Bunbury Energy Pty Ltd v William Webb and Others on behalf of South West Boojarah #2 and Others - [2017] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Bunbury Energy Pty Ltd v William Webb and Others on behalf of South West Boojarah #2 and Others [2017] NNTTA 1 (6 January 2017)

Application No: WF2016/0015

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

Bunbury Energy Pty Ltd (grantee party)

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William Webb, Donald Hayward, Bertram Williams, William Thompson, Margaret Culbong, Barbara Corbett-Councillor Stammner and Wendy Williams on behalf of South West Boojarah #2 (WC2006/004) (first native title party)

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Derrick Smith, Franklyn Nannup, Harry Narkle, Joseph Adrian Northover, Joseph Walley, Mervyn Neil Abraham, Peter Michael, Barbara Corbett Stammner and Lorraine Bellotti on behalf of Gnaala Karla Booja (WC1998/058) (second native title party)

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Minnie Van Leeuwen on behalf of Harris Family (WC1996/041) (third native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal: Mr JR McNamara, Member

Place: Brisbane

Date: 6 January 2017

Catchwords: Native title – future act – proposed grant of petroleum exploration permit – parties consent to grant – parties unable to formalise s 31(1)(b) agreement – Tribunal to take into account any agreement on issues relevant to determination – the act may be done

Legislation: Native Title Act 1993 (Cth), ss 31, 31(1)(b), 37, 38, 39(1), 39(4)

Petroleum and Geothermal Energy Resources Act 1967 (WA)

Cases:Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal 2 v Gomeroi People’)

Representative of the Ms Sunili Govinnage, King & Wood Mallesons

grantee parties

Representative of the Mr Matthew Casey, South West Aboriginal Land and Sea Council
first native title party

Representative of the Mr Peter Nettleton, South West Aboriginal Land and Sea Council
second native title party

Representative of the Mr Paul Sheiner, Roe Legal Services
third native title party Ms Kelsi Forrest, Roe Legal Services

Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office

Government party Ms Maryie Platt, Department of Mines and Petroleum

REASONS FOR DETERMINATION

This decision concerns an application made to the National Native Title Tribunal seeking a determination that a petroleum exploration permit may be granted, where the parties consent to the grant of the permit but have been unable to meet the formal requirements of the Native Title Act 1993 (Cth) (‘the Act’).
In August 2015, the State of Western Australia gave notice of its intention to grant petroleum exploration permit STP-EPA-0132 to Bunbury Energy Pty Ltd, under the Petroleum and Geothermal Energy Resources Act 1967 (WA). The permit is located in the Perth Basin, in the Shires of Donnybrook-Balingup, Capel and Dardanup and the Cities of Busselton and Bunbury. The permit area is overlapped by three registered native title claims:
·South West Boojarah #2 (WC2006/004), overlapping at 3.97%
·Gnaala Karla Booja (WC1998/058), overlapping at 96.03%
·Harris Family (WC1996/041), overlapping at 5.95%
Once a proposal to grant a petroleum exploration permit is notified under the Native Title Act, the proponent and the State must negotiate in good faith with any registered native title claimants or registered native title bodies corporate within the land or waters affected by the proposal, with a view to obtaining the agreement of each native title party. If after six months the parties are unable to agree, then any of the parties may apply to the Tribunal for a determination.
Following notification, the parties began to negotiate about the grant of the petroleum exploration permit. These negotiations resulted in ancillary agreements and s 31 deeds being fully executed in relation to Gnaala Karla Booja and Harris Family respectively. In relation to South West Boojarah #2, the working party passed a resolution at a meeting on 5 July 2016, authorising entry into an ancillary agreement with Bunbury Energy and authorising the making of a future act determination application if the s 31 deed was not able to be fully executed by all members of the South West Boojarah #2 applicant. South West Boojarah #2 has been unable to give effect to this consent as two members of the applicant have not signed the s 31 deed or ancillary agreement. One member of the South West Boojarah #2 applicant has refused to sign the documents but has not indicated this is because of an objection to the grant of this specific petroleum exploration permit and one is unable to be located or contacted.
On 6 October 2016, Bunbury Energy made an application to the Tribunal seeking a determination that the petroleum exploration permit may be granted. Included with the application were: copies of the s 31 deeds fully executed in relation to Gnaala Karla Booja and Harris Family and the partially executed s 31 deed in relation to South West Boojarah #2; and an extract of minutes from the South West Boojarah #2 meeting held on 5 July 2016.
On 8 December 2016, I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the application. As the member conducting the inquiry, I am required to make one of three determinations pursuant to s 38 of the Act: the petroleum exploration permit must not be granted; the petroleum exploration permit may be granted; or the petroleum exploration permit may be granted subject to conditions to be complied with by any of the parties. Although the petroleum exploration permit is overlapped by three registered native title claims, this decision will primarily relate to South West Boojarah #2, as s 31 deeds have been fully executed in relation to Gnaala Karla Booja and Harris Family.
In making a determination, I must have regard to the criteria in s 39(1)(a) of the Act. These include the effect of the petroleum exploration permit on: the enjoyment by South West Boojarah #2 of their registered native title rights and interests; the development of their social, cultural and economic structures; their freedom of access, and freedom to carry out rites, ceremonies and other activities of cultural significance; and any area or site of particular significance to them in accordance with their traditions.
I am also required to take into account the other matters in s 39(1), namely: the interests, proposals, opinions and wishes of South West Boojarah #2 in relation to the management, use or control of the land or waters affected by the petroleum exploration permit; the economic or other significance of the petroleum exploration permit to Australia, the State of Western Australia, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in the grant of the petroleum exploration permit; and the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than South West Boojarah #2. I must also take into account any other matter I consider to be relevant.
The application seeks a determination that the petroleum exploration permit may be granted by consent. The application states that, although the parties have not reached agreement about the grant of the petroleum permit within the meaning of the Act, Bunbury Energy have entered into an agreement with South West Boojarah #2 which addresses the matters in s 39(1)(a).
There is no suggestion this bilateral agreement between South West Boojarah #2 and Bunbury Energy is an agreement of the kind referred to in s 31(1)(b) of the Act. As President Webb observed in Aston Coal 2 v Gomeroi People, what is required under s 31(1)(b) is agreement between the ‘negotiation parties’ (that is, an agreement or agreements between each grantee party, each native title party and the Government party). If there were such an agreement, then the Tribunal would be barred from making a determination: see s 37 of the Act.
If there are any issues relevant to the determination on which the negotiation parties agree, and the negotiation parties consent, then in making my determination I must take that agreement into account, and need not to into account the matters in s 39(1) to the extent those matters relate to the issues agreed: see s 39(4) of the Act. To this end, I directed the parties to confer for the purpose of reaching agreement on issues relevant to the determination and to file a statement of agreed facts.
The statement of agreed facts, submitted by Bunbury Energy’s representative on behalf of all parties, was provided to the Tribunal on 21 December 2016 and states:
1.The Government party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth) (NTA).
2.The Native Title Parties, Grantee Party and Government Party have negotiated in good faith in accordance with section 31(1)(b) of the NTA in relation to the grant of petroleum exploration permit STP-EPA-0132 under the Petroleum and Geothermal Energy Resources Act 1967 (WA). Final draft deeds for the grant of petroleum exploration permit STP-EPA-0132 and ancillary agreements (Agreements) have been settled and signed by all registered claimants for the Gnaala Karla Booja Claim Group and Harris Family Claim Group Native Title Parties. Of the South West Boojarah #2 Claim Group Native Title Party, one registered claimant refused to sign the Agreements and one registered claimant was not able to be located or contacted.
3.The Native Title Parties and the Grantee Party agree to be bound by the Agreements notwithstanding that they have not been signed by all of the registered claimants for the South West Boojarah #2 Claim Group Native Title Party.
4.The Native Title Parties consent to the grant of petroleum exploration permit STP-EPA-0132.
5.The Native Title Parties and Grantee Party have addressed the effect of the petroleum exploration permit STP-EPA-0132 regarding each of the matters outlined in section 39(1)(a) – (f) of the NTA to their mutual satisfaction.
6.The Native Title Parties and Grantee Party both consent to the Tribunal taking into account the fact that they:
a.have addressed the matters outlined in section 39(1)(a) – (f) of the NTA to their mutual satisfaction in the Agreements; and
b.consequently agree that the grant of petroleum exploration permit STP-EPA-0132 will have no significant adverse effect on those matters in making its determination.
7.On that basis, the Native Title Parties and Grantee Party also consent to the Tribunal having no further regard to the matters outlined in section 39(1)(a) – (f) of the NTA, in reliance on section 39(4) of the NTA. The Government Party the Native Title Parties and Grantee Party also consent to the Tribunal having no further regard to the matters outlined in section 39(1)(a) – (f) of the NTA, in reliance on section 39(4) of the NTA.
8.The Government Party relies on the statements made by the Native Title Parties and Grantee Party at para 6 above and, on that basis, consents to the Tribunal taking those statements into account and having no further regard to the matters in section 39(1) of the NTA.
9.The Native Title Parties, Grantee Party and Government Party agree to make no further submissions on these matters.
10.The Native Title Parties, Grantee Party and Government Party consent to the Tribunal taking into account this Statement of Agreed Facts and Issues in making its determination pursuant to section 39(4) of the NTA.
11.The Native Title Parties, Grantee Party and Government Party consent to a determination under section 38 of the NTA that the grant of petroleum exploration permit STP-EPA-0132 may be done.
Taking into account the matters outlined above, I make the following determination.

Determination

The determination of the Tribunal is that the act, namely the grant of petroleum exploration permit STP-EPA-0132 to Bunbury Energy Pty Ltd, may be done.

Mr JR McNamara
Member

6 January 2017