Judy Hughes & Others on behalf of the Thalanyji People Native Title Claimants/Western Australia/West Oil Nl
[2003] NNTTA 122
•12 December 2003
NATIONAL NATIVE TITLE TRIBUNAL
Judy Hughes & Others on behalf of the Thalanyji People Native Title Claimants/Western Australia/West Oil NL, [2003] NNTTA 122 (12 December 2003)
Application No: WF03/11
IN THE MATTER of the Native Title Act 1993 (Cwth)
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IN THE MATTER of an inquiry into a Future Act Determination Application
Judy Hughes & Others on behalf of the Thalanyji People (WC99/45) (Native Title party/applicant)
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The State of Western Australia (Government party)
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West Oil NL (grantee party)
FUTURE ACT DETERMINATION
Tribunal: The Hon. EM Franklyn QC, Deputy President
Place: Perth
Date: 12 December 2003
Representative for the
native title party: Mr Jerome Frewen, Desert Management
Ms Glenys Hayes, Buurabalayji Thalanyji Association
Representative for the
Government party: Ms Maryie Platt, Department of Industry and Resources
Mr Rod Wahl, Crown Solicitor’s Office
Representative for the
grantee party: Mr Steve Ingarfield, West Oil NL
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit tenement – consent determination that the 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, [2001] NNTTA 50 NNTT WF01/2, Hon CJ Sumner, 22 June 2001
Hearing date: 5 December 2003
REASONS FOR FUTURE ACT DETERMINATION
On 14 November 2001, 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 permit (EP15/00-1) (“the permit”) under the Petroleum Act 1967 (WA) to West Oil NL (“the grantee”). The permit is wholly situate of the land the subject of the native title claim WC99/45 on behalf of the Thalanyji People registered from 7 December 2000.
The registered native title claimants on behalf of Thalanyji People and the “native title party” in this inquiry are: Mr Albert Hayes, Mr Douglas Fazeldean, Mr John Ard, Ms Glenys Hayes, Ms Judy Hughes, Ms Laura Hicks, Ms Leslie Hayes and Ms Valerie Ashburton on behalf of the Thalanyji People (WC99/45) (hereafter jointly referred to as “the claimant”).
On 11 August 2003, being a date more than six months after the s 29 notice was given, Judy Hughes on behalf of the claimant made an application pursuant to s 35 of the Act for a Future Act Determination under s 38 in relation to the grant of the permit. In that application Douglas Fazeldean is described as “Douglas Fazledean (deceased)” and it is said, inter alia, that the negotiating parties have reached agreement that the Act may be done subject to conditions to protect the claimant’s cultural heritage and further that the claimant and the grantee have executed an agreement titled “Aboriginal Consent and Site Clearance Agreement Protocol”. On 6 November 2003 an amended application signed by Mr Jerome Frewen of Desert Management, representing the claimant, was filed by Mr Frewen with the Tribunal. Paras 10 and 12 of that amended application provide as follows:
“10. A statement that the parties have not been able to reach agreement about the act within 6 months of the notice being given.
The negotiation parties, being West Oil NL and Thalanyji, have reached agreement for the grant of the exploration permit, and have executed a document entitled “Aboriginal Consent and Site Clearance Agreement and Protocol” which was stamped at the WA Stamp Duty Office on 8th September 2003. The parties also signed a State Deed and submitted this to the Government Party. Both the Agreement and State Deed were signed on behalf of the Thalanyji by 7 of the 8 Registered Native Title claimants. Because of the death of an elder, the eighth Registered Native Title claimant, the late Douglas Fazeldean, the parties have been unable to execute a State Deed in accordance with s31(1)(b) of the Native Title Act to give effect to the Agreement. This is the only impediment to the acceptance of the State Deed.
An outline of the type of evidence that the applicant(s) will produce to show the effect of the act on the area of land.
The applicants do not intend to submit any evidence to show the effect of the act on the area of land as they have reached agreement with the grantee party for the Act to be done subject to conditions to protect the claimant’s cultural heritage.
On 1 September 2003 I was appointed the Member to constitute the Tribunal for the inquiry. On 27 November 2003 the amended application was accepted pursuant to s 77 of the Act.
On 28 October the claimant lodged an affidavit sworn 28 November 2003 by Jerome Frewen as “negotiator and consultant” of the claimant and, on 27 November, an affidavit said to be “sworn/affirmed” on 26 November 2003 by Judy Hughes one of the claimants.
On 4 December 2003 a Minute of Consent Determination signed on behalf of the State, the grantee and the claimant was lodged with the Tribunal by Mr Frewen who had signed the same on behalf of the claimant. Such Minute is in the following terms:
CONSENT DETERMINATION UNDER SECTION 38 OF THE
NATIVE TITLE ACT 1993 (CTH)The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
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.
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”, being the grant of Exploration Permit 15/00-1 may be done.
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/Western Australia/Albert Darby Winder and others, [2001] NNTTA 50 NNTT WF01/2, Hon C J Sumner, 22 June 2001).
The Material before the Tribunal
[8.1] The affidavit of Jerome Frewen sworn 28 November 2003:-
“1, Jerome Frewen of Perth in the state of Western Australia, Accountant, say on oath/affirm as follows:
I am the Negotiator and Consultant of the Thalanyji People Native Title Claim group.
I have worked in this capacity with the Thalanyji People for a period of three (3) years.
The Thalanyji People are not represented by the Yamatji Land and Sea Council Aboriginal Corporation (the Representative Body for the area). They receive no financial assistance from the Representative Body for the area.
The Thalanyji People met at the offices of the Buurubalyji Thalanyji in June 2002, to consider a standard heritage and exploration agreement, officiated by their Coordinator, Ms Glenys Hayes, who is also a Thalanyji person and a Registered Applicant for the Thalanyji Native Title Claim Group.
The standard heritage and exploration agreement had been developed in consultation with the lawyers for the group, Corsers, members of the group.
and myself, and was drafted for the purpose of supplying to companies and developers to meet the requirements of objections by the group to the application of expedited procedure matters, and also to meet the requirements of the Aboriginal Heritage Act 1972-80.
The agreement had been explained to Ms Glenys Hayes, the lawyer for the group at a meeting with took place in Perth between myself and Glenys in May 2002.
Glenys explained the agreements to members of the group in June 2002. The agreement was accepted by the registered applicants for use for all expedited procedure matters, and is still used for this purpose today.
The agreement has been accepted by a number of companies for the purpose of withdrawing objections to the expedited procedure, including Barrick Gold of Australia, and the agreement governed the conduct of a heritage survey for that company in September 2003.
This authorized agreement was supplied to West Oil on 19th November 2002, by myself, on behalf of the group.
The application by West Oil is for an exploration permit under the Petroleum Act. Changes were made to the agreement to reflect the different Act it was to operate under, and minor changes to the terms were suggested by West Oil.
I explained the amendments to the agreement to Glenys Hayes, Coordinator for the group. Glenys met with the registered applicants and explained the nature of the changes to them. This occurred between approximately February 2003 and May 2003. She met with the applicants where they lived in some cases (both in Onslow and in Carnarvon), and in other cases at the office.
The difference between the original agreement authorized by the group and the changes were minor. For example, the requirement for heritage surveys, and the methodology to be used, are the same in each agreement. What differed were references to the different Acts (Mining vs Petroleum), Glenys then advised me of the acceptance of the new agreement in the beginning of September 2003. I advised the company of acceptance of the agreement by the Thalanyji at the same time, and the agreement was then
14.
printed and bound in triplicate, and these, together with the State Deed, were sent to Onslow, where all documents were executed by all of the Registered Applicants on 8 September 2003.
Efforts have been made since Mr Fazeldeans death in March 2001 to obtain a copy of the Death Certificate for Mr Douglas Fazeldean, by relatives of the deceased, and by Glenys Hayes. These efforts have to date proved unsuccessful.
The date of death has been confirmed by Judy Hughes in her affidavit.
A funeral was held for Mr Fazeldean, and attended by a large number of people in Onslow, as evidenced by Judy Hughes in her affidavit.
This is an account of the authorization process leading to the Thalanyji People and West Oil reaching agreement in relation to the grant of the exploration permit applied for by West Oil.
Sworn/affirmed by the deponent )
JEROME FREWEN )
at WEST PERTH in the State of ) (Signature)
Western Australia this 28th Day of )
November 2003 )
Before me:
________________________________ (Signature JP)
Justice of the Peach or Commissioner of Affidavits
As is clear from that affidavit, most of the statement of events and facts referred to therein, on their face, are hearsay. I refer in particular to those statements made in para 8, those of the meetings between Ms Hayes and the other registered claimants referred to in para 12, that the new agreement referred to in paras 13/14 was in fact accepted by the claimants as was reported to him by Ms Hayes and that it, together with the State deed, was signed by all of the registered claimants on 8 September 2003. Also clearly hearsay are the statements in paras 15 and 17 of the affidavit. Further in para 7 the affidavit wrongly describes Ms Glenys Hayes “the lawyer for the group”. The Tribunal’s concern as to the adequacy of affidavit for the purpose of the proposed consent determination were conveyed to Mr Frewen who, together with the grantee and the State was advised that the Tribunal would conduct a preliminary hearing into the application on 5 December 2003. The Tribunal was subsequently advised by Mr Frewen that Ms Glenys Hayes would appear with him at the hearing to provide any further information required.
[8.2] The affidavit of Judy Hughes sworn 27 November 2003 is set out below:
“I, Judy Hughes of Onslow in the state of Western Australia, Pensioner, say on oath/affirm as follows:
1. I am a Registered Applicant of the Thalanyji People Native Title Claim group, and a member of the Buurabalayji Thalanyji Association incorporated, the organization established to represent the Thalanyji People.
2. The Thalanyji People live in and around Onslow WA
3. Douglas Fazeldean was an Elder and a Registered Native Title claimant on the Thalanyji Native title claim. He was known to me for most of my adult life, spanning some 50 years.
4. Douglas Fazeldean passed away in Onslow Hospital on the 7th day of March 2001. I know this because my family and the community were told at the time and because his funeral was held in Onslow some three weeks later. I attended his funeral, which was also attended by at least 100 other people. Because of his seniority in the group, the funeral was attended by people from all over the Pilbara, and this is a mark of respect shown to Elders such as Douglas.
5. As a result, I confirm that Douglas Fazeldean is now deceased, and in consequence the State Deed which required his signature as a Registered Native Title claimant was therefore unable to be completed with his signature.
Sworn/affirmed by the deponent )
JUDY HUGHES )
At ONSLOW in the State of ) ____X______________________
Western Australia ) JUDY HUGHES - HER MARK (witness Initial)
This 26th day of November 2003 )
Before me:
_Ludovija Cornelia Way
Justice of the Peace
This affidavit was of concern as, Ms Hughes’ signature being represented by a “X”, there is nothing in it or endorsed on it to establish that Ms Hughes could read or that the contents of the affidavit had been explained to her and that she confirmed its truth.
The Minute of Consent signed by Mr Frewen on behalf of the claimants was not supported by any evidence of Mr Frewen’s authority to sign the same.
The Hearing
At the hearing on 5 December 2003 Mr Frewen attended in person, with Ms Hayes by telephone conference hookup, for the claimant. The grantee was represented by Mr Steve Ingarfield of West Oil NL and the State by Mr Trevor Crewel a solicitor of the Crown Solicitors Office and Mr Rod Wahl an officer of the same Office.
The concerns of the Tribunal as to the respective affidavits of Mr Frewen and Ms Hughes and as to Mr Frewen’s authority to sign the Minute of Consent were raised with Ms Hayes. The terms of the Minute were read out to her. Mr Frewen advised the Tribunal that he had authority to sign the Minute. Ms Hayes confirmed that to be so and that the authority was given by the claimants in accordance with the traditional process of giving such a consent. Ms Hayes further stated that the claimant consented to the .consent determination the effect of which had been explained to each of them by her that they understood its effect. She confirmed that the claimants were aware that the consent determination would impose no conditions on the doing of the act. Ms Hayes was then referred to the statement in para 10 of the amended s 35 application that the claimants, other than Mr Fazeldean, had executed the document entitled “Aboriginal Consent of Site Clearance Agreement and Protocol” on 8 September 2003 and a State deed. Ms Hayes advised that she had personally attended on each of the applicants and explained the contents of the agreement and deed to them, that each understood the effect of the same and either signed the same or made his or her mark by way of signature after such explanation. Ms Hayes advised that Mr Frewen had erred in his affidavit in describing her as “the lawyer for the group” and that she was not a lawyer. She was referred to the affidavit of Judy Hughes and asked if Ms Hughes could read or write English. She replied that Ms Hughes could not. She further advised that she had been present when Ms Hughes had made her affidavit and that its contents had been read to Ms Hughes and explained to her by both herself and the Justice of the Peace who witnessed the making of the affidavit before Ms Hughes made her mark by way of signature. She undertook to provide a letter confirming that advice, which letter was received by the Tribunal from her by email later the same day.
The grantee’s representative confirmed that the grantee had executed the document referred to in para 10 of the amended statement claim.
The Tribunal enquired of the State representative why no Death Certificate had issued in respect of Mr Hazeldean’s death despite the fact that the death was said to have occurred in the Onslow hospital. Mr Rod Wahl advised that the difficulty was that the Registrar of Deaths could not issue a Certificate of Deaths until all of the information required for the issue of such a certificate was received even though the death in question be not an issue and that the required information in some cases may not be received from the undertaker or there might be variances as to the date of death. He could not say why, in the present case, the certificate had not issued. He agreed to take up with the Registrar the possibility of the Registrar as a matter of concern confirming in some way the fact of a particular death when that fact is proven even if no certificate of death in the prescribed or usual form could issue.
There is on the Tribunal’s file a document entitled “Deed for Grant of Petroleum Title” bearing the Tribunal’s date that it was received on 26 August 03. It bears the signature of a person said therein to be authorized to sign on behalf of the relevant Minister of the State, the signature being dated 26 August 2003. It is executed by the grantee, the date of execution being shown as 18 December 2002 and is signed by each member of the claimant with the exception of Douglas Fazeldean, the dates of the respective signings being variously 2 February 2003, 3 February 2003 and 28 March 2003. There is no suggestion in the document that Douglas Fazeldean is deceased. It is expressed to be in respect of a petroleum title with application number 15 2000 2001 which, I understand, is the same application as that described in the s 29 Notice as 15/00-1. There is no letter or other information to show how or on what basis the document was received by the Tribunal and its return was subsequently requested by the State with advice that it had been sent to the Tribunal in error. A document speaks from the date of its execution. At that time, as far as the evidence of this enquiry discloses, there would appear to have been no acceptable evidence of the death of Mr Fazeldean and, he being one of the registered native title claimants and not having signed the deed, the agreement of all members of the claimant group was not established. It seems clear that although the document was signed by a person on behalf of the relevant Minister, in the State’s view it was not an agreement within the meaning of s 31(1)(b) of the Act and was not lodged with the Tribunal as such. It is significant that none of the parties in this enquiry rely on that purported deed, it is not mentioned in the original or amended s 35 application and was not mentioned by any party at the hearing. I accept that it is not an agreement of the kind referred to in s 35(3) of the Act and that I am at liberty to make the determination sought in this matter.
Conclusion
I am satisfied on the material before me that Douglas Hazeldean died on or about 7 March 2001 in the Onslow hospital in Western Australia. I am also satisfied that the surviving members of the claimant understood and consented to the general course of action undertaken by their representative in developing the Aboriginal Consent and Site Clearance Agreement and Protocol referred to in para 10 of the amended s 35 application and entered into the agreement with the grantee there mentioned, understanding and consenting to its terms. I am satisfied further that they each consent to and understand the meaning and effect of the proposed consent determination. I take into account also that, as is set out in para 11 of the amended application, the grant of the permit will not extinguish native title and that any impact on sites of significance will be minimized by the terms of the said agreement.
Determination
The determination of the Tribunal is that the Act, being the grant of petroleum or exploration permit EP15/00-1 to West Oil NL can be done.
The Hon EM Franklyn, QC
Deputy President
12December 2003
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