Kevin Cosmos and Others on behalf of Yaburara and Coastal Mardudhunera; Jack Alexander and Others on behalf of Kuruma Marthudunera/Rough Range Oil Pty Ltd/State of Western Australia
[2009] NNTTA 61
•22 June 2009
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Cosmos and Others on behalf of Yaburara and Coastal Mardudhunera; Jack Alexander and Others on behalf of Kuruma Marthudunera/Rough Range Oil Pty Ltd/State of Western Australia, [2009] NNTTA 61 (22 June 2009)
Application No: WF09/9
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Kevin Cosmos and Others on behalf of Yaburara and Coastal Mardudhunera – (WC96/89) (Applicant/ Yaburara and Coastal Mardudhunera native title party)
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Jack Alexander and Others on behalf of Kuruma Marthudunera – (WC99/12) (Kuruma Marthudunera native title party)
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Rough Range Oil Pty Ltd (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 22 June 2009
Catchwords: Native title — future act — application for determination for the grant of petroleum exploration permit — named applicant not signed state deed — native title party as a whole consent to the determination — consent determination that the act may be done.
Legislation: Native Title Act1993 (Cth), ss 29, 31, 35, 38, 151
Petroleum and Geothermal Energy Resources Act 1967 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Dorothy Dimer, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner
Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, NNTT WF04/22 [2004] NNTTA 85 (15 September 2004), Hon CJ Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Representative of the
Yaburara and Coastal
Mardudhunera native
title party: Mr Paul Marsh, Barrister
Representative of the
grantee party: Mr J L Craig Marshall, Empire Oil and Gas NL
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Mines and Petroleum
Representative of the
Kuruma Marthudunera
native title party: Ms Sarah Burnside, Pilbara Native Title Service
REASONS FOR FUTURE ACT DETERMINATION
On 9 May 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act namely the grant of petroleum exploration permit 10/06-7 EP (‘the proposed lease’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Rough Range Oil Pty Ltd (‘the grantee party’).
The native title parties in respect of these proceedings are:
Kevin Cosmos, Robert Boona, Valerie Holborrow on behalf of the Yaburara and Mardudhunera People (WC96/89 – registered from 1 August 1996) (‘the Yaburara and Mardudhunera native title party’); and
Jack Alexander, Mark Lockyer, Neil Finlay, Jean Lockyer, Gloria Lockyer on behalf of the Kuruma Marthudunera People (WC99/12 – registered from 24 June 1999) (‘the Kuruma Marthudunera native title party’)
The proposed lease covers an area of some 1356.5 square kilometres and is located approximately 60 kilometres north-easterly of Onslow in the vicinity of Mardie Station in the Shires of Roebourne and Ashburton and also partially falls in State Internal Waters. The proposed lease is overlapped at 47.388 per cent by the Yaburara and Mardudhunera native title party and 72.66 per cent by the Kuruma Marthudunera native title party.
The right to negotiate under s 31 of the Act applied in respect of the proposed lease. Application to the Tribunal for mediation assistance was sought by the Government party on 8 October 2007 and the matter designated WM07/75 (Kuruma Marthudunera native title party) and WM07/76 (Yaburara and Mardudhunera native title party). On 23 March 2009 parties advised that agreement had been reached with respect to negotiations between the Yaburara and Mardudhunera native title party and grantee party and indicated a s 35 determination application will likely be sought.
With respect to WM07/75 the Kuruma Marthudunera native title party has executed a State Deed (i.e. a s 31 agreement signed by all three negotiation parties). That Deed was lodged with the Tribunal on 24 November 2008 and I have sighted a copy of it.
As a consequence the Kuruma Marthudunera native title party played no active part in these proceedings. It is not possible, however, to make a determination by consent without evidence of the view of the Kuruma Marthudunera native title party. On 28 April 2009 the Kuruma Marthudunera native title party representative, Sarah Burnside legal officer of Pilbara Native Title Service, advised the Tribunal by email that the Kuruma Marthudunera People consent to the doing of the Act. I am satisfied that the Kuruma Marthudunera native title party, by entering into an Ancillary Agreement with the grantee party and a State Deed with all three negotiation parties, is aware of the act being applied for and consent to the act being done.
On 22 April 2009, being a date more than six months after the s 29 notice was given, the Yaburara and Coastal Mardudhunera native title party made an application pursuant to s 35 of the Act for a future act determination under s 38. The native title party requested that the future act determination be made by consent on the basis that there are logistical difficulties in arranging execution of the State Deed.
Appended to the s 35 determination application is a minute of consent determination in the following terms executed by Mr Paul Marsh on behalf of the Yaburara and Coastal Mardudhunera native title party and subsequently executed in counterparts by, Mr J L Craig Marshall on behalf of the grantee party, and Mr Jeff O’Halloran, State Solicitor’s Office on behalf of the Government party:
‘CONSENT DETERMINATION UNDER SECTION 38
OF THE NATIVE TITLE ACT 1993 (CTH)
1.The Government Party has complied with the requirements of section 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 section 31(1)(b) of the Native Title Act1993.
3.The Government Party, the Native Title Party and the Grantee Party consents to a determination under section 38 of the Native Title Act1993 that the ‘act’ being the grant of Petroleum Exploration Permit 10/06-7 may be done.’
The Tribunal has power to make a determination with the consent of the parties. It will normally be appropriate for the Tribunal to make a consent determination where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of their 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 (‘Monkey Mia’).
The reasons for seeking a consent determination are set out in page 4 of the application under the heading ‘Statement that Parties have Reached Agreement’ subheading ‘Yaburara & Coastal Mardudhunera (WC96/89)’:
‘The Parties have reached agreement that the act, being the grant of Petroleum Exploration Permit Application 10/06-7, may be done. This decision was made in consequence of the “Heritage Agreement” described in particular below.
However, one of the persons (Ms Valerie Holborrow) comprising the Applicant (the Native Title Party herein), did not attend the meeting at which the other two persons comprising the Applicant and the Governing Committee of the Corporation through which the Yaburara and Mardudhunera People conduct their affairs made the decision to agree. Ms Holborrow does not generally attend those meetings. Robert Boona and Kevin Cosmos and the Governing Committee each approved proceeding by way of consent determination as the most expeditious manner of giving effect to the decision of the majority of persons comprising the Applicant.’
As a result of logistical difficulties precluding the execution of a State Deed as mentioned in s 31(1)(b) of the Act by the Yaburara and Coastal Mardudhunera native title party, the Tribunal must consider whether the matter can be resolved by way of consent determination.
The Inquiry Findings
All parties have agreed that the determination could be made on the papers. Mr Marsh, counsel for the Yaburara and Coastal Mardudhunera native title party, provided a letter dated 16 June 2009, concerning his authority to bring a consent determination application on their behalf in respect to the proposed licence. Mr Marsh outlines the decision-making process of the native title party through its corporation and declares his satisfaction that the native title party approved of the agreement reached with grantee and authorised this application. This is so, in his view, notwithstanding that one of the applicants, Ms Valarie Holborrow, did not participate in the decision-making process. Mr Marsh states that Ms Holborrow does not attend such meetings or otherwise participate in the governance of the native title party’s affairs. There is no indication Ms Holborrow has any particular concern with the content of the agreement reached with the grantee party.
The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants on State Deeds in this and other regions in Western Australia as a legitimate basis for seeking a consent determination (see for example Innawonga Bunjima Niapaili People; Eva J Connors on behalf of Eastern Guruma People/Western Australia/Fortescue Resources Pty Ltd, NNTT WF04/22 [2004] NNTTA 85 (15 September 2004), Hon CJ Sumner).
Where it is clear that the native title party or claim group, as a whole, consent to a determination, despite dissent from some named applicants, The Tribunal will make a determination by consent. (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Dorothy Dimer, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). A native title party is not each registered native title claimant on the same claim but all of them acting collectively. Accordingly the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate (Monkey Mia at 370-371 [19]-[22]). In this matter I am satisfied that, based on the material provided to the Tribunal, that the Yaburara and Coastal Mardudhunera native title party, as a whole, has agreed to the grant of the proposed lease and consent to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 10/06-7 EP to Rough Range Oil Pty Ltd, may be done.
Daniel O’Dea
Member
22 June 2009
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