Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari..

[2004] NNTTA 88

NATIONAL NATIVE TITLE TRIBUNAL

Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia [2004] NNTTA 88 (21 September 2004)

Application:   WF04/21

IN THE MATTER of the Native Title Act 1993 (Cth)

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd
(Applicant/Grantee party)

- and -

Mr Keith Councillor and Others on behalf of the Naaguja People (WC97/73) (1^st Native Title party)

- and -

Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community (WC96/93) (2^nd Native Title party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION BY CONSENT

Tribunal:  Deputy President, The Hon EM Franklyn QC

Place:  Perth
Date:  21 September 2004

Catchwords:  Native title - future act - proposed grant of petroleum exploration permit over lands the subject of two registered native title claims - agreement reached by State, grantee and registered native title claimant that the grant may be made in respect of the lands the subject of one such claim - consent determination sought in respect of land subject of the remaining native title claims as two named claimants deceased and one named claimant mentally incapacitated - heritage protection agreement with grantee entered into by all remaining registered named claimants who support a consent determination – determination that act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 31, 35, 38, s 156, s 203BC(2)

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

Mr Glen Councillor and Ors on behalf of Hutt River and Ors/Western Australia/Victoria Diamond Exploration Pty Ltd and Anor [2004] NNTTA 38, WF04/7 (10 June 2004), Hon EM Franklyn QC

Hearing date:  13 September 2004

Representative of the

Naaguja Native Title party: Mr Nathan Cammerman, Yamatji Land and Sea Council

Counsel for the Naaguja

Native Title party:               Ms Raina Savage, Yamatji Land and Sea Council

Representative of the   

Grantee party:  Mr Andy Skreiner, ARC Energy Ltd

Representative of the          Ms Maryie Platt, Department of Industry and Resources

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

REASONS FOR FUTURE ACT DETERMINATION

1. On 27 August 2003, the Government party (“the State”) 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 (EP2/02-3) under the Petroleum Act 1967 (“the permit”) to ARC Energy NL, CalEnergy Gas (Australia) Ltd and Westranch Holdings Pty Ltd (“the Grantee”).

2. On 16 January 2004 The Australian Securities and Investments Commission issued a ‘Certificate of Registration on Change of Type’, certifying that on that date ARC Energy NL converted to a company limited by shares and changed its name to ARC Energy Limited.

3. The land the subject of the proposed permit covers land the subject of the undermentioned two registered Native Title Claims, the names of the respective named registered claimants being set out hereunder:

• Registered Claim WC96/93 – Mr Dennis Comeagain, Mr Eric Papertalk, Mr Kenneth Papertalk and Mrs Margaret Green on behalf of the Mullewa Wadjari Community; and

• Registered Claim WC97/73 – Mr Glen Derrick Councillor, Mr Keith Edward Councillor, Mr Lyndsey Graham McDonald, Mr Reginald Councillor, Mr Vincent Councillor and Ms Yvonne Joan Radcliffe on behalf of the Naaguja Peoples.

1. On 18 August 2004, being a date more than six months after the s 29 notice was given, the grantee made an application to the National Native Title Tribunal (“the Tribunal”) pursuant to s 35 of the Act for a future act determination under s 38 of the Act, naming the two Native Title parties as being affected by the future act. Paragraph 10 of the application states that the State, the Grantee party and the Naaguja Peoples have reached agreement that the grant may be made and that an ancillary agreement dated 2 August 2004 has been executed by the Grantee party and all named applicants for the Native Title party with the exception of Mr Glen Derrick Councillor, Mr Vincent Cyril Councillor, both said to be deceased, and Mr Reginald Councillor, said to be mentally incompetent. The paragraph further states that an agreement with the Naaguja people, referred to as “the State Deed” that the said future act may be done, has also been executed by the three remaining named applicants: Mr Keith Edward Councillor, Mr Lyndsey Graham McDonald and Ms Yvonne Joan Radcliffe. A copy of that document is appended to the s 35 application. It is signed also by the Grantee but not by the State.

2. An agreement (referred to as a “State Deed”) as provided for in s 31(1)(b) that the act, being the grant of the permit, may be done was executed by the State, the grantee and the Mullewa Wadjari Community and lodged with the Tribunal on 10 August 2004. This Deed can only have application to the grant of the permit to the extent that the land the subject thereof is situated upon the land the subject of WC96/93. It does not and cannot authorise the grant of the permit over the land the subject of WC97/73. It is not, on its own, an agreement to which s 35(3) of the Act applies, not being an agreement with “each of the native title parties” as provided for in s 31(1)(b). The Mullewa Wadjari Community has taken no part in the s 35 proceedings. In that Deed the community consents to “the arbitral body making a determination” that the permit may be granted subject only to the conditions relating to compensation in Clause 4.1, 4.2 and 4.3 thereof.

3. The Tribunal has before it a Minute of Consent Determination in respect of the s 35 application, executed in counterparts by the representatives of the Naaguja Peoples, Grantee party and the Government party. This Minute is expressed in the following terms:

“Future Act Determination Application

IN THE MATTER OF a Consent Determination under Section 38 of the Native Title Act 1993 (CTH)

PROPOSED FUTURE ACT CONSENT DETERMINATION

Naaguja WAG6194/98 (WC97/73)

(Native Title Party)

- and -

The State of Western Australia
C/- Department of Industry and Resources
(Government Party)

- and -

ARC Energy Limited
Westranch Holdings Pty Ltd
-and –
CalEnergy Gas (Australia) Limited
(Grantee Party)

DETERMINATION

1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993.

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 Act 1993.

3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 2/02-3 may be done.”

1. Appended to the s 35 application is a certified copy of the death certificate of each of the deceased applicants, Glen Derrick Councillor (Appendix E) and Vincent Cyril Councillor (Appendix F). I also refer to an affidavit sworn the 11 May 2004 by Raina Savage, Legal Officer with Yamatji Land & Sea Council, the representative of the Naaguja Native Title party, which was filed as evidence in a previous enquiry in respect of which Naaguja people were a party and which was concerned with proof of the death of Glenn Derrick Councillor and Vincent Cyril Councillor and the mental incompetence of Reginald Councillor, each being a named native title claimant on behalf of the Naaguja people (WC97/73) (Mr Glen Councillor and Ors on behalf of Hutt River and Ors/Western Australia/Victoria Diamond Exploration Pty Ltd and Anor [2004] NNTTA 38, WF04/7 (10 June 2004), Hon EM Franklyn QC). The relevant sections of that affidavit are set out in part hereunder:

2. Affidavit of Raina Savage

   I, Raina Savage, of 43 Maley Way, Geraldton, in the State of Western Australia, Solicitor, being duly sworn make oath and say as follows:

   1.I am a Legal Officer employed by the Yamatji Land and Sea Council (“YLSC”) in their Geraldton office.

   2.I have carriage of … the Naaguja (WC97/73) … native title claims under the supervision of Mr David Ritter Principal Legal Officer.

   …

   11.In my capacity as Legal Officer for the Naaguja and Hutt River native title claims I have had personal acquaintance with the majority of named claimants on both the Naaguja and Hutt River native title claims.

   12.Annexed to this affidavit and marked “RAS1” is a certified copy of the death certificate of Vincent Cyril Councillor late of Unit 8/84 Swan Drive, Geraldton, WA.

   13.Prior to his death in May 2003 I had known Mr Vincent Councillor personally for a period of approximately eleven months, as a named claimant and working group member on both the Naaguja and Hutt River native title claims.

   14.From my personal knowledge of the matter I can confirm that the person referred to in the annexed document “RAS1” is the same person as “Vincent Councillor” who is a named claimant on the Naaguja native title determination Form 1.

   …

   16.Annexed to this affidavit and marked “RAS2” is a certified copy of the death certificate of “Glen Derrick Councillor” late of 21b Grey St, Northampton, WA.

   17.Prior to his death in February 2004 I had known Mr Glen Councillor personally for a period of approximately twenty months as a named claimant and working group member on both the Naaguja and Hutt River native title claims.

   18.From my personal knowledge of the matter I can confirm that the person referred to in the annexed document “RAS2” is also the same person as “Glen Derrick Councillor” who is a named claimant on the Naaguja native title determination Form 1.’

3. The s 35 application states at paragraph 10:

   ‘It is the grantee party’s knowledge through Future Act Determination WF04/7 made on 10 June 2004, by the Hon EM Franklyn QC, Deputy President, National Native Title Tribunal that Mr Reginald Councillor is mentally incapacitated and therefore unable to execute a section 31 Agreement (State Deed).’

Whilst Mr Reginald Councillor’s mental incapacity was established in WF04/7, I am not able to accept that finding for purposes of this enquiry without a more recent assessment of his ‘incapacity’.  After discussions with the Native Title party representative, a Tribunal case manager contacted the last known address for Mr Councillor (Nazareth House in Geraldton), and received advice that he is now under the care of Agmaroy Nursing Home in Wilson, a suburb of Perth.  Agmaroy Nursing Home was subsequently contacted by the case manager and a letter dated 9 September 2004 was subsequently received from Ms Janine Hyson, Registered Nurse and Clinical Nurse Manager of the Nursing Home, which letter is as follows:

‘Thank you for your facsimile received late yesterday afternoon.  I have asked by Ms Martin-Robbins, our Finance Manager, to respond to this as soon as possible with the information you require.

1.The date on which Mr Reginald Councillor was referred to Agmaroy Nursing Home for care.

Mr Councillor was admitted to Agmaroy Nursing Home from Geraldton Hospital on 4 April 2004.

2.The name of the Doctor supervising Mr Councillor’s care or another medically trained individual who is able to report with confidence on Mr Councillor’s current state of health.

Mr Councillor’s GP was Dr Cronje of Derbarl Yerrigan Medical Service but he has recently left there and should we require a GP for Mr Councillor we contact Derbarl Yerrigan at Bentley.  We are usually attended by either Dr Faludin or Dr Naran.  However, neither of these doctors have had to review Mr Councillor since Dr Cronje left.

3.An update of Mr Councillor’s health (and, if possible, to negate the necessity for future inquiries should further matters arise, a long term prognosis as to Mr Councillor’s mental acuity).

Mr Councillor was admitted to Agmaroy with Dementia due to ETOH abuse and Atrial Fibrillation.  He was assessed using the Hierarchic Dementia Scale, the results of which suggested a minimal level of cognitive decline but that he had areas of difficulty in orientation and short term memory.  His long term memory is reasonably good and he can still recall some past living experiences.  Mr Councillor can verbalise his needs adequately but only speaks very softly in short informal sentences and often mumbles, repeating his words a number of times.  He may not always understand initially what is being said to him necessitating the question to be repeated several times or rephrased.

Physically, Mr Councillor is reasonably well.  He has good balance, walks well but slowly and can cover a large distance.  He has good dexterity with his hands but does have a noticeable tremor which is under medical review.  He needs regular daily supervision with personal hygiene and grooming.  He tends to isolate himself socially and gets very anxious if he cannot have a certain area to himself.  However, he does enjoy participating in certain activities and is highly dependent upon family support and being taken out by the family.

He has a total lack of insight into his living situation and is at risk of self deficit in personal hygiene and grooming.

On a long term basis, people with Dementia do not usually improve in their mental capacity.  Unfortunately, this is a progressive disease, sometimes advancing rapidly, sometimes slowly affecting mainly the short term memory.  As the short term memory is the one vital to daily living, these Dementia sufferers do not improve and will always require care.’

1. On 13 September 2004 the Tribunal convened a Preliminary Conference during which, after advising the parties that the same were available for inspection and submissions by them, I verbally summarised the relevant segments of the said letter and also relevant clauses from the affidavit of Ms Savage sworn 11 May 2004.  I also made reference to the medical information provided by Derbarl Yerrigan Medical Service on 27 May 2004 in response to a Summons to Witness issued by the Grantee party in WF04/7 advising that it also was available to the parties for inspection and submission.  This documentation comprised:

   (a)a letter on Bentley Health Service letterhead from a Ms Annette Taylor, Registered nurse (ACAT), to Dr Andre Cronje, outlining Mr Councillor’s medical condition and circumstances as of 5 June 2002;

   (b)a typewritten sheet entitled Patient Clinical Summary (12/2000), carrying handwritten notes with the initials “AC” (later confirmed to be Dr Andre Cronje); and

   (c)Five sheets entitled “Progress Notes”, which appear to have been entered by hand by a variety of personnel from 5 September 2001 to 25 May 2004.

Each party declined the invitation to inspect any of the documents referred to and expressed satisfaction with the material as presented to them by me.  I advised the parties that I was satisfied that Mr Councillor’s mental incompetence was sufficiently established, a finding with which each party agreed.  

1. During the course of the Preliminary Conference I sought confirmation from Ms Savage that the Yamatji Land and Sea Council were properly authorized to represent the Naaguja Native Title party in this matter, and to consent to the proposed determination.  Ms Savage advised such authority was expressly confirmed on 4 June 2004 and, on 14 September 2004,  provided a letter to the Tribunal in the following terms:

2. ‘WF04/21 application for Future Act Determination Arc Energy Exploration Permit 2/02-3: Authority to consent to determination.

   We represent the Naaguja People native title claim group (WAG6194/98; WC97/73).

   The Naaguja native title claim group has nominated twelve persons to act as a working group in relation to the progression of their native title determination application.  The Naaguja claim group has authorized the working group to deal with all matters arising from the conduct of their native title determination application, including future act negotiations, and to give instructions on its behalf to the Yamatji Land and Sea council (“YLSC”).

   On 2 August 2004 agreement was reached between the Naaguja working group and representative of ARC Energy Ltd on behalf of ARC Energy Ltd, CalEnergy Gas (Australia) Ltd and Westranch Holding Pty Ltd (“the proponents”), in relation to the grant of petroleum exploration permit EP2/2002-2003.  The working group passed a resolution authorizing and directing the applicants to the Naaguja native title determination application to execute the necessary documents to give effect to the agreement.  All surviving applicants to the Naaguja native title determination application, with the exception of Mr Reginald Councillor, then executed a state deed for the grant of petroleum exploration permit EP2/2002-2003 to the proponents.

   Mr Reginald Councillor was unable to execute the state deed due to mental incapacity. An application has thus been made, by the proponents, to the National Native Title Tribunal for a determination under s38 of the Native Title Act 1993 that Petroleum Exploration Permit 2/02-3 may be granted with the consent of the parties.

   A meeting of the Naaguja native title working group was held at the Bundiyarra Centre in Geraldton on 4 June 2004.  A quorum of the working group being present the following resolution was passed:

   Resolution 040604/01

   That the Naaguja working group authorises the Yamatji Land and Sea Council (“YLSC”) to proceed by way of consent determination if this is necessary to give effect to any agreement entered into by Naaguja with ARC Energy in relation to the grant of Petroleum Exploration permit application 2/02-3.

   Moved: Doyen Radcliffe
   Seconded: Keith Councillor

   Put to the vote.  All in favour, none against.

   The resolution above expresses the formal instructions of the Naaguja working group, authorizing the YLSC to execute the Minute of Consent Determination orders in relation to the grant of exploration permit 2/02-3, on behalf of the Naaguja native title claim group.’

3. 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 the representatives have advised the Tribunal of the Consent, (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361). The Native Title party and the State are legally represented in this matter. All of the surviving registered Naaguja Native Title Claimants, with the exception of Mr Reginald Councillor, have signed the ancillary agreement and the “State Deed” referred to in para [4] hereof and have expressed their Consent to the determination. Having regard to my finding that the medical records and information submitted to the Tribunal establish the assertion that Mr Reginald Councillor is mentally incompetent and therefore unable to sign the agreement, I am satisfied that the other surviving named native title claimants on behalf of the Naaguja people have established by their execution of the same that they understand and consent to the general course of action that the representative body has taken on their behalf, and, in particular, to the consent determination. This is confirmed by the advice and letter of 14 September 2004 from Ms Savage. It is also clear on the evidence, in my view, that the Native Title party has consented in accordance with a process of the kind referred to in s 203BC(2)(b) of the Act, as described by Ms Savage. I also take into account the Deed entered into by the State, the grantee and the Mullewa Wadjari Community in respect of the land the subject of the registered Native Title Claim of that group (WC96/93). Without such agreement a determination on this application would be totally ineffective to permit the act to be done. In my opinion there is nothing in the facts of this matter which make a Consent Determination in the terms of the Minute inappropriate.

1. With respect to the s 35 application and the Mullewa Wadjari State Deed, I note that the petroleum exploration permit the subject of the application is variously referred to as “Petroleum Exploration Permit EP 2/2002-2003” and “EP2/02-3”. Whilst the descriptive numbering of the permit is not an issue in itself, I suggest that it would be of assistance in cases such as this if the permit be consistently described in each of the s 29 notice, the s 35 application and any document relating to it or, where this is not possible, there be a statement of evidence identifying the different descriptions as referring to the same permit. In this matter I am satisfied by the verbal explanation provided by Ms Maryie Platt at the preliminary conference, that “Petroleum Exploration Permit EP 2/2002-2003” and Petroleum Exploration permit “EP2/02-3” are one and the same petroleum title.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit EP2/02-3 also described as (EP) 2/2002-2003 to ARC Energy Limited, CalEnergy Gas (Australia) Ltd and Westranch Holdings Pty Ltd may be done.

The Hon E M Franklyn QC
Deputy President
21 September 2004