Gulliver Productions Pty Ltd & Others/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal...
[2006] NNTTA 33
•13 April 2006
NATIONAL NATIVE TITLE TRIBUNAL
Gulliver Productions Pty Ltd & Others/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia, [2006] NNTTA 33 (13 April 2006)
Application No: WF05/1
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Gulliver Productions Pty Ltd, Maneroo Oil Company Limited, Indigo Oil Pty Ltd, Kjirt Exploration Services Pty Ltd (grantee party/Applicant)
- and -
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) (WC96/78) (Martu native title party)
and
Darcy Hunter & Ors on behalf of Nyangumarta People (WC98/65) (Nyangumarta native title party)
and
Karajarri Traditional Lands Association (Aboriginal Corporation) (WC00/2) (Karajarri native title party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 13 April 2006
Catchwords: Native title – future act – application for a determination in relation to petroleum exploration permit – application for permit amended to excise overlap with Martu native title party – Martu no longer a native title party – agreement and consent to determination by Nyangumarta native title party – limited contentions and evidence submitted by Karajarri native title party – Tribunal obliged to consider factors in s 39 Native Title Act – determination that the act may be done.
Legislation:Native Title Act 1993 (Cth) ss 35, 38, 39
Petroleum Act 1967 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases:Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Darcy Hunter and Others on behalf of the Nyangumarta People; Frank Sebastian, Joseph Roe & Others on behalf of the Rubibi People; John Dudu Nangkiriny & Others on behalf of the Karajarri People/Western Australia/Gulliver Productions Pty Ltd; Indigo Oil Pty Ltd; Maneroo Oil Company Limited, NNTT WF02/4, [2004] NNTTA 105 (11 November 2004) Hon E M Franklyn QC
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation/)Western Australia, NNTT WF05/1, [2005] NNTTA 88 (30 November 2005) Hon C J Sumner
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006) Hon C J Sumner
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11, [2004] NNTTA 108 (1 December 2004) Hon C J Sumner
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Hearing dates: 24 May 2005
6 December 2005
27 February 2006
Counsel for the Martu
native title party Mr Greg McIntyre SC
Solicitors for the Martu Mr Malcolm O’Dell, Ngaanyatjarra Land Council
native title party Aboriginal Corporation
Ms Jasmine Campbell, Ngaanyatjarra Land Council Aboriginal Corporation
Counsel for the Karajarri
native title party: Ms Krysti Guest, Kimberley Land Council
Representative of the
Karajarri native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitors for the Nyangumarta Mr Sukhpal Singh, Pilbara Native Title Service
native title party: Ms Jane Carter, Pilbara Native Title Service
Representative of the
grantee party: Mr Craig Marshall, Empire Oil and Gas NL
Counsel for the Mr Barry King, State Solicitor’s Office
Government party: Ms Emma Ganderton, State Solicitor’s Office
Representative of the
Government party: Ms Maryie Platt, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 6 February 2002, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the grant of petroleum exploration permit EP14/00-1 (‘the proposed permit’) under the Petroleum Act 1967 (WA) to Gulliver Productions Pty Ltd, Maneroo Oil Company Limited, Indigo Oil Pty Ltd and Kjirt Exploration Services Pty Ltd (‘the grantee party’). The proposed permit originally comprised an area of approximately 25,720 square kilometres within the Great Sandy Desert in the Shires of East Pilbara and Broome.
The native title parties in respect of these proceedings, and the extent to which they originally overlapped the area of the proposed permit, are as follows:
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) (‘the WDLAC’). Native Title Claim No. WC96/78 was registered from 26 June 1996 as the native title claim of the Martu People, who were determined by the Federal Court to hold native title on 27 September 2002. The WDLAC is the registered native title body corporate, being the prescribed body corporate (‘PBC’) on the National Native Title Register, determined by the Court on 17 July 2003 to hold the native title rights and interests in trust for the common law holders. The area of overlap with the original proposed permit area is 33.61%.
Darcy Hunter, Misha Peters, Wooda Davis, Ada Stewart, Winnie Coppin and Alma Gray on behalf of Nyangumarta People (Native Title Claim No. WC98/65 – registered from 29 September 1998) – 59.79% overlap with the original proposed permit area.
Karajarri Traditional Lands Association (Aboriginal Corporation) – a registered native title body corporate (Native Title Claim No. WC00/2 – registered from 13 June 1996 as the native title claim of the Karajarri People, and determined by the Federal Court to hold native title with a PBC on 12 February 2002 (‘Area A’) and 8 September 2004 (‘Area B’)) – 4.72% overlap with the original proposed permit area.
On 3 May 2005, being a date more than six months after the s 29 notice was given, Gulliver Productions Pty Ltd on behalf of the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that the negotiation parties had executed a State Deed (i.e. an agreement of the kind mentioned in para 31(1)(b) of the Act signed by the Government party, grantee party and each of the native title parties)) with the Nyangumarta native title party, and had reached agreement with the Karajarri native title party in relation to the portion of the proposed permit which overlaps Area B (originally 1.43% of proposed licence area), but had not been able to reach agreement with the Karajarri native title party in relation to the portion of the proposed permit overlapping Area A (originally 3.28% of proposed licence area), nor with the Martu native title party, within 32 months of the Government party commencing negotiations with respect to the doing of the act.
Good faith negotiations – jurisdiction
The Martu native title party challenged the Tribunal’s jurisdiction on the basis that neither the Government nor grantee parties had negotiated in good faith (ss 31(1)(b), 36(2)). This challenge was rejected and reasons published on 30 November 2005 (Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Darcy Hunter & Ors on behalf of Nyangumarta People/Karajarri Traditional Lands Association (Aboriginal Corporation/)Western Australia, NNTT WF05/1, [2005] NNTTA 88).
The Tribunal then set directions for the exchange of contentions and evidence for the substantive inquiry which the Tribunal decided, after hearing submissions from the parties, should be ‘on country’. Both the Government party and grantee party complied with the directions.
Excision of southern portion of EP14/00-1
On 7 March 2006 the Tribunal received correspondence from the Government party advising that it had received an application from the grantee party to amend its application in respect of the proposed permit. The correspondence continued in the following terms:
“The amendment related to the excision of 110 graticular blocks from the Grantee Party’s permit application. The 110 graticular blocks correspond to that part of the proposed permit area that is covered by a native title determination in favour of the Martu People (WAD6110/98).
The Grantee Party’s amendment application was approved under delegated authority for the Minister for Resources assisting the Minister for State Development late in the afternoon of Friday 3 March 2006, with the effect that the Third Native Title Party’s [Martu native title party] determined lands will no longer be affected by the proposed grant of PEP 14/00-1.”
A map illustrating the proposed permit as amended was provided to the Tribunal by the Government party on 9 March 2006, confirming advice that the Martu native title party were no longer affected by the proposed permit. I find that the Martu native title party is no longer a party to this s 35 determination application. Accordingly, the balance of this determination refers only to the Karajarri and Nyangumarta native title parties.
Background facts
As a consequence of negotiations between the parties including Tribunal mediation assistance pursuant to s 31(3) of the Act the following facts are established:
Each of the persons still living comprising the applicant, registered native title claimant and Nyangumarta native title party (WC98/65) have signed a State Deed agreeing to the grant of the proposed permit to the grantee party. A Medical Certificate of Cause of Death for the deceased person was provided with the State Deed in lieu of the signature of that named applicant. This Deed has also been signed by the other negotiation parties (the Government and grantee party) and was lodged with the Tribunal on 20 May 2004.
The Karajarri native title party (WC00/2) reached agreement with the grantee party in relation to the grant of that portion of the proposed permit overlapping Area B of the Karajarri determination area at a Karajarri claim group meeting held on 27 May 2004 (prior to the determination of native title in that Area). An ancillary agreement titled ‘Kimberley Land Council, Aboriginal Corporation, on behalf of the Karajarri Native Title Claim Group, Native Title and Heritage Protection Agreement’, dated 8 June 2004, has been executed by the Kimberley Land Council (‘KLC’) the native title representative body on behalf of the Karajarri native title party but a State Deed has not been executed to date. Further no agreement has been reached in respect of Area A of the Karajarri native title party’s determination.
Findings relating to the Nyangumarta native title party
At the Preliminary Conference of 24 May 2005, Ms Jane Carter, counsel for the Nyangumarta native title party, confirmed her client’s consent to a determination based on the evidence of the State Deed. I find that the Nyangumarta native title party consents to a determination that the act may be done.
The Karajarri native title party
Because each of the persons comprising the applicant, registered native title claimant and Karajarri native title party has not signed the State Deed (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 each of the native title parties)), and because no agreement has been reached with respect to Area A of the Karajarri determination area, this matter cannot be concluded by way of a s 31 agreement. The State Deed signed by the Government party, grantee party and Nyangumarta native title party, even though lodged with the Tribunal as required by s 41A(1)(a) of the Act, does not on its own comprise an agreement of the kind mentioned in para 31(1)(b) of the Act as such an agreement must be between the Government party, grantee party and each native title party. It is for this reason that the Tribunal must consider the most appropriate method of resolving this matter.
While the Tribunal has power to make a determination by consent (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361) and has the consent of the Nyangumarta native title party, a consent determination is not appropriate in relation to the Karajarri native title party. Because there is no agreement over the grant of proposed permit in Area A of the Karajarri determination area, and no indication from the KLC that Karajarri formally consent to a consent determination in relation to Area B of the determined area (despite the existence of a Heritage Protection Agreement), I am unable to proceed by way of a consent determination and instead must consider the facts of this matter in relation to the criteria set out in s 39 of the Act. It is necessary to deal with the matter on the basis that the Karajarri native title party have only provided evidence about the s 39 criteria limited to an affidavit and correspondence about their attitude to reaching agreement over Area A and Area B of the determined land. The Tribunal has proceeded in the manner outlined in other cases where the native title party has chosen to tender no or only limited evidence, viz:
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006), Hon C J Sumner (‘Griffin Coal’);
Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11, [2004] NNTTA 108 (1 December 2004) Hon C J Sumner (‘Thalanyji’); and
Darcy Hunter and Others on behalf of the Nyangumarta People; Frank Sebastian, Joseph Roe & Others on behalf of the Rubibi People; John Dudu Nangkiriny & Others on behalf of the Karajarri People/Western Australia/Gulliver Productions Pty Ltd; Indigo Oil Pty Ltd; Maneroo Oil Company Limited, NNTT WF02/4, [2004] NNTTA 105 (11 November 2004), Hon E M Franklyn QC (‘Darcy Hunter’).
Despite the lack of evidence from the Karajarri native title party the Tribunal is of the view that it is still required to consider the factors in s 39 of the Act which it ‘must take into account’ in making a determination (Griffin Coal at [7]-[10]). The Tribunal has had regard to the contentions and evidence filed by the Government and grantee parties relating to these factors.
The Inquiry
At the Preliminary Conference of 24 May 2005, Ms Krysti Guest, counsel for the Karajarri native title party, confirmed that while an agreement had been reached in respect of Area B of the Karajarri native title claim prior to the Federal Court determination of non-exclusion possession of native title, there would be no agreement in relation to Area A, in which the Federal Court has determined exclusive possession of native title. Ms Guest referred the Tribunal to the decision in Darcy Hunter handed down by Hon EM Franklyn QC, Deputy President in relation to another petroleum exploration permit which also overlapped a portion of Karajarri claimed land. In that matter a similar issue arose, and the KLC ultimately advised that its clients (the Karajarri People) would not provide contentions or evidence in relation to the inquiry, and allow the determination to proceed on the papers. Ms Guest advised that while she was not instructed to consent to the determination her clients consented to the Tribunal dealing with this matter in the same way as Darcy Hunter.
In this matter the native title party has had legal representation throughout by the solicitors employed by the KLC, a recognised native title representative body under the Act, who say they have specific instructions from their clients neither to submit contentions and evidence beyond that provided in relation to the existence of an agreement in relation to Area B, nor to consent to a determination. In these circumstances, consistently with the principles set out in Griffin Coal (at [10]), the Tribunal has fulfilled its statutory obligations under the Act by giving the native title party an opportunity to provide contentions and evidence and then proceeding to make a determination on the papers if that opportunity is not taken up. Directions were set following an adjourned Preliminary Conference of 4 August 2005 allowing each native title party the opportunity to make submissions should it wish to do so, and a further opportunity to lodge submissions was offered by email correspondence on 8 March 2006 following notification of the reduced area of the proposed permit. On this latter occasion the KLC advised that it did not wish to make any further submission and would be content for the Tribunal to make a determination on the papers.
The proposed permit and specifics relating to the Karajarri overlap area
The Government party proposes to grant petroleum exploration permit EP14/00-1 to the grantee party under the Petroleum Act 1967 (WA), the term for such a permit being six years with the right of renewal for a further five years, in accordance with s 39 of that Act.
I have previously summarised the entitlements, regulations, conditions and endorsements applicable to petroleum exploration permits in Thalanyji (at [21]-[23]). Those facts are also applicable in this matter. The grant of the proposed permit will not extinguish native title.
Material provided by the Government party with respect to the underlying land tenure establishes the following facts.
The majority area of the proposed permit overlapping Karajarri land is comprised of unallocated Crown land. This corresponds with the determined section of Karajarri land referred to as Area A
The overlap area to the west is subject to pastoral lease 3114/1154, vested in Anna Plains Cattle Co Pty Ltd. This corresponds with the determined section of Karajarri land referred to as Area B.
There are no live or pending mineral or petroleum titles in the portion of the proposed permit overlapping the Karajarri native title party.
Documents and maps provided by the Government party evidence at least nine sites listed on the Department of Indigenous Affair’s permanent Register of Aboriginal Sites and which appear to partially overlap Karajarri lands the subject of the proposed permit:
Site ID 14478 – Yalayala. Ceremonial and mythological site, closed access.
Site ID 14479 (male) and 14480 (female) – Goanna. Mythological sites, closed access.
Site ID 14481 and 14482 – Two Man Rockhole 1 and 2. Mythological sites, closed access
Site ID 14484 – Emu. Mythological site, closed access.
Site ID 14485 – Limestone. Mythological site, closed access.
Site ID 14486 – Tiger Snake. Mythological site, closed access.
Site ID 13588 – Colorado Outcrop. Painting site, open access
The grantee party has submitted a Statement of Contentions which are substantially similar to that described by Deputy President Franklyn in Darcy Hunter (at [33]). The only clear distinction I am able to make relates to the years in which ground disturbing activities would be likely to occur. In the case of the proposed permit, the grantee contends that if the permit were granted ground disturbing activities would occur in the third, forth, fifth and sixth years of the initial permit term. In all other respects I rely on the summary of submissions at paragraph [33] of Darcy Hunter.
Statutory provisions
Section 38 of the Act sets out the types of determination that can be made being a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party (s 38(2)).
Section 39 lists the criteria for making such a determination:
‘39 Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
Native title rights and interests in relation to Area A of Karajarri native title party have been determined as follows:
“(a) The right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, including:
(i) the right to live on the land;
(ii) the right to make decisions about the use and enjoyment of the land and waters;
(iii) the right to hunt, gather and fish on the land and waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;
(iv) the right to take and use the waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;
(v) 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
(vi) the right to control access to, and activities conducted by others on, the land and waters, including the right to give permission to others to enter and conduct activities on the land and waters on such conditions as the Karajarri people see fit; and
(b) the right to use and enjoy the flowing and subterranean waters, including;
(i) the right to hunt on gather and fish from the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and(ii) the right to take and use the flowing and subterranean waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.”
In relation to Area B, the Karajarri native title party holds non-exclusive native title rights and interests. The National Native Title Register lists the nature and extent of those rights as including the right of access to land and waters, the right to take flora, fauna and other traditional resources, the right to take waters, the right to engage in ritual and ceremony and the right to care for, maintain and protect from physical harm, particular sites and areas of significance.
In relation to Area B the capacity to enjoy the determined native title rights would be curtailed to the extent that the pastoralist holds co-existing rights.
However, despite the determination of native title there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’) at 166-167; WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’) at 339-341). I have before me no evidence as to past, current or potential exercise or enjoyment of native title rights and interests in the area of land the subject of the proposed permit. I am therefore unable to make a fully informed finding on how these rights and interests may be affected by the doing of the future act.
Native title will not be extinguished by the grant of the proposed permit (s 24MD(3)(a) NTA).
The grantee party has provided no detailed evidence as to the activities involved in ground disturbing operations, other than allude to “Seismic and Drilling Programmes” (para (a)(ii) Statement of Contentions), which may or may not take place dependent on the results of desktop studies in years one and two of the proposed programme. The Tribunal has previously considered the nature of petroleum exploration (see for example Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54 at 71 and Thalanyji at [32]). I adopt the findings in Thalanyji (at [32]) that any petroleum exploration activities proposed under proposed permit will cause relatively minor ground disturbance over a limited time in the context of the size of the proposed permit area and Karajarri area. In the absence of evidence from the Karajarri native title party I find that activities will have limited adverse effect, if any, on the enjoyment of the native title party’s native title rights and interests.
Section 39(1)(a)(ii) - way of life, culture and traditions
There is no evidence as to the effect of the proposed permit on this factor.
Section 39(1)(a)(iii) – development of social, cultural and economic structures
There is no evidence of the effect of the proposed permit on this factor.
As in Darcy Hunter the grantee party has contended that the effect on the development of the social, cultural and economic structures of the native title parties, if any, would be beneficial rather than adverse because, were commercial quantities of petroleum to be discovered, the grant of a Production Licence would be subject to an agreement between the grantee party and the Karajarri native title party which would provide community benefits and “compensation payments for being deprived of possession of part of the surface of the land.”
While the Tribunal has held that any positive effect of a future act can be taken into account (Waljen at 170) it is not permissible to have regard under this criterion to any effect other than that caused by the particular future act under consideration. Section 39(1) talks of ‘the effect of the act’ on the criteria in s 39(1)(a). This cannot be expanded to include any Production Licence which may follow successful exploration. The likelihood of the discovery of commercial quantities of petroleum is purely speculative at this stage. If a Production Licence eventuates it will be a separate future act which will be subject to the right to negotiate. The grantee party’s statement indicates a positive attitude towards the native title party and that due consideration will be given to an agreement with them, if production becomes a reality. While not capable of being considered under this criterion the grantee party’s attitude is a relevant factor under s 39(1)(f) which supports the determination sought.
Section 39(1)(a)(iv) - freedom of access - freedom to carry out rites/ceremonies
There is before me no evidence of any rites, ceremonies or other activities of cultural significance carried out in the land the subject of the proposed lease. The grant of the proposed permit does not in any case confer on the grantee party the right of exclusive possession to the subject area. Further, I note the grantee party’s contentions at 1(iv) that:
‘it is the intent of the Grantee Parties to conduct Heritage Protection Surveys, in conjunction with the relevant land councils and/or traditional owners, over the area of any proposed ground disturbing operations. Therefore, the freedom of the native title parties to carry out rights (sic), ceremonies or other activities of cultural significance on the lands or waters in accordance with their traditions will not be affected as operation will not be conducted in these areas.’
Section 39(1)(a)(v) - sites of particular significance
As stated previously, I have before me evidence of a number of Aboriginal sites registered for the purposes of the Aboriginal Heritage Act 1972 (WA) encroaching on the Karajarri component of the proposed permit. Sites of ‘particular’ significance are those which are of special or more then ordinary significance to the native title claimants (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35) and while there is no direct evidence that any of the sites on the Register are of this kind I can infer that each of the sites listed are likely to be of particular significance given their nature and closed access status. I also accept that the Sites Register does not provide an exhaustive list of all Aboriginal sites in the area.
The Tribunal has on numerous occasions considered the protective provisions of the Aboriginal Heritage Act 1972 (WA). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Griffin Coal on this topic (at [32]-[35]).
With respect to the registered sites, the grantee party is aware of their existence by virtue of the evidence given in these proceedings. In any event the grantee party through his contentions has indicated an intention to conduct Heritage Protection Surveys in conjunction with the relevant land council and/or traditional owners over the area of any proposed ground disturbing operations. I have no reason to believe that the grantee party will not comply with its obligations under the Aboriginal Heritage Act and take whatever action is necessary to avoid interference with sites of particular significance to the native title parties in accordance with their traditions. Based on the regulatory regime in place, the presumption of regularity and the nature of a petroleum exploration permit I find that there is unlikely to be interference with any site of significance.
Section 39(1)(b) - interests, proposals, opinions or wishes of the native title parties
Other than evidence asserting the existence of an agreement between the parties in relation to Karajarri Area B, I have before me no evidence of any interests, proposals, opinions or wishes of the Karajarri native title party in relation to the management, use or control of the area of land the subject of the proposed permit. I infer that any interests, proposals, wishes or opinions in relation to Area B would have been addressed in the terms of that agreement.
Section 39(1)(c) - economic or other significance
The Government party contends that the exploration itself will contribute to the State’s economy and that data collected during such exploration will be integrated into a geological database which, it is hoped, will ultimately cover the entire State of Western Australia. The grantee party contends that if a Production Licence were applied for and granted the State of Western Australia and all Australians would benefit in an economic sense.
The Tribunal has held that it is the economic or other significance of the future act itself which must be considered under this criterion and not its contribution to the maintenance of a viable petroleum industry overall (although this is a factor which can be taken into account under s 39(1)(e) - public interest) (Waljen at 175-176). The possibility that production of petroleum may eventuate is not relevant here. However, I can take into account that the exploration permit activity will be of other than direct economic significance in that it is to contribute to the establishment of a state-wide geological database.
Section 39(1)(e) - public interest
As with mining exploration the public interest is served by the ongoing grant of petroleum exploration titles which is necessary to maintain and develop petroleum exploration (Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 at 214-215; Waljen at 215-216). The public interest is served by the grant of the proposed tenement.
Section 39(1)(f) - any other relevant matter
The Government party contends that the existence of “substantial agreement” between the parties should be taken into account. Certainly in relation to Area B I accept that the Karajarri native title party, while not formally consenting, is not opposed to the grant of the proposed permit.
The Government identifies the effect on the natural environment as a potential issue for consideration in this matter. While the effect on the natural environment is, since the 1998 amendments to the Act, no longer a specific factor to be taken into account under s 39(1)(a) the Tribunal is entitled to consider it as a relevant factor where the effect is related to the factors in s 39(1)(a) (WMC/Evans at 339-341). While there is no evidence which falls into this category I have taken into account that operations conducted under the proposed licence will be subject to the Government party’s overall environmental management regime described previously by the Tribunal (see for example Waljen at 212-214 and Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 at 24-27) and that there is a requirement for the grantee party to submit an environmental management plan to the State prior to conducting operations relating to petroleum, as identified in the document entitled “Environmental Assessment Process for Petroleum Activities in Western Australia” (page 15) attached as Appendix A to the grantee party’s contentions and GP17 of Government party submissions.
I have referred above to the other controls placed on the exercise of rights under a petroleum exploration permit. There is no basis to suggest that the grantee party will not behave in a regular and proper manner and adhere to the directions or conditions placed on the grant. I can have regard to these controls and the environmental protection regime generally in ameliorating the effect of the future act on some of the s 39(1)(a) factors if, despite the lack of evidence presented, they do in fact exist.
Conclusion
I have considered the conduct of the inquiry in Darcy Hunter, including affidavit evidence provided by Ms Guest in that matter which also related to EP14/00-1. The approach adopted by the Karajarri native title party in that matter was the same as the present one and the evidence is very similar. For similar reasons to those given in Darcy Hunter I am satisfied that a determination that the act may be done without conditions is appropriate. I have taken into account the admittedly limited evidence on the factors in s 39 and the existence of the agreement with the grantee party in relation to Area B. No claim for ‘compensation’ (or more accurately for a condition of the determination for the payment of monies into trust on account of future compensation) has been made but the grant will not preclude a claim for compensation being made to the Federal Court at a later time. The most significant evidence related to the probable existence of sites of significance to the Karajarri native title party but I am satisfied that interference with them is unlikely because of the protective regime in place, the grantee party’s attitude and the nature of petroleum exploration activity. I have given weight to the various factors in s 39 according to the evidence before me (Waljen 165-166) and determine that the act may be done.
Determination
The determination of the Tribunal is that the act, being the grant of Petroleum Exploration Permit EP14/00-1 to Gulliver Productions Pty Ltd, Maneroo Oil Company Limited, Indigo Oil Pty Ltd, Kjirt Exploration Services Pty Ltd, may be done.
Hon C J Sumner
Deputy President
13 April 2006
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