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

Empire Oil Company (WA) Limited, the State of Western Australia, and various claimants on behalf of the Yued families appeared before the court in a matter concerning native title rights and the proposed grant of petroleum exploration permits. The dispute centred on lands subject to two distinct registered native title claims by different groups, with the State intending to grant the permits over these lands. An agreement was reached between the State and one group of native title claimants, allowing the grant to proceed over their lands. This agreement included a consent to have the matter determined by arbitration. However, a second group of claimants, who also held native title over some of the lands, did not consent to the grant. One of the original claimants had since passed away, but a heritage agreement concerning the lands was entered into by the remaining claimants. Despite this, one of the surviving claimants refused to sign a State Deed permitting the act, while the others agreed and supported a consent determination.

The court was tasked with determining whether the proposed grant of petroleum exploration permits over the disputed lands could proceed, given the consent of some but not all registered native title claimants. The central legal issue was whether the refusal of one claimant to consent to the State Deed could override the consent of the other claimants, and if so, whether this refusal could prevent the consent determination sought by the State and the claimants who supported the grant. The court had to consider the legal framework governing native title, particularly the provisions concerning future acts and the rights of native title claimants, as well as the effect of agreements and consents on the determination of future acts.

The court ruled that the refusal of one claimant to sign the State Deed did not prevent the consent determination from being made. The court found that the support of the other surviving claimants, who had entered into a heritage agreement and consented to the grant, was sufficient to permit the proposed act. The court emphasised that the determination of future acts under native title law requires consideration of the rights and interests of all claimants, but also recognises that the consent of a majority can be decisive if certain conditions are met. The court concluded that, in this case, the consent of the majority of claimants, along with their support for the consent determination, was enough to allow the grant of petroleum exploration permits over the lands in question. The court made a consent determination that the act may be done.