Darcy Hunter and Others on behalf of the Nyangumarta People (WC98/65); Frank Sebastian, Joseph Roe & Others on behalf of the Rubibi People (WC99/23); John Dudu Nangkiriny & Others on behalf of the Karajarri People... - [2004] NNTTA 105

NATIONAL NATIVE TITLE TRIBUNAL

Darcy Hunter and Others on behalf of the Nyangumarta People (WC98/65); Frank Sebastian, Joseph Roe & Others on behalf of the Rubibi People (WC99/23); John Dudu Nangkiriny & Others on behalf of the Karajarri People (WC00/2)/ Western Australia/Gulliver Productions Pty Ltd; Indigo Oil Pty Ltd; Maneroo Oil Company Limited, [2004] NNTTA 105 (11 November 2004)

Application No: WF02/4

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

Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd and Maneroo Oil Company Ltd (Applicant/Grantee party)

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Darcy Hunter and Others on behalf of the Nyangumarta People (98/65); Frank Sebastian, Joseph Roe & Others on behalf of the Rubibi People (99/23); John Dudu Nangkiriny & Others on behalf of the Karajarri People (WC00/2); (Native Title parties)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon E.M. Franklyn QC, Deputy President
Place:  Perth
Date of reasons:         11 November 2004

Catchwords: Native title – future act – petroleum exploration permit - application for determination for the grant of petroleum exploration permit – effect of determination of native title - ancillary agreement entered into over part area - determination that the act may be done.

Legislation:Native Title Act 1993 (Cth) ss 29, 35, 38
Mining Act 1904 (WA)
Mining Act 1978 (WA)
Petroleum Act 1936 (WA)
Petroleum Act 1969 (WA)

Cases:Nangkiriny v State of Western Australia (2002) 117 6; FCA 660
Nangkiriny v State of Western Australia [2004] FCA 1156

Representative of the

Native Title party: Ms Krysti Guest, Senior Legal Officer, Kimberley land Council

Representative of the

Grantee party: Mr Craig Marshall, Gulliver Productions Pty Ltd

Representative of the
Government party: Ms Maryie Platt, Department of Industry and Resources

REASONS FOR DECISION THAT THE ACT MAY BE DONE

On 25 August 1999 the State of Western Australia (“the State”) gave notice under section 29(2) of the Native Title Act (“the Act”) that it may grant an exploration permit for petroleum to Indigo Oil Pty Ltd, Maneroo Oil Company Ltd and Gulliver Productions Pty Ltd (“the Grantee”) for permit area numbered 2/98-9 (“the permit area”). The Nyangumarta People (WC98/65) were registered under the Act as native title claimants of land included in the permit area on 29 September 1999 and the Rubibi People (WC99/23) and the Karajarri People (WC00/2) were respectively registered as native title claimants over lands included in such area on 24 September 1999 and 25 April 2000 respectively. Those Peoples are jointly hereafter referred to as the “Native Title parties”. The respective native title interests in the permit area were notified to the Grantee by the then Department of Minerals and Energy on behalf of the State on 7 June 2000.
On 12 February 2004 the Federal court determined that the Karajarri People held named exclusive native title rights including “the right to possess, occupy, use and enjoy the land and waters to the exclusion of others”, in and to an area of land forming part of the land the subject of its native title claim WC00/2 (Nangkiriny v State of Western Australia (2002) 117 6; FCA 660). The determination related to an area (referred to therein as Determination Area A) comprised of Fraser Downs Pastoral leases held by the Karajarri Traditional Lands Association, unallocated Crown land and reserves for the use and benefit of Aboriginal people. The determination made clear that the native title rights include ochre but not other minerals and petroleum as defined in the Mining Act 1904 (WA), Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1969 (WA). It also held that “the other rights and interests” specified in its Third Schedule, to the extent that they are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, are not affected to the extent of the inconsistency for so long as they exist, and prevail over the native title rights and interests and do not extinguish them. It is not necessary to list those other rights and interests as set out in the said Third Schedule.
On 19 April 2002 the Grantee lodged an application (amended on 6 May 2002) under section 35 of the Act for a future act determination alleging inability to reach agreement with the Native Title parties despite negotiations over a period from 11 July 2000 to 5 March 2002 which included mediation at the Grantee’s request. The application was accepted by the Tribunal on 7 May 2002. I was appointed the Member to conduct the section 35 inquiry.

Background

Following a request by the Grantee in May 2002 that a s 150 conference be held to resolve the issues the s 35 inquiry was adjourned, and again adjourned from time to time whilst the parties continued to negotiate and arrangements for a s 150 conference were made. By letter dated 7 August 2002 the Grantee advised that negotiations had failed and that it wished to proceed with its s 35 inquiry. The issue of failure on the part of the Grantee to negotiate in good faith was then raised by the Native Title parties and on 29 August 2002 I issued directions in relation to that issue. The time for compliance with the directions by the Native Title parties was extended by consent from time to time and the parties continued to negotiate. The history of the negotiations between the parties and the respective contentions and submissions of the native title and other parties are set out in my reasons for the determination of the good faith issue published on 2 May 2003. I determined that the Grantee had negotiated in good faith and that the Tribunal had jurisdiction to determine the s 35 application.
A draft of the directions proposed to be made in respect of the substantive hearing was distributed to the parties on 16 May 2003. Directions in terms of the draft were issued on 9 June 2003, with a listing date being set for 30 July 2003. The State duly complied with its obligations under Direction 1 of those directions. On 14 July 2003 the Grantee advised that it had reached substantial agreement with the Nyangumarta People and applied to withdraw that part of the s 35 determination application as related to those people. On the same day the representative of the Nyangumarta People advised that it had no objection to that withdrawal. On 18 July the Karajarri People sought an extension of time to comply with the directions as they related to them and on 21 July the Grantee sought a s 150 conference in respect of issues with the Karajarri and Rubibi Peoples. A directions hearing was convened for 28 July 2003, when the respective times for compliance by the parties with the directions of 9 June were further extended. On 11 August 2003 the Tribunal received a formal written withdrawal by the Grantee of the s 35 application as it related to the Nyangumarta People with advice that total agreement between the Grantee and those people was expected within three to four weeks.
On 15 August 2003 the Tribunal was advised by Tribunal Member McFarlane, by letter, that he was conducting a s 150 conference with the remaining parties of the s 35 inquiry pursuant to which he had held meetings with each of the Karajarri and Rubibi people which led him to believe that agreement between all of the parties was likely. He advised he had further meetings scheduled for 25 and 26 August and that he supported a request, which he understood was to be made by the Native Title parties, for a further extension of time for compliance. On 19 August 2003 the Grantee supported the request and on 20 August the Kimberley Land Council (KLC) representing the Native Title parties sought a three week extension of time, referring to Member McFarlane’s letter to the Tribunal.
On 29 August 2003 I issued directions extending the time for compliance with the directions of 9 June 2003 by the Native Title party (Direction 2) to on or before 12 September 2003, by the Government party and the Grantee (Direction 3) to on or before 26 September 2003, by all parties (Direction 5) to on or before 10 October 2003, and providing for a listing hearing on 17 October 2003. The directions otherwise remained as made on 9 June 2003. On 10 September 2003 the KLC advised that the Karajarri and Rubibi people would not be complying with the directions of 29 August 2003, claiming that agreement pursuant to s 31(1)(b)(ii) with the Grantees had been reached in respect of the land the subject of the Rubibi native title claim and so much of the land the subject of the Karajarri native title claim as was not land in respect of which a consent determination of native title had been made by the Federal Court on 12 February 2002 (‘the undetermined area’). Such advice turned out to be incorrect in that no such agreements had been concluded.
On 11 September 2003 Member McFarlane advised that agreement had been reached between the Grantee and the Rubibi people and agreement in principle between the Grantee and the Karajarri people with respect to the undetermined area, but that the agreements had not yet been reduced to writing. Consequently the parties were notified that compliance with the dates set on 29 August 2003 was not required and new compliance dates would be advised, if necessary, in due course. Inquiries were made of the KLC on 3 October 2003 as to whether the agreements said to have been reached and State Deeds had in fact been executed, advising that on production of State Deeds new directions would be set for a determination in relation to Karajarri land over which native title had been determined, (‘the determined area’). On 8 October 2003 the KLC enquired whether the matter could be finalised by a consent determination as the agreements relied on had not yet been finally drafted. Subsequent enquiry of the KLC and the State as to the progress of these agreements revealed concern as to whether the State could or would enter into a State Deed with the other parties over the undetermined area and consent to a s 35 determination over the determined area. The KLC advised it could not complete draft heritage agreements with the Rubibi people and Karajarri people before 29 October 2003.
By letter dated 13 November 2003 KLC advised that ‘an agreement to the grant of the permit has been reached between the Grantee party and Rubibi’ and that ‘the Karajarri have reached agreement with the Grantee party over the area in which their native title application has not yet been determined. However no agreement could be reached over the area which is the subject of a Federal Court determination of exclusive possession native title’. The letter stated that in respect of the areas the subject of agreement, the Native Title party would seek to finalise the matter through State Deeds and would ask the State to provide a map identifying the respective areas in respect of which agreement was reached and was not reached. It went on to advise that the Karajarri do not have the resources to participate in a s 35 inquiry to the extent of providing appropriate submissions and evidence in respect to the determined area, but expressed the view that the activities of the Grantee will necessarily impact on the Karajarri determined rights to possession, occupation, use and enjoyment of the land and waters to the exclusion of all others “particularly in relation to the following”:

a. the right to maintain and protect important places and areas of significance to the Karajarri people under their traditional laws and customs on the land and waters; and

b. the right to control access to, and activities conducted by others on the land and waters including the right to give permission to other to enter and conduct activities on the land and waters on such conditions as the Karajarri people see fit; and

c. the right to make decisions about the use and enjoyment of the land and waters.

It expressed the view that the following “conditions” should be imposed on the grant of the exploration permit over the then determined area:

‘1. that the grantee party enters into a standard Kimberley native title and heritage protection agreement with the Karajarri (in relation to sub paragraph a. above)

2. That in recognition of the Grantee party being granted the right to enter an use Karajarri country, the grantee party pay the Karajarri 5% per annum of ongoing costs of their exploration as part of the community benefits aspect of the native title and protection agreement (in relation to sub paragraphs b. and c. above).’

No particulars of the proposed heritage protection agreement were provided.

On 1 December 2003 the State representative advised that he was meeting with the Grantee to canvass the possibility of agreement in respect of the determined area and would seek a hearing to consider the KLC request for conditions to be imposed on the grant of tenements on that area by way of determination. He raised the possibility of further s150 conferences in respect thereof.
I convened a hearing of the matter on 12 January 2004 at which it was confirmed that there was still no concluded agreement between the Grantee and the Nyangumarta people and no State Deed. I pointed out that as the Grantee had withdrawn the s 35 application for a determination, that application was currently of doubtful validity, as no determination could be made that the act could be done, the ‘act’ being the grant of the permit area and so necessarily including the Nyangumarta land. As to the conditions which the KLC suggested should be imposed on a determination affecting the determined area, I advised the parties that I would not impose any such conditions as a result of the request and whether any conditions could or should be imposed would depend on the evidence and submissions. I adjourned the hearing to 30 January 2004 with advice that at that hearing the s 35 application might be dismissed unless the Nyangumarta were rejoined as a party or there was an executed State Deed that the grant as proposed could be made in respect of the Nyangumarta land.
On 27 January 2004 I was advised that a further s150 conference between the Grantee and Nyangumarta was to be convened.
On 29 January 2004 the Grantee made a written request to reinstate the s 35 application in respect of the Nyangumarta people, which request was granted.
On 30 January 2004 I issued directions varying those of the 9 June 2003, by directing the State to lodge any further material the subject of Direction 1 on 14 February 2004, each Native Title party to comply with Direction 2 on or before 5 March 2004, the State and the Grantee to comply with Direction 3 on or before 19 March 2004 and setting a listing hearing for 26 March 2004. The Grantee complied on 18 March and the State on the 22 March 2004. There was no compliance by any Native Title party. I was subsequently advised that s 150 conferences were on foot.
On 9 March 2004, the KLC advised that an agreement that the grant may be made had been reached between the Grantee and the Rubibi people and a similar agreement reached between the Grantee and the Karajarri people in respect of the undetermined area, and that the KLC was endeavouring to finalise the same by State Deeds. In respect of the determined area, the letter submitted that a condition should be imposed by way of determination that the Grantee enter into a Native title Heritage Protection Agreement “as agreed with the Karajarri”.
On 25 March 2004 the Tribunal was advised that because of a cyclone affecting Broome the KLC representative could not be a party to the listing hearing of the 26 March and that she could not get the State Deeds executed until the Ancillary Agreements were finalised.
At the hearing on the 26 March the State, with the consent of the Nyangumarta People’s representative and the Grantee, was given leave to lodge and serve further evidential documents. Final execution of the Nyangumarta Ancillary agreement was said to be held up due to the death of one of the named registered native title claimants and the difficulty in obtaining a certificate of death. The hearing was adjourned to 13 April 2004.
On 13 April 2004 a representative of the KLC advised that the solicitor normally handling the matter was not available to attend the hearing, but believed an ancillary agreement between the Grantee and each of the Rubibi and Karajarri people would be finalised and executed within the next 3 weeks. On the same date the Nyangumarta People representative advised that the necessary documentation relating to proof of death of the deceased named Nyangumarta registered native title claimant would shortly be sent to the State. The hearing was adjourned to 22 April and then to the 26 April 2004.
On 26 April 2004 progress as to the execution of the ancillary and State deeds was examined. Death certificates were still awaited in respect of two deceased named registered native title claimants for the Karajarri People, one such deceased for the Nyangumarta People and one such deceased of the Rubibi People. The likelihood of completed State and ancillary agreements in the near future was said to be high, the delays resulting from the transmission of documents from one party to the other and obtaining proof of death sufficient to enable the State to enter into the State deeds. The KLC advised that the Karajarri People would not lodge contentions as directed in respect of the determined area. I advised that without the support of evidence I would not impose the condition sought by the KLC on 9 March on a determination in respect of the Karajarri land. The hearing was adjourned to enable documentation of the agreements to be finalised.
On 20 May 2004 a State deed executed by the State, the Grantee and the surviving registered native title claimants of the Nyangumarta People, agreeing that the grant may be made and acknowledging it to be an agreement for the purposes of s28(1)(f) and s31(1)(b) of the Act, was lodged with the Tribunal.
On 20 June 2004, following a further s 150 conference, the Tribunal was advised by the KLC that a State Deed in respect of the Rubibi People agreeing that the grant may be made, had been “signed”. On 27 June 2004 the KLC further advised, by affidavit of Miss Krysti Guest a solicitor in its employee, that because of the difficulties in obtaining the signatures of the Karajarri named registered native claimants to the State Deed, it would seek a consent determination in respect of the undetermined area at the hearing on the 28 June 2004.
At that hearing I queried whether, proof of death of the deceased Karajarri people being not yet available, a consent determination in respect of the undetermined areas only of Karajarri land the subject of the proposed grant was the quickest and most appropriate way of dealing with the matter as a determination was required to be made in any event in respect of the determined area. I expressed the opinion that in the absence of consent as to the determined area, it was more appropriate to deal with the s 35 application as a non-consent application in respect of the whole of the Karajarri land over which the grant was sought. Representatives of all parties agreed with that suggestion. The KLC representative advised that neither the Karajarri People or the Rubibi People would lodge submissions or documents in accordance with the directions made and confirmed again that agreement that the act may be done that had been reached between the Grantee and the Rubibi People in respect of the Rubibi land with a State Deed pending and with the Karajarri People in respect of the undetermined area only. I queried whether the s 150 conference had now been concluded and advised that when I was informed that such was the case I would proceed with the determination which, unless some reason the contrary was provided, would be on the papers.

By letter dated 21 July 2004 the KLC confirmed that the Rubibi People had executed a State Deed and had sent it to the Grantee for execution, that it was content that the s 35 application should proceed to determination in respect of the whole of the Karajarri land the subject of the proposed grant, that it would not be lodging any submission or producing any evidence in respect of the application or determination and that it accepted that the determination would probably be that the grant may be made. The letter “noted” that “a Native Title Heritage Protection Agreement has been entered between the KLC and the Grantee parties in relation to that area of the Karajarri native title application that has been determined by the Federal Court” and confirmed “that this agreement will remain in force consequent to a positive determination in this matter”. I caused the accuracy of the matter so “noted” to be queried with the KLC which agreed that the statement was an error and should have referred to an agreement in respect of that area of the Karajarri native title application as had not been determined by the Federal Court.
On the 5 August the Grantee advised that it had forwarded to KLC fully executed stamped copies of Heritage Protection Agreements in respect of “2/98-99” between the Grantee and the Rubibi People and the Grantee and the Karajarri People respectively. On the 11 August 2004 an executed State Deed between the State, the Grantee and the Rubibi People, acknowledged in the Deed as an agreement for the purposes of s28(1)(f) and s31(1)(b) of the Act, was lodged with the Tribunal.
The material provided by the State pursuant to the directions made was not specific to the Karajarri land, but referred to the whole of the area the subject of the proposed exploration permit. Consequently, I requested that the State provide evidence as to the land tenure, mining and petroleum tenements and recorded Aboriginal sites on the Karajarri land so that the requirements of s 39 in respect of that land could be properly considered, the material so provided to be made available to the Grantee and the KLC. Such material was provided by the State on 13 September 2004.
On 8 September 2004 the Federal Court issued a Consent Determination (Nangkiriny v State of Western Australia [2004] FCA 1156) reflecting an agreement reached by the Karajarri People and the other parties in respect of the undetermined area of the land the subject of those peoples’ Native title Claim WC00/2, referring to that area as “Determination Area B”, determining that the Karajarri People in respect thereof held non-exclusive native title rights to use and enjoy the undetermined land and waters:
(A)With respect to named Pastoral leases comprising Nita Downs Station, Shamrock Station and Anna Plains Station respectively:
(i) the right to enter and remain on the land and waters;
(ii) the right to camp and erect temporary shelters;
(iii) the right to take fauna and flora from the land and waters;
(iv) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin;
(v) the right to take the waters including flowing and subterranean waters;
(vi) the right to engage in ritual and ceremony; and
(vii) the right to care for, maintain and protect the physical harm, particular sites and areas of significance to the Karajarri people.
(B)With respect to specified Reserves, parts of Reserves and unallocated Crown land, the same rights as set out in para (A) above.
(C)With respect to the area of the land and waters between the mean high water mark and the lowest astronomical tide and any other tidal waters;
(i) the right of access to the land and waters;
(ii) – (v) those rights numbered (iii), (iv), (v), (vi) and (vii) set out in para (A) above.

It determined that those rights are exercisable in accordance with the traditional laws and customs of the Karajarri People for personal domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but do not confer any right of possession, occupation, use and enjoyment on those people to the exclusion of all others.

The determination found Native title rights and interests to have been wholly extinguished in respect of specified unallocated Crown land, portion of pastoral lease 3114/1154, and Optical Fibre Regenerator plants the subject of Pardu Location 65 and Dampier Location 319 and made findings in respect of specified “other rights and interests” (set out in Schedule 2 of the determination), their continuation and that they prevail over the native title rights to the extent of any inconsistency; that, to the extent that any of the their rights and interests is a Category D Past Act (s 232E), a Category D Intermediate Period Act (s 233) or a Future Act (s 233), and is inconsistent with the continued existence, enjoyment or excise of native title rights and interests, the native title rights and interests continue to exist in their entirety but have no effect in respect of the “other rights and interests” to the extent of inconsistency; and that otherwise, save in relation to the “other rights and interests” referred to in paragraph 5(c) and (e) of the Second Schedule to the Determination (which coexist with the native title rights and interests), the “other rights and interests” prevail, but do not extinguish the native title rights and interests.
It further specified areas which had been excluded from the Native title determination application and consequently excluded from Determination Area A as being areas where previous exclusive possession acts have occurred and native title has been completely extinguished. Those areas are Reserves 16721, 16722, 16723, 36472, 42063 and part of Reserves 35918 and 38936, Special Lease 3116/5247 and Public Roads Great northern highway and Road number 3658.
On 13 September 2004, the State lodged with the Tribunal and other parties, maps and accompanying textual information providing the evidence I sought as to the land tenure, mining and petroleum tenements and recorded Aboriginal sites within the Karajarri claim area.

State material relating specifically to Karajarri land

The additional information lodged by the State reveals that:
(A)within Determination Area A the permit encompasses unallocated Crown land, in addition to the following other tenures:
1. Petroleum exploration permits EP 390 R1; EP391 R1 and EP 422;
2.    Petroleum exploration permit applications App 2/96-7; App 9/98-9 and App 14/00-1;
3.    Mining leases M04/244 andM04/249;
4.    Exploration licences E04/1161; E04/1344; E04/1424; E04/1425; E04/1445; E04/1449; E04/1450 and E04/1451;
5.    Prospecting Licence P04/208;
6.    Portions of Aboriginal community owned pastoral leases 398/681; 398/744; 398/761 and 3114/483;
7.    Aboriginal Affairs Planning Authority Reserve “Use and benefit of Aborigines” 11175;
8. Aboriginal Lands Trust Reserve “Health clinic” 36472, (This however is excluded by the determination of 8 September 2004 from the Native title determination application and from ‘Area B’ pursuant to S 61A of the Native Title Act);
9.    Aboriginal Lands Trust Reserves “Use and benefit of Aboriginal inhabitants” 38399 and 41648; and
10.   Reserve “School site” 36473.
(B)within Determination Area B the permit encompasses unallocated Crown land and the following additional tenures:
1.    Petroleum exploration permit EP 422;
2.    Petroleum exploration permit applications App 9/98-9 and App 14/00-1;
3.    Exploration licences E04/1344; E04/1424; E04/1425; E04/1445; E04/1449; E04/1450 and E04/1451;
4.    Freehold land Dampier locations 22; 65; 129; 248 and 296;
5.    Aboriginal Lands Trust Reserve “Use and benefit of Aboriginal inhabitants” 36472;
6.    Portions of non-Aboriginal community owned pastoral leases 398/682; 398/770; 3114/604; 4114/789 and 4114/1154.
7.    Reserves “Geodetic Station’ 32602; 32603; 32604; 32605; 32606; 32607 and 32608;
8.    Water and Rivers Commissions Reserves “Water” 16720; 16721; 16722 and 16723, [save for Reserve 16720 these reserves are excluded from the Native title Determination application and Determination Area B by the Determination of 8 September 2004);
9.    National Parks and Nature Conservation Authority Reserve “Conservation of flora and fauna” 35918, (excluded from the Native title Determination application and Determination Area B by the determination of 8 September 2004);
10.   Commissioner of Main Roads Reserve “Gravel” 42063, (excluded from the Native title Determination application and Determination Area B by the determination of 8 September 2004);
11.   Reserve “School site” 36473; and
12.   Reserve “Foreshore” 39139.
(C)Reserve 9697, the Kimberley-De Grey Stock route transects portions of both Area A and Area B within the permit area.
The additional information lodged by the State revealed that within the permit area are 41 Aboriginal sites registered pursuant to the Aboriginal Heritage Act 1972; most being on the Permanent Register. These known sites are distributed across both Area A and Area B but are predominantly located on or adjacent to the coast. The following Aboriginal communities are also noted as being located within Determination Area A:
·     Bidyadanga Community;
·     Brubrunganjal Community;
·     Nygah Nygah Community;
·     Rollah Group Community;
·     Wanamulyungong Community; and
·     Yardoogarra Community.
On 15 September 2004 The State advised that it wished to make submissions in respect of the Determination in respect of Determination Area B. The other parties had no objection to this request. No submissions having been received by 1 October 2004, I issued directions for the provision of any further submission by the parties, the State to comply by 15 October 2004, the Native title party by 22 October 2004 and the Grantee by 29 October 2004. The State’s submissions were received on 19 October 2004. They were mainly directed to the question of compensation, submitting that there should be no condition relating to compensation imposed on the grant.

Grantee Submission

s 39(1)(a)(i), (ii) & (iii)

The Grantee complied with the varied directions of 9 June 2003 on 24 March 2004. It contends that the grant will not affect any native title rights or interests. It advised that if the permit is granted, ground disturbing activities within the permit area would most likely occur in the third, fifth and sixth years from the grant, most likely in the dry season and be of 4 to 8 weeks duration, averaging about 6 weeks per year. These activities, they say, will not affect the rights and interests of the native title holders and claimants. It also contends that the grant may increase the development of the native title parties social, cultural and economic structures, as if commercial quantities of petroleum are discovered and a production license granted, it will be subject to a Native title Agreement providing significant benefits, including additional and improved roads, water bores, heritage surveys, job training and employment, as well as compensation for loss of possession of part of the land surface.

s 39(1)(a)(iv)

The Grantee contends that, bearing in mind the duration and extent of ground disturbing operations as set out above, the freedom of access of the respective native title parties to the land or waters concerned will not be significantly affected. Further, it is the Grantees intention to conduct Heritage Protection Surveys in conjunction with the relevant land councils and traditional owners over the area of any proposed ground disturbance operations and states that no operation will be conducted in areas of heritage and cultural significance, and so, the freedom to carry out rights, ceremonies and other activities of cultural significance in accordance with their traditions will not be affected.

s 39(1)(a)(v)

As to sites of particular significance in accordance with the native title parties respective traditions, the Grantee points out that the grant will be subject to conditions and require compliance with the Aboriginal Heritage Act, for the purposes of which the Grantee will conduct the Heritage Protection Surveys referred to above. As to the environment, the Grantee asserts that the grant will not affect any assessment of the natural environment of the lands or waters concerned by any Court, Tribunal, Crown commission or statutory authority as petroleum activities which impact on the community environment are subject to approval processes under Commonwealth and State jurisdiction, such processes being set out in a document entitled “Proposals under State and Commonwealth Jurisdiction” issued by the Department of Industry and Resources, a copy of which is annexed to the Grantee’s submissions. Also annexed are a document entitled “Environmental Assessment Process for Petroleum Activities in Western Australia” issued by the Petroleum Division of the Department of Industry and Resources and a document entitled “Petroleum Statistics” set out in the Department of industry and Resources web site under Resource and Economics Statistics.

s 39(1)(b)

The Grantee submits that the interests, proposals, opinions and wishes of the native title parties in relation to the management, use and control of the lands and waters will not be affected as they will have full input into the conduct of petroleum activities on their respective lands by reason of their involvement in the said Heritage Protection Surveys.

s 39(1)(c)

The Grantee submits that the grant could contribute significantly to economic benefits for the State of Western Australia as in the event of commercial quantities of petroleum being discovered and a Production License issued the State will receive Royalties of 10-12.5% of the well-head value of petroleum produced, imports of petroleum would be reduced, improving the balance of payments, improving the value of the Australia dollar and reducing interest rates. The submissions refers to the value of royalties received by the State, values of petroleum products and exports in 2002-2003 as reported in the Department of Industry and Resources web site referred to above.

s 39(1)(e)

The Grantee contends that the grant will not affect the rights of public interest in the area because of the conditions that are attached to the grant for the protection of other land users and occupiers and the payment of compensation (Petroleum Act 1967 (WA) – Section 17-21). Further that it will not affect any laws of the Commonwealth or State for the preservation or protection of any area or site of particular significance to the native title parties in accordance with their tradition.

On 25 October 2004 the Native Title party, by letter, stated that, as advised on 20 July 2004, it had settled and reached agreement with the Grantee party in respect of all land the subject of non-exclusive native title which, it said, included all of the land the subject of the consent determination and did not seek any condition, including any condition relating to compensation, to the grant of the permit area. Enquiry from the Grantee revealed that the only agreement between it and the Karajarri Native Title party related to the then undetermined area (Determination Area B).
By letter dated 27 October 2004 the Grantee confirmed on 3 May 2003 that it had entered into a Heritage Protection Agreement with the Karajarri Native Title Claim Group and the Kimberley Land Council Aboriginal Corporation in respect of the Karajarri Determination Area B and that it agreed with the submissions made by the State and would not itself make any further submissions.
I am satisfied that the issues, the subject of this inquiry, can be adequately determined by considering, without holding a hearing, the documents and other material lodged with or provided to the Tribunal.
So far as the Nyangumarta and Rubbi people are concerned, they have each entered in to an agreement with the State and the Grantee, executed as a deed and acknowledged therein as an agreement for the purposes of ss 28(1)(f) and 31(1)(b) of the Act, that the grant of the permit may be made insofar as it will be over land situated on their respective native title claims. Neither of such parties has lodged any submissions, contentions or evidence with the Tribunal pursuant to the directions of 9 June 2003 and 30 January 2004 or otherwise has expressed concern as to the effect of the grant on the matters and things referred to in s 39(1)(a) and (b) of the Act. There is no evidence as to how any of the land the subject of the permit area is enjoyed by them, of their respective ways of life, culture and traditions, the development of social, cultural and economic structure, the carrying out of rites, ceremonies or other activities of cultural significance or of any area or site of particular significance. The said agreements were entered into after a long period of negotiation, including mediation, throughout which each had legal representation and which resulted not only in the said agreement but also, so far as the Rubibi people are concerned, in an ancillary agreement with the Grantee in respect of their land. It is not known if any ancillary agreement was entered into by the Nyangumarta people. The grant of the permit does not confer a right of exclusive possession on the Grantee and does not extinguish native title (see 24 MD 3(a) of the Act) Ward v Western Australia 2000 170 ALR 159 at [593]-[594]). I also have regard to the provisions of the Petroleum Act 1967 (WA) and in particular ss 15A, 95 and 115-117 thereof, and the Mining Act 178 (WA) and the Aboriginal Heritage Act 1972. I take into account the submissions of the State and the Grantee in respect of the mattes referred to in s 39(1)(c)(e) and (f) and find that the grant will have minimal effect on them. Taking into account the above matters, the respective registered native title rights and interests of the Nyangumarta and Rubibi people and the determination as to the rights and interests of the holders of “other rights and interests” in the two Karajarri determinations, I am satisfied that the effect of the grant of the permit in respect of the matters referred to in s 39(1) and (2) will be minimal and such as not to require any conditions on a determination that the act may be done.
The Karajarri determination of 12 February 2002 (over Determination Area A) and 8 September 2004 (over Determination Area B) together deal (inter alia) with the Karajarri land within the boundaries of the proposed permit area. The native title rights in respect of Determination Area A are exclusive but recognise that persons holding rights, such as mining rights, are entitled to exercise their rights. Those in respect of Determination Area B are not exclusive. There are pastoral leases on each of the said areas, those on Area A being vested for be benefit of the Karajarri people and those on Area B in non indigenous holders. The rights of the pastoral lease holders prevail over the native title rights of the Karajarri people to the extent of any inconsistency. As the information provided by the State reveals, petroleum permits and other mining tenements have been granted within Area A and Area B. Thus the native title holders of those lands would be conscious of any effect these grants would have in respect of the matters referred to in s 39(a) and (b) of the Act. I have taken into account all of the matters referred to in s 39 of the Act and the submissions of the State and the Grantee. I also have taken into account that the Karajarri Native title Party makes no claim for compensation. On the available evidence and material there is nothing on which such compensation could be assessed. The fact that no submissions have been made by the Karajarri people in response to the directions of 15 September 2004 together with the matters set out above leads me to the conclusion that the Karajarri people accept that the grant of the permit will not have any significant adverse effect upon the matters referred to in s 39(1)(a)(b) and (c).

Determination

The determination of the Tribunal is that the Act, being the grant to Indigo Oil Pty Ltd, Maneroo Oil Company Ltd and Gulliver productions Pty Ltd of Petroleum Permit EP2/98-9, may be done.

The Hon E M Franklyn QC
Deputy President

11 November 2004