Annette Kogolo and Others on behalf of the Ngurrara People/Daisy Lungunan and Others on behalf of Nyikina and Mangala/Arc Energy Limited/State of Western Australia - [2010] NNTTA 178

NATIONAL NATIVE TITLE TRIBUNAL

Annette Kogolo and Others on behalf of the Ngurrara People/Daisy Lungunan and Others on behalf of Nyikina and Mangala/Arc Energy Limited/State of Western Australia, [2010] NNTTA 178 (5 November 2010)

Application No: WF10/22

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) and Daisy Lungunan and Others on behalf of Nyikina and Mangala (WC99/25) (native title parties)

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Arc Energy Limited (grantee party)

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The State of Western Australia (Applicant/Government party)

FUTURE ACT DETERMINATION

Tribunal: Daniel O'Dea, Member

Place: Perth
Date: 5 November 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:Annette Kogolo and Others on behalf of Ngurrara People/Buru Energy Limited and Buru Energy (Acacia) Pty Ltd/State of Western Australia, NNTT WF10/16 [2010] NNTTA 159 (30 September 2010) Daniel O’Dea, Member
Arc Energy NL and Kimberley Oil NL/State of Western Australia/Ngurrara Peoples and Nyikina and Mangala Peoples [2004] NNTTA 22 (5 April 2004) Hon. E.M. Franklyn QC, Deputy President
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 CJ Sumner, Deputy President
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date:                  Determined on the papers
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

On 13 February 2008, 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 3/07-8 EP (the proposed permit) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Arc Energy Limited (the grantee party).
The proposed permit comprises an area of 9,855.9 square kilometres located between Dampier Downs and Millajiddee Stations, within the Shires of Derby/West Kimberley (78%), East Pilbara (20%) and Broome (2%). It is 89.58% within the registered claim of the Ngurrara People (WC96/32 – registered from 22 March 1996) and 5.57% within the registered claim of the Nyikina and Mangala (WC99/25 – registered from 28 September 1999).
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.
The registered native title claimants on behalf of the Nyikina and Mangala are:
Mr Anthony Watson, Ms Daisy Lungunan, Mr David Watson, Mr Del Roe, Ms Elizabeth Riley, Mr George Riley, Mr James Watson, Mr John Watson, Mr Lionel Jumburra, Ms Lucy Marshall, Ms Mary Watson, Ms Maude Ningella, Mr Neil Buckle, Mr Neville Poelina, Ms Patsy Yamboo, Mr Peter Francis, Mr Sammy Ah Choo and Mr Willie Lennard.
On 30 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.
In relation to the overlap of the claim of the Ngurrara People with the proposed permit, provided to the Tribunal on 6 October 2010 is a minute of consent determination in the following terms executed by Mr Mark Fabian on behalf of the grantee party. Counterparts of the minute were 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 Ngurrara People. The Government party provided the Tribunal with its signed counterpart of the minute on 6 September 2010, and the native title party provided the Tribunal with its signed counterpart of the minute on 6 October 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 3/07-8 may be done.
In relation to the overlap of the claim of the Nyikina and Mangala with the proposed permit, provided to the Tribunal on 30 August 2010 is a minute of consent determination in the following terms executed by Mr Mark Fabian on behalf of the grantee party. Counterparts of the minute were 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 KLC, on behalf of the Nyikina and Mangala. The Government party provided the Tribunal with its signed counterpart of the minute on 7 October 2010, and the native title party provided the Tribunal with its signed counterpart 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 3/07-8 may be done.
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 parties and represents the native title parties 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).
Filed in response to the application on 6 October 2010 is the affidavit of Ms Lauren West, Legal Officer of the KLC affirmed on 6 October 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 enter into a Heritage and Native Title Protection Agreement for petroleum exploration.
The KLC has applied for a consent determination in order to fulfil their instructions from the native title parties as the KLC has stated that logistical difficulties have prevented signatures of all persons comprising the native title parties being gathered on State Deeds. The Government party will be unable to grant the proposed permit until State Deeds are 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 native title party submitted an affirmed affidavit of Hema Hariharan on 25 October 2010 made in the following terms:
I, Hema Hariharan of 36 Pembroke Street, Broome, in the State of Western Australia, Solicitor, solemnly and sincerely declare and affirm:
1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome office.
2.On or about 1 May 2008, the KLC, on behalf of the Native Title Party, commenced negotiations regarding the terms of a Heritage and Native Title Protection Agreement relating to the Grantee Party’s Exploration Permit Application 3/07-8 EP, located on Nyikina and Mangala lands (“Agreement”).
3.On 30 June 2009, I attended a meeting at the Derby Recreation Centre with members of the Native Title Party.
4.At that meeting, Rob Houston, a Legal Officer employed by KLC, sought instructions from the members of the Native Title Party to enable the KLC to deal with future act matters.
5.The named applicants, and the native title party using traditional decision making processes, authorised KLC to do the following:
a. Negotiate and enter into Native Title and Heritage Protection Agreement (HPA) with Grantees (Exploration and Mining Companies) seeking access to traditional lands, on the terms and conditions as contained in the KLC Standard HPA, as approved by the Executive from time to time.
b. To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA.
6.On or about 9 July 2010 the KLC and Buru Energy Limited reached agreement on the terms of the Agreement. The terms of the Agreement are consistent with the KLC’s standard heritage protection agreement as approved by the KLC executive committee.
7.Logistically, it would be difficult for the KLC to obtain all of the necessary signatures for the State Deed because of the time required to arrange and attend meetings with the named applicants in various and sometimes remote locations throughout the Kimberley.
8.In light of the difficulties in obtaining all the necessary signatures for 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 Agreement.
9.I believe that entry into a consent determination is consistent with the instructions of the Native Title Party.
10.The preceding paragraphs are true and correct to the best of my knowledge and belief.

The Inquiry

On the basis of the information contained in the application, attached affidavits, executed minutes, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.

Findings

The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title parties on the basis of an affidavit and oral evidence from its legal representative (see Annette Kogolo and Others on behalf of Ngurrara People/Buru Energy Limited and Buru Energy (Acacia) Pty Ltd/State of Western Australia, NNTT WF10/16 [2010] NNTTA 159 (30 September 2010) Daniel O’Dea; Arc Energy NL and Kimberley Oil NL/State of Western Australia/Ngurrara Peoples and Nyikina and Mangala Peoples [2004] NNTTA 22 (5 April 2004) Hon. E.M. Franklyn QC, Deputy President.
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). I am satisfied that, based on the evidence provided to the Tribunal in this matter and in Annette Kogolo and Others on behalf of the Ngurrara People/Arc Energy Limited/State of Western Australia, [2010] NNTTA 177 (4 November 2010) Daniel O’Dea, both of the native title parties, as a whole, have agreed to the grant of the proposed permit and consent to a determination in the terms sought.

Determination

By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 3/07-8 EP to Arc Energy Limited, may be done.

Daniel O'Dea
Member
5 November 2010