Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd/Ronald Crowe and Others on behalf of Gnulli/Western Australia

[2004] NNTTA 95

NATIONAL NATIVE TITLE TRIBUNAL

Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd/Ronald Crowe and Others on behalf of Gnulli/Western Australia, [2004] NNTTA 95 (20 October 2004)

Application No:        WF04/25

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 Application

Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd (grantee party/Applicant)

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Ronald Crowe and Others on behalf of Gnulli (WC97/28) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date:  20 October 2004

Catchwords:  Native title – future act – application for determination for the grant of petroleum exploration permit – consent determination that the act may be done

Legislation:Native Title Act 1993 (Cth), ss 35, 38

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

Hearing date: 18 October 2004

Counsel for the

native title party:             Mr Raf Melerski, Yamatji Land and Sea Council

Representative of the      

grantee party:                 Mr Craig Marshall, Gulliver Productions Pty Ltd

Representative of the      Ms Karen Dougall, State Solicitor’s Office

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

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 14 November 2001, 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 EP16/00-1 (‘the proposed permit’) under the Mining Act 1978 (WA) to Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd, Empire Oil Company (WA) Pty Ltd, Euro Pacific Energy Pty Ltd and Vigilant Oil Pty Ltd (‘the grantee party’).

2. The native title party in respect of these proceedings is:

• Mr Laurence Cooyou, Mr Ronald Crowe, Mr Sydney Dale, Ms Gwen Cooyou, Ms Mary Franklin, Ms Ruby McIntosh, Ms Sharon Crowe on behalf of Gnulli (WC97/28).

1. On 5 October 2004, being a date more than six months after the s 29 notice was given, the grantee party, Empire Oil Company (WA) Limited, Euro Pacific Energy Pty Ltd, Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd and Vigilant Oil Pty Ltd, made an application pursuant to s 35 of the Act for a future act determination under s 38.

2. The s 35 determination application was accompanied by correspondence from Mr Craig Marshall, Managing Director of Gulliver Productions Pty Ltd, on behalf of the grantee party, requesting a consent determination and attaching a minute of a consent determination in the following terms executed in counterparts by Mr Raf Melerski (Yamatji Land and Sea Council, (‘Yamatji’)), Mr Craig Marshall, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the native title party, grantee party and Government party respectively.

‘DETERMINATION

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 Native Title Party and the Grantee Party 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 consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 16/00-1 may be done.’

4. The s 35 determination application appends a copy of Deed for Grant of Petroleum Title (a State Deed - being an agreement for the purposes of s 31(1)(b) of the Act), executed by representatives for each of the companies comprising the grantee party and each of the named applicants for the Gnulli native title claim, warranting that they are authorised to execute the Deed on behalf of the native title party and all persons included in the native title claim group. The State Deed is not executed by the Government party.

5. 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).

6. Paragraph 10 of the s 35 application advises that the parties have reached agreement regarding the proposed permit and that an ancillary agreement between the native title and grantee parties dated 14 September 2004 has been executed. The application further states that the appended State Deed, although executed by the grantee party and each of the named applicants for the native title, contains a “clerical error”, being the mis-representation of the name of the company Empire Oil Company (WA) Limited as Empire Oil Company (WA) Pty Ltd. The applicant advises that the Government party is not able to execute the Deed until such a time as all parties have initialled amendments correcting the error. The application continues by indicating that the representative for the native title party has foreshadowed “access and resourcing difficulties” in obtaining the initials of the named Gnulli applicants to the State Deed amendment. The Gnulli working group is not scheduled to meet again in 2004 and two of the named applicants reside outside the Yamatji area, thus making it more difficult for its Project Officers to contact them.

7. I am satisfied from the evidence produced that the misdescription of Empire Oil Company (WA) Limited in the s 29 notice and State Deed as Empire Oil Company (WA) Pty Ltd was a clerical error. The error is not such as to call into question the validity of the s 29 notice.

The hearing

1. On 18 October 2004 the Tribunal conducted a hearing at which the representatives of the parties confirmed their consent to the future act determination in the terms sought.  In particular, Mr Raf Melerski counsel for the native title party confirmed that the native title party had consented to the grant of the proposed permit and to the proposed future act determination.  Further, the existence of a State Deed executed by each of the named applicants for the Gnulli native title claim (which would have been signed by the Government party and lodged with the Tribunal if it had not contained the clerical error) is further evidence to support my finding that the native title party consents to the determination sought.

Determination

1. By consent the determination of the Tribunal is that the act, namely the grant of Petroleum Exploration Permit EP16/00-1 to Gulliver Productions Pty Ltd, Indigo Oil Pty Ltd, Falcore Pty Ltd, Empire Oil Company (WA) Pty Ltd, Euro Pacific Energy Pty Ltd and Vigilant Oil Pty Ltd, may be done.

Hon C J Sumner
Deputy President
20 October 2004