be done.

Daniel O'Dea
Member
30 September 2010