Kimberley Oil Nl/Martha Borinelli and Others on behalf of the Yued People/State of Western Australia
[2005] NNTTA 79
•24 October 2005
NATIONAL NATIVE TITLE TRIBUNAL
Kimberley Oil NL/Martha Borinelli and Others on behalf of the Yued People/State of Western Australia, [2005] NNTTA 79 (24 October 2005)
Application No: WF05/11
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
Kimberley Oil NL (applicant/grantee party)
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Martha Borinelli and Others on behalf of the Yued people (WC97/71) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 24 October 2005
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit – named applicants not signed agreement – native title parties as a whole consent to the determination – determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 35, 38, 39(1)(a), 109, 203B, 203BB, 203BC
Cases:Albert Little and others on behalf of Badimia/Douglas Ernest Taylor and Paul Ernest Sumption/Western Australia, NNTT WF04/3, [2004] NNTTA 14 (4 March 2004), Daniel O’Dea
Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner
Empire Oil Company (WA) Limited/State of Western Australia/Martha Borinelli, Michael, Egan, Arnold Franks and Others on behalf of the Yued families, NNTT WF003/13, [2003] NNTTA 118 (24 November 2003), Hon E M Franklyn QC
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 20 October 2005
Counsel for the
native title party: Mr Ettienne van Tonder, Southwest Aboriginal Land & Sea
Council
Representative of
the grantee party: Mr Keith Spencer, Senior Administration Officer, Kimberley Oil NL
Representatives of
the Government Mr Rod Wahl, State Solicitor’s Office
party: Mr Bill Mason, Department of Industry & Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 15 December 2005, the Government party 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 EP 3/04-5 (the proposed permit) under the Petroleum Act 1967 (WA) to Kimberley Oil NL (the grantee party).
The area and location of the proposed permit is as follows:
EP 3/04-5 – 1108.3 square kilometres. The northwest corner is at latitude 30° 19’55.6” south and longitude 115°20’05.2” east (GDA94), that is, approximately 2.5 kilometres southeast of the intersection of Jurien Road and Brand Highway, extending southerly for approximately 65 kilometres and easterly for approximately 26 kilometres.
It is situated in the Shire of Dandaragan, in the vicinity of Badgingarra, and overlaps the Yued native title claim by 100%. This is the only native title determination application affected by the proposed permit.
The native title party in respect of these proceedings is:
Arnold Franks, Charmaine Walley, Diane Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder, Martha Borinelli and William Warrell on behalf of the Yued People (WC97/71 – registered from 22 August 1997) (‘the native title party’);
On 27 September 2005, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the petroleum exploration permit. The application asserts that an Ancillary Agreement (Heritage Protection Agreement) has been agreed to by all the applicants for native title ‘with the exception of certain named applicants who for unknown reasons have refused to execute the Ancillary Agreement and State Deed’. The grantee party requests that, in view of the agreement reached, the future act determination be made by consent.
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 Southwest Aboriginal Land and Sea Council (SWALSC) is the designated representative body under the Act for the native title parties and has represented them in these proceedings. 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).
The inquiry
On 20 October 2005 the Tribunal conducted a hearing at which the representatives of the grantee and the native title parties confirmed that agreement had been reached. They and the Government party representative also confirmed their consent to the determination in the terms of a Consent Minute executed by all parties in counterpart and lodged with the Tribunal on 19 October 2005.
At this hearing, Mr van Tonder of SWALSC advised that Arnold Franks, Jenny Mogridge, Joseph Ryder and William Warrall, named applicants on the Yued claim (or more accurately persons named as part of the applicant), had not executed either the State Deed or the ancillary Heritage Protection Agreement. Nevertheless, Mr van Tonder advised that, as a legal practitioner, he was satisfied that the native title party as a whole did consent to the doing of the act and he had been properly instructed to consent to the determination in the terms sought. Mr van Tonder further advised that with the possible exception of Mr Franks, the signatures had not been obtained because of logistical difficulties in that travel from Perth to various different places would be required and would take time. He advised of the outcomes of a meeting of the Yued Named Applicants and Region 5 Working Party Members held at Moora on 8 September 2005 (and subsequently provided a copy of the minutes) at which 11 members of the claim group were present (with six apologies). A resolution was passed agreeing to the terms of the Heritage Protection Agreement and State Deed relating to the proposed permit and instructing all named applicants to support and sign the State Deed and Heritage Protection Agreement and if necessary to consent to a determination in relation to the proposed permit in the event that one or more of the named applicants refuse to execute them. Mr van Tonder also advised that the resolution was couched in these terms to cover the possibility that Mr Franks who had previously refused to execute documents contrary to the wishes of the claim group also refused to do so in this case.
Findings
The Tribunal has before it the following evidence which supports a finding that the Yued native title party as a whole agree to the grant of the petroleum exploration permit.
A copy of a ‘Heritage Protection Agreement’ between Kimberley Oil NL, The Yued People and SWALSC covering the proposed permit signed by five of the nine named applicants, namely Charmaine Walley, Diane Mippy, Edna Ryder, Mal Ryder and Martha Borinelli.
A minute of a ‘Consent Determination under section 38 Native Title Act 1993 (Cth)’ which asserts that the Government party has complied with the requirements if s 31(1)(a) of the Act and that the Government party, native title party and grantee party have complied with the requirements of s 31(1)(b) and which contains a draft determination in the following terms to which the representatives of each party has assented:
‘The Government Party, the Native Title Party and the Grantee Party consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 3/04-5 may be done subject to the ‘Heritage Protection Agreement’ executed by the Native Title Party and the Grantee Party on 8 September 2005.’
The issues raised by the refusal of Mr Franks to execute documents giving effect to agreements reached with the Yued native title party as a whole have been considered by the Tribunal previously (Empire Oil Company (WA) Limited/State of Western Australia / Martha Borinelli, Michael, Egan, Arnold Franks and Others on behalf of the Yued families, NNTT WF03/13, [2003] NNTTA 118 (24 November 2003) Hon E M Franklyn QC and Albert Little and others on behalf of Badimia/Douglas Ernest Taylor and Paul Ernest Sumption/Western Australia, NNTT WF04/3, [2004] NNTTA 14 (4 March 2004), Daniel O’Dea). In these cases the Tribunal was satisfied, on the basis of documentary and oral evidence presented by SWALSC, that the claimants consented to the act being done despite Mr Franks’ refusal to execute all the necessary documents. In WF04/3 (at [11]) the Tribunal confirmed that the failure of Mr Arnold Franks to execute the agreement was not fatal to the application for a consent determination. The ‘native title party’ is not each person named as part of the applicant and registered native title claimant but the applicant and registered native title claimant acting collectively as representatives and agents for the claimant group and individual persons named as part of the applicant are not entitled to separate representation (Monkey Mia at [19]-[21]). If the Tribunal is satisfied that the registered native title claimants (or more accurately the persons named as part of the applicant and registered native title claimant) collectively consent, then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made.
In the present case I am also satisfied by the evidence produced that the native title party as group consent to the determination. The native title party has been represented in this matter throughout by the designated representative Aboriginal/Torres Strait Islander body under the Act (SWALSC) and solicitors engaged by them. As the designated representative body under the Act, SWALSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representatives on whether the appropriate consent has been given by the native title party. In this matter a legal representative from the SWALSC (Mr Ettienne van Tonder) was present during the hearing, has provided an explanation of the steps taken to obtain his client’s consent and confirmed his client’s consent.
As noted at [8] above, the consent determination is to be expressed in terms that the act may be done subject to the Heritage Protection Agreement which in this case I am satisfied is within power. I have examined the terms of the Agreement and do not consider it contains any conditions which are beyond the power of the Tribunal to impose (see discussion in Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner). I also note that the Heritage Protection Agreement will assist in the minimisation of any effect of the future act on native title and sites of particular significance to the native title party (s 39(1)(a)(i) and (v) of the Act).
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit EP 3/04-5 to Kimberley Oil NL, may be done may be done subject to the Heritage Protection Agreement between the Yued native title party and the grantee party dated 8 September 2005.
Hon C J Sumner
Deputy President
24 October 2005
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