Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd
[2006] NNTTA 141
•24 October 2006
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba People; Gooniyandi People; Kurungal People/Western Australia/Budside Pty Ltd; Pobelo Pty Ltd [2006] NNTTA 141 (24 October 2006)
Application No: WF06/1
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into a future act determination application
Bunuba People (Bunuba native title party)
- and -
Gooniyandi People (Gooniyandi native title party)
- and -
Kurungal People (Kurungal native title party)
- and -
The State of Western Australia (Government party)
- and -
Budside Pty Ltd and Pobelo Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 24 October 2006
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit tenement – executed ancillary agreement — logistical difficulties preclude execution of a State Deed — native title parties as a whole consent to the determination — consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 36(3), 38, 109, 203B, 203BB, 203BC
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner
Hearing dates: 21 February 2006, 15 May 2006, 6 July 2006, 17 July 2006,
31 July 2006
Counsel for the
native title parties: Mr Brendan Renkin, Kimberley Land Council
Representative of the
native title parties: Ms Ania Maszkowski, Kimberley Land Council
Representative of the Mr Dennis Morton, Budside Pty Ltd
grantee party: Mr Ian Grierson, Pobelo Pty Ltd
Representative of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 25 August 1999, 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 EP6/98-9 (‘the proposed permit’) under the Mining Act 1978 (WA) to Budside Pty Ltd and Pobelo Pty Ltd (‘the grantee party’).
The native title parties in respect of these proceedings are as follows:
Banjo Wurrunmurra, Adam Andrews, Billy Oscar, Bradley Williams, Danny Marr, Isaac Hale, Johnny Marr and Rita Dann on behalf of the Bunuba People (WC99/19) (‘the Bunuba native title party’);
Dora Sharpe, Butcher Cherel, David Street, Eric Lawford, John Till, Lorraine Shandley, Maureen Carter, Neville Sharpe, Reenie Chestnut, Rita Shandley, Stanley Holloway, Suzy Lamey, Teddy Cranbell and Topsy Chestnut on behalf of the Gooniyandi People (WC00/10) (‘the Gooniyandi native title party;); and
Butcher Wise, Chad Atkins, Freddy Thomas, Juluk Tighe, Maliki Hobbs, Rodney Rawlins, Wilfred Steele, Allan Lawford, Jane Biendurry and Marjorie Baldwin-Jones on behalf of the Kurungal People (WC97/101) (‘the Kurungal native title party’).
The Bunuba and Kurungal native title parties’ procedural rights are attained as a result of their status as registered native title claimants as at the time of the s 29 closing date. The Gooniyandi native title party’s rights are secured as a result of the registered status of pre-combination Gooniyandi claim – WC99/27 – which was entered on the Register of Native Title Claims from 29 September 1999 to 3 May 2002, and remains on the Register as at the time of lodgement of the s 35 application as combined Gooniyandi (WC00/10). For the purposes of this determination, and unless specific reference to an individual native title party is made, the three claim groups listed above will be referred to as the native title parties.
The proposed permit covers an area of 5772 square kilometres, approximately 120 kilometres north of Fitzroy Crossing, and extending approximately 220 kilometres south easterly to a point near Bohemia Downs on Christmas Creek. The subject area is located with the Shires of Halls Creek, Derby and West Kimberley, and has 9.87% overlap with the registered claim of the Bunuba native title party, a 61.24% overlap with that of the Gooniyandi People, and a 0.63% overlap with the registered claim of the Kurungal native title party. 28.26% of the subject area does not overlap any registered native title parties.
On 3 January 2006, being a date more than six months after the s 29 notice was given and the normal negotiation period commenced, the State of Western Australia made an application pursuant to s 35 of the Act for a future act determination under s 38. The application states that the parties have reached agreement that the act, being the grant of EP 6/98-9, may be done and that the Kimberley Land Council (‘KLC’) (the designated representative body for native title claimants in the Kimberley region pursuant to s 203B of the Act) and the grantee party propose to execute an ancillary agreement. It foreshadows delays in the execution of State Deeds (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by all the negotiation parties (i.e. the Government party, grantee party and the native title party)) by each native title party ‘on the basis of cultural and climatic reasons’.
Appended to the s 35 determination application is a minute of a consent determination in the following terms subsequently executed in counterparts by Mr Richard Powrie, Principal Legal Officer for the KLC for and on behalf of the native title parties, Mr Dennis J Morton on behalf of the grantee party, and Mr Domhnall McCloskey (State Solicitor’s Office) on behalf of the Government party:
‘PROPOSED FUTURE ACT CONSENT DETERMINATION
Kurungal WAD6217/98 (WC97/101)
Bunuba WAD6133/98 (WC99/19)
Gooniyandi Combined #2 WAD6008/00 (WC00/10)
(Native Title Parties)
-and-
The State of Western Australia
C/- Department of Industry and Resources
(Government party)
-and-
Budside Pty Ltd
Pobelo Pty Ltd
(Grantee Party)
The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act1993.
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.
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 6/98-9 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 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).
The Inquiry
On 21 February 2006 the Tribunal conducted a preliminary conference at which it all parties were represented. It became clear that although the matter has been before the Tribunal in mediation pursuant to s 31(3) of the Act and parties had indicated consent to the doing of the act in that forum, the application for a consent determination had been lodged somewhat prematurely as an ancillary agreement had not been fully agreed and executed. Ms Maryie Platt from the Department of Industry and Resources (Government party) advised that the application had been made pursuant to discussions during a mediation meeting in December 2005, and that the Government party would seek to continue with the application on the basis that parties had reached agreement in principle. All parties were agreeable to this proposal and accordingly I adjourned the matter to permit the necessary authorities to be obtained.
During an adjourned preliminary conference convened on 15 May 2006 the representative for the native title parties, Ms Ania Maszkowski, advised that agreement had now been reached, but that the KLC preferred to proceed with the execution of State Deeds with each of the native title parties, rather than pursuing a consent determination. However, it was acknowledged that there could be logistical difficulties in obtaining signatures from each of the named applicants and parties proposed a further adjournment of the s 35 proceedings pending the gathering of the required signatures and certificates evidencing the death of a number of deceased applicants.
Throughout July 2006 three status conferences were convened to confirm progress with the execution of State Deeds. On 31 July 2006 it was established that although death certificates for each of the deceased applicants had been obtained, three signatures remained outstanding and that there was little prospect of securing those signatures in a timely manner, if at all, because of the location of those persons and the lack of contact details. I observed that the Tribunal had accommodated parties’ wishes in continuing with the s 35 application, but that pursuant to s 36(3) of the Act the Tribunal has a statutory obligation to report to the Commonwealth Minister the reasons for failing to make a determination within six months starting when the application was made. Accordingly I directed that the KLC advise the Tribunal within seven days of 31 July whether they had authorisation to consent to a consent determination in the absence of fully executed State Deeds and, in the event that authorisation had not been obtained, directed that the Government and grantee party consider whether they sought to proceed with the s 35 application.
Following a number of delays while the KLC sought evidence of its authorisation to consent, the Tribunal was provided with the affidavit of Brendan Ambrose Renkin, Future Acts Legal Officer with the KLC, affirmed 3 October 2006 in the following terms:
‘I, Brenda Ambrose Renkin, of 36 Pembroke Street, Broome, in the State of Western Australia, Solicitor, solemnly and sincerely declare and affirm:
1. I am employed as the Future Acts Legal Officer by the Kimberley Land Council Aboriginal Corporation (‘KLC’).
2. I have been informed by Ms Sonya Kilkenny, KLC Legal Officer, that during 2005 the KLC, on behalf of the Native Title Party, and the Grantee Party carried out negotiations in relation to a Native Title and Heritage Protection Agreement (‘HPA’) between the parties in relation to the grant of Petroleum Tenement EP6/98-9 (‘the Tenement’).
3. Ms Kilkenny has further informed me that each of the Native Title Claim Groups (‘Claim Group’), Bunuba, Gooniyandi and Kurungal, that make up the Native Title Party, held Claim Group meeting on or about 4 and 5 October, 2005, and that during those meetings each Claim Group provided its instructions in relation to the HPA, including authorising KLC to negotiate and enter into the HPA on its behalf.
4. It is standard KLC practice that when obtaining instructions in relation to the authorisation of KLC to negotiate and enter into agreements on behalf of Native Title Claim Groups, the KLC obtains authorisation to do all things reasonably necessary to facilitate that agreement, inter alia, to give consent to a determination by the National Native Title Tribunal that the act may be done subject to the terms and conditions of the agreement.
5. In or about April 2006, the Native Title Party and the Grantee Party reached agreement that the grant of the Tenement (‘Future Act’) may be done, subject to the terms and conditions of the HPA.
6. On 20 April, 2006 a final version of the HPA was forwarded by the KLC to the Grantee for execution by the Grantee.
7. On or about 10 May, 2006, the KLC received three copies of the HPA executed by the Grantee.
8. In or about May, 2006, the KLC received three Deeds for Grant of Petroleum Title (‘State Deed’) between the State of Western Australia, the Minister for Resources assisting the Minister for State Development, the Grantee and each of the three Native Title Claim Groups that make up the Native Title Party. A copy of each State Deed is annexed to this affidavit and marked “BAR1”.
9. On or about 31 May, 2006, the Stated Deed was forwarded to the relevant KLC Native Title Services Officer, Mr Ishmael Croft, in Fitzroy Crossing, with a request that the signatures of the named applicants for the Native Title Party be obtained.
10. On or about July, 2006 Mr Croft informed me, and I verily believe, that he had not been able to obtain all of the required signatures and he was about to go on leave for a number of weeks. Mr Croft then returned the State Deed to me in person in Broome before departing on leave.
11. On or about 24 July, 2006 I gave the State Deed to the KLC Future Acts Officer, Ms Ania Maszkowski, and requested that she obtain the remaining signatures of the Named Applicants.
12. I am informed by Ms Maszkowski and verily believe that between 24 July and 29 July, 2006, she travelled to and around Fitzroy Crossing and obtained all of the remaining signatures, except for MARJORIE BALDWIN-JONES, BUTCHER WISE (Kurungal) and JOHNNY MARR (Bunuba). I am informed by Ms Maszkowski that she was unable to locate Mr Wise, and informed that Ms Baldwin Jones resides in Canberra and Mr Marr resides in Perth.
13. I have been informed by Ms Athlea Sullivan, KLC Native Title Services Manager, and verily believe, that she has had personal acquaintance with the Bunuba, Gooniyandi and Kurungal Native Title Claim Named Applicants and Claimants for a number of years, and that from her personal knowledge the named applicants ADAM ANDREWS, BANJO WURRUNMURRA, BILLY OSCAR (Bunuba) CHAD ATKINS (Kurungal), DORA SHARPE, RITA SHANDLEY, SUZIE LAMEY, TEDDY CRANBILL (Gooniyandi), are deceased. Ms Sullivan further informs me that the persons referred to in the annexed documents marked “BAR 2” are those same persons.
14. In the light of the Native Title Party’s instructions given in October 2005 and the difficulties in obtaining all the necessary signatures for the State Deed, the KLC proposes to consent to a determination by the National Native Title Tribunal that the Future Act may be done in order to give effect to the HPA.
15. I believe that consent to such a determination is consistent with the instructions of the Native Title Party.’
Appended to the affidavit were copies of partially executed State Deeds for each of the native title parties and copies of death certificates for each of the deceased named applicants evidencing the details provided in the affidavit.
The native title parties are legally represented and the information provided in the affidavit evidence of Mr Renkin persuades me that there is nothing in the facts of this matter which makes a consent determination inappropriate.
Findings
I take into account that as the 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)); see also Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner at [10]. Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the KLC’s legal representative on whether the appropriate consent has been given by the native title parties. As a consequence, I am satisfied that the native title party has consented to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit EP6/98-9 to Budside Pty Ltd and Pobelo Pty Ltd may be done.
Daniel O’Dea
Member
24 October 2006
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