Arc Energy NL & Kimberley Oil NL/State of Western Australia /Ngurrara Peoples and Nyikina & Mangala Peoples
[2004] NNTTA 22
•5 April 2004
NATIONAL NATIVE TITLE TRIBUNAL
Arc Energy NL & Kimberley Oil NL/State of Western Australia /Ngurrara Peoples and Nyikina & Mangala Peoples [2004] NNTTA 22 (5 April 2004)
Application: WF02/7
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Ngurrara Peoples (WC96/32) and Nyikina & Mangala Peoples (WC99/25) (Native Title parties)
- and -
Arc Energy NL (Grantee party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION BY CONSENT
Tribunal: Deputy President, The Hon. E.M. Franklyn QC
Place: Perth
Date: 5 April 2004
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration licence – ancillary agreement entered into with purchases of Grantees prospective interest in the grant - consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 35, 38
Petroleum Act 1967
Cases: Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby
Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) Hon CJ Sumner
Hearing dates: 20 June 2002; 22 July 2002; 5 August 2002; 19 August 2002; 5 September 2003; 13 October 2003; 23 October 2003; 21November 2003; 27 February 2004.
Representative of the
Native Title Parties: The Kimberley Land Council Aboriginal Corporation
Counsel for the
Native Title Parties: Mr Ian Irving, Kimberley Land Council Aboriginal Corporation
Representative of the
Grantee Party: Ms Penny Oulten, Arc Energy Limited; Mr Andy Skreiner, Arc Energy Limited and Mr Keith Spencer, Kimberley Oil NL
Representative of the Ms Maryie Platt, Department of Industry and Resources
Government party: Mr Trevor Creewel, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
[1] On 17 March 1997, 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 (EP2/96-7) under the Petroleum Act 1967 (“The Permits”) to Austin Oil NL which, on 5 August 1997, changed its name to Arc Energy NL and on the 16 January converted to a company limited by shares named Arc Energy Limited (“the Grantee”). Kimberley Oil NL (KO) has acted as the grantee’s representative in all dealings regarding EP2/96-7 before the Tribunal.
[2] The boundary of the proposed permit overlaps land the subject of registered Native Title Claim WC96/32 on behalf of the Ngurrara Peoples and land the subject of registered Native Title Claim WC99/25 on behalf of the Nyikina & Mangala Peoples. Both claimant groups are represented by the Kimberley Land Council Aboriginal Corporation (KLC).
[3] On 29 May 2002, the State 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 registered Native Title Claimants on behalf of both the Ngurrara Peoples (WC96/32) and Nyikia and Mangala Peoples (WC99/25) as the Native Title parties.
[4] 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, Ms Jinny Bent, Mr Joe brown, Ms Lucy Cubby, Ms Mona Chuguna, 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.
[5] The registered Native Title Claimants on behalf of the Nyikina & Mangala Peoples 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 Maudie Ningella, Mr Neil Buckle, Mr Neville Poelina, Ms Patsy Yamboo, Mr Peter Francis, Mr Sammy Ah Choo and Mr Willie Lennard.
[6] On 29 May 2002 the State submitted a request for a conference pursuant to s 150 of the Act, that request being said to be the outcome of a mediation meeting held on 22 April 2002. On 4 June 2002 the Hon CJ Sumner was appointed to preside over the conference, and on 11 June 2002, I was appointed to conduct the s 35 inquiry. That the parties wished to resolve this matter by agreement was confirmed at a preliminary conference convened by me on 20 June 2002 and the inquiry process was adjourned until 22 July 2002 to enable negotiations to continue.
[7] On 22 July 2002 the parties advised that agreement had been reached but not yet documented. Adjournment was granted to 5 August 2002 for that to be done. On 5 August 2002, a further adjournment was sought by the Native Title parties’ representative to enable amendments to a draft of the agreement. The matter was adjourned by consent to 19 August 2002.
[8] The Listing date set for 19 August 2002 and those subsequently set for 29 August 2002, 19 September 2002, 23 September 2002 and 27 September 2002 were subsequently adjourned with the consent of the parties, each on the basis that agreement on every point and execution of a written ancillary agreement between the Grantee and the Native Title parties was imminent. It was agreed that a date for the hearing be set in the week commencing 25 November 2002, the hearing to be held in the absence of advice of the execution of the ancillary agreements by the Grantee party and the Native Title parties, together with a State Deed that the act may be done. On 13 November 2002, the Tribunal was advised that the Nyikina & Mangala People had reached agreement with the Grantee on an ancillary agreement and that the Grantee had signed a State Deed which was presently with the Native Title parties, but that the Ngurrara People had not reached agreement on a “final clause”. The parties were of the view that a listing hearing should be held. The hearing was listed for 25 November 2002 but, at the request of the parties, on the basis of anticipated agreement, that date was vacated and the listing changed to 6 December 2002.
[9] On 26 November, 2003 Mr Ross Reisner of KO, who had been representing that company as representative of the Grantee before the Tribunal and in negotiation with the Native Title parties, advised the Tribunal that he was leaving the company and that a Mr Alan Flavelle of KO, would thereafter represent the Grantee.
[10] By letter dated 4 December 2002, the KLC confirmed the execution of an ancillary agreement between KO and the KLC on behalf of the Nyikina & Mangala People and that it was obtaining the signatures of the registered Native Title claimants to a State Deed. It advised that as to the Ngurrara People, one clause of an ancillary agreement remained to be negotiated with KO. The letter advised that the KLC anticipated discussing the matter with Mr Flavelle in the near future, agreed to the s 35 hearing listed for 6 December 2002 being adjourned sine die and noted that this did not affect the s 150 conference continuing.
[11] Parallel with the s 35 procedures, the parties were continuing with the s 150 conferences, they being listed in 2002 for 21 June, 5 July, 19 July, 26 July, 8 August, 19 August, 23 August, 19 September, 23 September, 6 December and in 2003 for 22 January, 12 February, 24 February, 28 march, 3 April, 10 April, 9 may, 30 May, 3 July. Some of such dates were vacated in favour of other of such dates.
[12] As the result of inquiry by the Tribunal of the parties as to progress, the Tribunal was informed on 17 June 2003 that the parties had reached agreement, that it was to be sent in written form by KLC to the Grantee for execution and arrangement of a State Deed by KO and that the Grantee was to then forward the signed documents to Mr Irving of the KLC for execution by the Native Title parties.
[13] On 17 July 2003 correspondence was received from the (then) Crown Solicitor’s Office advising that one of the registered named applicants from the Nyikina & Mangala People Native Title claimant group, Mr George Riley, had died before negotiations were concluded and that, as the KLC had advised, there were “extreme difficulties” in obtaining a death certificate for the deceased, it would not be possible to conclude this matter via a State Deed. As a result, the State requested that a consent determination be issued by the Tribunal to give effect to the agreement reached between the parties. The Tribunal agreed to entertain a s 35 application for a consent determination on the basis that the parties would produce evidence and make such submissions as were appropriate.
[14] An amended application and draft Minute of Consent were submitted to the Tribunal by the State on 20 August 2003. In the amended application, at point 9, it was stated that:
The grantee party reached agreement with the Nyikina and Mangala native title parties on 3 October 2002, and with the Ngurrara native title party on 25 June 2003 as to the terms upon which the proposed future act may be done, but the negotiation parties have been unable, on account of the death of a named member of a native title party, to execute a State deed for the purposes of memorialising the agreements between all parties in terms of section 31(1)(b) of the Native Title Act 1993 to give effect to the agreements.
At point 13, the application stated:
Full agreement has been reached between the parties that the proposed future act can be done, and setting out the terms and conditions upon which the proposed future act can be done. However the death of a named member of one of the native title parties has prevented a State deed from being executed, which deed would memorialise the agreement in terms of section 31(1)(b) of the Native Title Act 1993. The funeral undertaker who performed the burial of the deceased did not obtain a death certificate, which would be necessary to execute a deed in the absence of the deceased member of the native title party.
[15] Copies of the proposed Minute of Consent Determination signed on behalf of the State and Grantee were also submitted, on the 26 and 27 August 2003 respectively. The Minute was 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 Grantee Party and the Native Title Parties have 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’ may be done being the grant of petroleum exploration permit 2/96-7 may be done pursuant to the two agreements entitled “Kimberley Land Council Aboriginal Corporation and Kimberley Oil NL – Native Title and Heritage Protection Agreement” between the Grantee Party and the second-named Native Title Party dated 3 October 2002 and between the first-named Native Title Party dated 23 June 2003.
[16] A copy of the proposed Minute of Consent executed on behalf of the Native Title parties by the Executive Director of the KLC was received by the Tribunal on 3 September 2003, together with advice that it had received a stamped executed Native Title and Heritage Protection Agreement between the Ngurrana People and KO.
[17] On 5 September 2003 I conducted a further Hearing into this matter. As outcomes of this hearing I requested that:
- the parties draft a agree the wording of the consent determination and present the same to the Tribunal; and
- the KLC (Ian Irving) address in writing the issue of proof of the death of the deceased applicant, the decision making process of the Nykina and Mangala Peoples and the circumstances of the authorisation for the making of the agreement with the Grantee.
[18] At a hearing on 13 October 2003, convened to determine the reason for delay in settling the terms of the proposed consent determination, the parties were advised that if the Native Title party and Grantee did not wish compliance with the Ancillary agreement to be a condition of the determination, the determination could be unconditional, leaving the parties to rely on their contractual rights to enforce compliance. The hearing was adjourned to 23 October 2003.
[19] On 21 October 2003 the Tribunal received a copy of an affidavit affirmed that same day by Mr Ian Irving, the Acting Principal Legal Officer of the KLC, in support of the consent determination application. At a hearing on the 22 October 2003 to which I subsequently refer The Grantee and the State was given the opportunity to comment on that affidavit but elected not to so. A further affidavit, affirmed the 22 February 2004, also received from Mr Irving, provided further information as to the Native Title parties’ decision and authorisation processes. I accept Mr Irving’s evidence in those affidavits as to:
the existence of two ancillary agreements which contain conditions to be complied with by the Grantee, each such agreement being a Native Title and Heritage protection Agreement one between the KLC on behalf of the Nyikina & Mangala Native Title claimants and KO, dated 3 October 2003, and the other between that same corporation on behalf of the Ngarrana Native Title claimants and KO, dated 23 June 2003;
the traditional decision making processes of each of the Nyikina & Mangala claimant community and the Ngurrana claimant community and that such process was followed by each such community in agreeing the terms of the respective agreements with KO and in authorising the KLC to enter into each such agreement on its behalf;
iii) that KLC was duly authorised by each such community to negotiate the terms of the agreement in relation to the grant of petroleum exploration permit EP2/96-7, that the final terms of the each such agreement as negotiated was approved by the respective claimant group and that KLC was authorised to enter into each such agreement on behalf of the relevant claimant group and to execute the same by its Executive Director, Mr Wayne Bergman.
However the affidavit evidence as to the claimed death of Mr George Riley was inadequate to establish his death.
[20] At a hearing convened on 22 October 2003, the parties advised their agreement that Clause 3 of the Minute of proposed consent determination be varied to read as follows:
“The Government party, the Grantee party and the Native Title Parties consent to a determination under s 38 of the Native Title Act 1993 that the “act”, being the grant of petroleum exploration permit 2/96-7 may be done subject to and conditional upon the compliance by each party to the two following named agreements with their respective agreements and obligations there under such two agreements being entitled “Kimberley Land Council Aboriginal Corporation and Kimberley Oil NL – Native Title and Heritage Protection Agreement” between the Grantee party and the second-named Native Title Party dated 3 October 2002 and between the Grantee party and the first-named Native Title Party dated 23 June 2003”.
[21] At a hearing on the 23 October 2003, I ascertained from the Grantee and the KLC and pointed out to the parties that the Grantee (Arc Energy NL) was not a party to the ancillary agreements, the same being between KO, as one party, and the respective native title parties, as the other party and pointed out that a determination in the agreed terms would not enable the Native Title parties to enforce the ancillary agreements against the Grantee directly, if at all. I drew attention to the fact that the asserted minute wrongly referred to the agreements as being between the Grantee and the respective Native Title parties. The Grantee and Mr Irving, for the Native Title parties, agreed to discuss the matter and the Grantee to provide Mr Irving with a copy of the agreement between KO and the Grantee. The hearing was adjourned to 21 November 2003.
[22] At the hearing on 21 November 2003, the Grantee provided a letter dated 21 November 2003 confirming that it had sold its interest in EP2/96-7 to KO pursuant to an agreement made in August 1998, that it “holds” the same upon Trust for KO and appoints KO as its agent and attorney in respect of the same. By consent, the hearing was adjourned sine die for the parties to further consider the question of a consent determination and to continue with s 150 mediation.
[23] A death certificate certifying the death of Mr George Riley of 18 Field Street Derby, Western Australia issued by the Registrar of Births Deaths and Marriages on 15 December 2003 was lodged with the Tribunal on 14 January 2004 as establishing the death on 24 June 2002 of the above named Native Title Claimant, Mr George Riley, registered on the Nyikina & Mangala Peoples’ application for determination of native title.
[24] A further affidavit affirmed 27 February 2003 was lodged by Mr Ian Irving on 27 February 2004 addressing issues raised by the Tribunal in respect of the previous affidavit lodged by him on 21 October 2003 and the ancillary agreements and I set its contents out in full:
On 27 February 2004, I, IAN ANDREW IRVING, of 7/1 Saville Street, Broome, Western Australia, solicitor, affirm:
I am the Principal Legal Officer of the Kimberley land Council, and am solicitor for the Native Title Parties in this matter.
I make this affidavit of my own knowledge information and belief, save where otherwise indicated. Where I make this affidavit on the basis of information provided to me, I state the source.
I make this affidavit in support of an application for consent determination under section 38 of the Native Title Act 1993 (Cth) in WF02/7, that the act may be done without conditions
I have previously affirmed an affidavit dated 21 October 2003 in this matter and I rely on the contents of that affidavit.
The KLC is a recognised Native Title Representative Body under the Native Title Act 1993 (Cth). The KLC’s representative body area covers the Kimberley Region of north Western Australia and includes the land and waters covered by the Nyikina & Mangala native title determination application and also the Ngurrara native title determination application. The KLC represents the Nyikina & Mangala native title applicants in their application for a determination of native title (WAG6099/98,WC96/66). The KLC represents the Ngurrara native title applicants in their application for a determination of native title (WAG6077/98, WC96/32).
Native Title and Heritage Protection Agreements have been negotiated and executed between the Kimberley Land Council Aboriginal Corporation on behalf of the Nyikina & Mangala native title applicants and Kimberley Oil NL dated 3 October 2002 and between the Kimberley Land Council Aboriginal Corporation on behalf of the Ngurrara native title applicants and Kimberley Oil NL dated 23 June 2003.
The agreements referred to in paragraph 6 above were negotiated over an extensive period of time and involved many meetings with the native title parties during which instructions were obtained. The agreements are between the native title parties and Kimberley Oil NL and are based on Kimberley Oil holding EP2/96-7. As such they reflect the stated intentions of and agreement between Arc Energy NL and Kimberley Oil NL that EP2/96-7 will be transferred on its grant from Arc Energy NL to Kimberley Oil NL.
Since the time this matter was adjourned sine die in late October 2003 I have been involved in numerous conversations with representatives of Kimberley Oil, Arc Energy and the State of Western Australia to discuss how the matter might proceed. On or about 5 February 2004 I had a conversation with Ms Platt of the Department of Industry and Resources during which two different options for the progress of the matter were canvassed. The first option involved Arc Energy entering into agreements identical to the agreements between KLC on behalf of the Nyikina & Mangala and Ngurrara claimant groups and Kimberley Oil. The second option involved Kimberley Oil lodging an application (and appropriate application fee) with the Department of Industry and Resources for the transfer of EP2/96-7. Ms Platt indicated the Department would be willing to then inspect the transfer documents to ensure that they were administratively in order and if so, indicate to Kimberley Oil and KLC that the transfer would be effected simultaneously with the grant of EP2/96-7.
Since my conversation with Ms Platt on or about 5 February I have had numerous conversations with Mr Keith Spencer of Kimberley Oil. During those discussions I explained the substance of my discussions with Ms Platt. I have understood from my conversations with Mr Spencer that Arc Energy NL did not wish to enster into an agreement with KLC in accordance with the first option outlined in paragraph 8 above. I have also understood from my discussions with Mr Spencer that Kimberley Oil would be willing to do all things necessary to put in place the second option outlined in paragraph 8 above.
On 26 February 2004 I received a facsimile from Maryie Platt of the Department of Industry and Resources. The contents of that facsimile have led me to believe that the process encompassed in the second option outlined in paragraph 8 above has now taken place. Now produced and shown to me marked “II-1” is a copy of that facsimile.
I believe that the Nyikina & Mangala and Ngurrara claimant communities have followed traditional decision making processes in agreeing on the terms of the agreements with Kimberley Oil over petroleum exploration permit 2/96-7 and in authorising the KLC to enter into the agreements on their behalf with Kimberley Oil. I believe that the instructions I have received from the Nyikina & Mangala claimant community and Ngurrara claimant community are such as to encompass, in the present circumstances, consent that the National Native Title Tribunal make a determination that the act, the grant of EP2/96-7 to Arc Energy may be done without conditions.
Affirmed by IAN ANDREW IRVING at Broome in the State of Western Australia this 27th day of February 2004.
[25] At the final hearing of this matter on 27 February 2004 the KLC, by Mr Irving, affirmed that the Native Title parties remained prepared to consent to an unconditional determination despite the fact that the documents forwarded by the Department of Industry and Resources indicated transfer of title from Arc Energy Limited to Kimberley Oil NL would not occur simultaneously with the grant. Those documents showed that necessary administrative procedures could result in a delay of up to two weeks between the grant and transfer occurring. Mr Irving confirmed that the Native Title parties understood the effect of an unconditional determination and consented to it. Ms Maryie Platt of the Department of Industry and Resources confirmed that the Department would do everything to expedite the process.
[26] 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/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50, (22 June 2001) Hon CJ Sumner. The Native Title parties and the State are legally represented in this matter. Having regard to the facts attested by Mr Ian Irving, I am satisfied that the registered Native Title claimants for the Ngurrara People and Nyikina & Mangala Peoples understand and consent to the general course of action that the representative body has taken on their behalf, and in particular, to the unconditional consent determination. I am also satisfied that the death certificate tendered considered with the hearsay evidence in Mr Irvings affidavit of 21 October 2003, is satisfactory evidence of the death on 6 June 2002 of Mr George Riley, one of the registered Native Title Claimant on behalf of the Nyikina & Mangala Peoples registered as Mr George Riley is an appropriate case for a consent determination.
Determination
[27] By consent, the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit EP2/96-7 to Arc Energy Limited may be done.
The Hon EM Franklyn QC
Deputy President
5 April 2004
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