Empire Oil Company (WA) Limited/State of Western Australia/ Martha Borinelli, Michael Egan, Arnold Franks and Others on behalf of the Yued families

[2003] NNTTA 118

NATIONAL NATIVE TITLE TRIBUNAL

Empire Oil Company (WA) Limited/State of Western Australia/ Martha Borinelli, Michael Egan, Arnold Franks and Others on behalf of the Yued families [2003] NNTTA 118 (24 November 2003)

Application:   WF03/13

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 (grantee party)

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The State of Western Australia (Government party)

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Martha Borinelli and Others on behalf of the Yued families (WC97/71) (Native Title Party)

FUTURE ACT DETERMINATION

Tribunal:                  Deputy President, The Hon. E.M. Franklyn

Place:  Perth
Date:  24 November 2003

Catchwords:  Native title - future act - proposed grant of petroleum exploration permits over lands the subject of two registered native title claims by different claimants - agreement reached by State grantee and registered native title claimant that the grant may be made in respect of the lands the subject of one such claim - agreement contains consent to arbitral determination - consent determination sought in respect of land subject of the second native title claim - one claimant deceased - heritage agreement with grantee entered into by all surviving registered claimants - one surviving registered claimant refuses to sign State Deed that act may be done - all other surviving claimants agree that the act may be done and support a consent determination - consent determination that act may be done.

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

Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon CJ Sumner, 22 June 2001

Hearing date:                23 October 2003

Representative of the

Native Title Party:       The South West Aboriginal Land and Sea Council, its representative body

Counsel for the

Native Title Party:       Ms Wendy Treasure, South West Aboriginal Land and Sea Council

Representative of the   Mr Craig Marshall, Managing Director, Empire Oil Company (WA)

Grantee Party:              Ltd

Representative of the   Ms Maryie Platt, Department of Industry and Resources

Government party:      Mr Rod Wahl, Crown Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

1. On 25 August 1999, 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 permits (EP5/98-9) under the Petroleum Act 1967 (“The Permits”) to Empire Oil Company (WA) Limited (“the grantee”).

2. The land the subject of the proposed permits covers land the subject of registered Native Title Claim WC99/6 on behalf of the Combined Metropolitan Working Group and land the subject of registered Native Title Claim WC97/71 on behalf of the Yued families.

3. On 22 September 2003, being a date more than six months after the s 29 notice was given, the grantee 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 the Combined Metropolitan Working Group (WC99/6) as the “First Native Title Party” and the registered Native Title Claimants on behalf of the Yued families (WC97/71) as the “Second Native Title Party”.

4. The registered Native Title Claimants on behalf of the Yued families are:

   Mr Arnold Franks, Mr Joseph Ryder, Mr Mal Ryder, Mr Michael Egan,

   Mr William Warrell, Ms Charmaine Walley, Ms Diane Lippy, Ms Edna Ryder,

   Ms Jenny Mogridge, Ms Martha Borinelli.

5. A death certificate certifying the death of one Michael George Egan of 43 Scott Street, Koongamia, Western Australia issued by the Registrar of Births Deaths and Marriages on 9 July 2002 was lodged with the Tribunal as establishing the death on 6 June 2002 of the abovenamed registered Native Title Claimant Mr Michael Egan.

6. All of the registered Native Title Claimants on behalf of the Yued families, with the exception of Mr Michael Egan said to have been earlier deceased, entered into and executed a Heritage Protection Agreement with the grantee, the same being also executed by the grantee.

7. A document, intended to be a deed to be executed by the State, the grantee and the surviving registered Native Title Claimants for the Yued families, providing that the said future Act may be done was executed by the State on 18 September 2003, the grantee on 27 June 2003 and by all of the surviving registered Native Title Claimants (Michael Egan being then deceased) other than Mr Arnold Franks, on various dates in April and February 2003.  Mr Arnold Franks having previously executed the Heritage Protection Agreement referred to in paragraph 6, refused to execute the proposed deed.  His reasons for refusal are not known.

8. A document referred to as a “State Deed”, expressed as being an agreement for the purposes of s 28(1)(f) and s 31(1)(b) of the Act that the said future act may be done, was executed by the State, the grantee and the Combined Metropolitan Working Group and lodged with the Tribunal on 8 July 2003. This Deed can only have application to the grant of the Permits to the extent that the land the subject thereof is situated upon the land the subject of WC99/6. It does not and cannot authorise the grant of the permits over the land the subject of WC97/71. In my opinion, it is not, on its own, an agreement to which s 35(3) of the Act applies, not being an agreement with “each of the native title parties” as provided for in s 31(1)(b). By that deed the Combined Metropolitan Working Group also consents to a determination that the Permits may be granted. The Combined Metropolitan Working Group has taken no part in the s 35 proceedings.

9. Also produced to the Tribunal are letters in identical terms sent by the Yued families representative body to each of the surviving registered Native Title Claimants for the Yued families, at the foot at which is a statement of consent to a determination to allow “the grant of permits (EP5/98-99)”.  The statement at the foot of each such letter has been completed by the registered Native Title claimant to whom it was sent.  That the writing in each such statement is that of the registered Native Title Claimant to whom the letter was addressed has been confirmed in writing by the Yued families’ representative body.  Set out hereunder is a copy of the content of the letter including the statement at the foot thereof.

   “15 August 2003

   Yued Applicant

Dear

Section 35 Consent Determination for Empire Oil - Application for Exploration Permit - Petroleum EP5/98-9

Earlier this year, the Yued Native Title Applicants signed a State Deed and a Heritage Protection Agreement for three Petroleum Exploration Permits applied for by Empire Oil (EP5/98-9).

Arnold Franks signed the Heritage Protection agreement, but due to an oversight did not sign the State Deed.  Mr Franks now refuses to sign that State Deed.  The State Deed must be signed by all the Yued Applicants before the permits can be approved.

In order to get a determination to allow the three permits to be granted despite Mr Franks’ refusal to sign, the Yued families and Empire Oil can agree to seek a Section 35 Consent determination in the Native Title Tribunal.

The Native Title Tribunal will require evidence that the rest of the Yued applicants still agree to the grant of the grant of the three Empire Oil exploration permits despite Mr Franks’ refusal to sign and that they support the Native Title Tribunal making a determination to allow the grant of permits without Mr Franks’ signature.

To show you still support the granting of the three Empire Oil exploration permits, would you please sign the sentence in bold below and return this letter to SWALSC in the stamped self-addressed envelope provided.

Yours sincerely

Wendy Treasure
            Legal Officer”

I …………………………..   of …………………………………………  still Agree to the grant of the three Empire Oil exploration permits (EP  5/98-9) despite Mr Arnold Frank’s refusal to sign and I support the Native Title Tribunal making a determination to allow the grant of permits without Mr Franks’ signature.

………………………….   Dated ……………………………………………………….…….”

1. On 22 September 2003 a Minute of Consent Determination in respect of the s 35 application signed, by the representatives of each of the State, the grantee and the Yued families, it being there referred to as the “Native Title Party”, was lodged with the Tribunal. It is 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 Native Title Party and the Grantee Party has 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 permits 5/98-9 may be done.”

1. The registered Native Title Claimants for the Yued families are hereinafter referred to as the Native Title Party.

2. On 23 October 2003 the Tribunal conducted a Hearing.  The representatives of each of the parties acknowledged the respective party’s consent to the Consent determination being made.  The Native Title Party’s representative body confirmed its consent.  The Tribunal however was not satisfied that the said death certificate of “Michael George Egan of 43 Scott Street, Koongamia” sufficiently identified the person thereby certified as deceased with Michael Egan one of the registered Native Title Claimants for the Yued families.  The Native Title Party’s representative advised that she had secured an affidavit which would sufficiently identify Michael George Egan referred to in the death certificate as Michael Egan, the registered Native Title Claimant.  An affidavit was subsequently received from the representative body, sworn on 24 October 2003 by one Kevin Barry Fitzgerald, a field officer of the South West Aboriginal Land and Sea Council Aboriginal Corporation.  Mr Fitzgerald therein testifies that he has known Michael Egan, the now deceased Yued applicant, through personal friendship and marital kinship since at least 1970, his wife being the niece of such deceased.  He confirms that the said Michael Egan and Michael George Egan of 43 Scott Street, Koongamia are one and the same person and that he has visited Michael Egan at that address.  He testifies that he knew Michael Egan as both a relation whom he saw at social and family occasions and as a Yued applicant whom he saw at native title meetings through his involvement with the Noongar Land Council and the South West Aboriginal Land and Sea Council Aboriginal Corporation.  He was informed of Michael Egan’s death by the deceased’s son Patrick.  Although his wife attended the funeral he was unable to do so.  I accept Mr Fitzgerald’s affidavit as satisfactory evidence of the death on 6 June 2002 of Michael Egan the registered Native Title Claimant on behalf of the Yued families registered as Mr Michael Egan.

3. 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, Hon CJ Sumner, 22 June 2001). The Native Title Party and the State are legally represented in this matter. Having regard to the fact that Mr Arnold Franks signed the Heritage Protection Agreement between the Native Title Party and the grantee and that all of the other surviving registered Yued Native Title Claimants signed that agreement and the proposed State Deed and have expressed their Consent to the determination by the completion of the statement on the aforementioned letters, I am satisfied that the registered Native Title claimants for the Yeud families understand and consent to the general course of action that the representative body has taken on its behalf, and in particular, to the consent determination. On the facts Mr Franks’ personal consent is not essential to the consent of the Native Title Party. It is clear on the evidence that the Native Title Party, as a group, has consented in accordance with a process of the kind referred to in s 203BC(2)(b) of the Act. I also take into account the Deed entered into by the State, the grantee and the Combined Metropolitan Working Group in respect of the land the subject of the registered Native Title Claim of that group (WC99/6). Without such agreement a determination on this application would be totally ineffective to permit the act to be done. In my opinion there is nothing in the facts of this matter which make a Consent Determination in the terms of the Minute inappropriate.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of petroleum exploration permits (EP5/98-9) to Empire Oil Company (WA) Limited may be done.

The Hon EM Franklyn QC
Deputy President
24 November 2003