Martha Borinelli and others on behalf of the Yued Families/ Empire Oil Company (WA) Limited/Western Australia - [2004] NNTTA 18

NATIONAL NATIVE TITLE TRIBUNAL

Martha Borinelli and others on behalf of the Yued Families/ Empire Oil Company (WA) Limited/Western Australia, [2004] NNTTA 18 (16 March 2004)

Application No: WF04/5

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

Martha Borinelli and others on behalf of the Yued Families (WC97/71) (native title party)

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Combined Metropolitan Working Group (WC99/6) (native title party)

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Empire Oil Company (WA) Limited (applicant/grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: Dan O’Dea, Tribunal Member

Place: Perth
Date: 16 March 2004

Catchwords: Native title – future act – application for determination for the grant of petroleum exploration licence – consent determination that the act may be done – consent determination that an act may be done subject to a condition.

Legislation: Native Title Act 1993 (Cth), ss 35, 38

Cases:Evans and Anor on behalf of the Koara People v State of Western Australia and Ors (1997) 77 FCR 193
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) 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 [2003] NNTTA 118 (24 November 2003)
Hon EM Franklyn QC
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.

Hearing Date: 16 March 2004

Representative of the
native title party: South West Aboriginal Land and Sea Council

Counsel of the
native title party:             Mr Len Luxford, South West Aboriginal Land and Sea
  Council
Representative of the

grantee party: Mr Craig Marshall, Empire Oil Company (WA) Ltd

Representative of the
Government party:        Mr Rod Wahl, Crown Solicitor’s Office (counsel)
  Ms Maryie Platt, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

On 12 February 2003, 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 EP12/00-1 under the Petroleum Act 1967 (‘the exploration permit’) to Empire Oil Company (WA) Limited (‘the Grantee party’).
The Native Title parties in respect of these proceedings are:
· Martha Borinelli and others on behalf of the Yued Families (WC97/71)
· Albert Corunna and others on behalf of the Combined Metropolitan Working Group (WC99/6)
The registered native title claimants on behalf of the Yued families are:
Mr Arnold Franks, Mr Joseph Ryder, Mr Mal Ryder, Mr Michael Egan,
Mr William Warrell, Ms Charmaine Walley, Ms Diane Mippy, Ms Edna Ryder,
Ms Jenny Mogridge, Ms Martha Borinelli.
The registered native title claimants on behalf of the Combined Metropolitan Working Group are:
Mr Albert Corunna, Mr Gregory Garlett, MR Kelvin Garlett, Mr Richard Wilkes, Mr Robert Bropho and Mr William Warrell
On 23 February 2004, being a date more than six months after the notification day, specified in accordance with s 29(4), in the s 29 notice, Empire Oil Company (WA) Limited made an application to the National Native Title Tribunal (‘the Tribunal’) pursuant to s 35 of the Act for a future act determination under s 38 in relation to petroleum exploration permit EP12/00-1. (‘the s 35 application’) The South West Aboriginal Land and Sea Council (SWALSC) is the recognised representative Aboriginal and Torres Strait Islander body under the Act for the area of the Yued families’ native title claim and the Combined Metropolitan Working Group claim. The parties consent to a determination that the act may be done subject to the terms of an Ancillary Agreement titled “Heritage Protection Agreement”.
The Combined Metropolitan Working Group are registered native title claimants in the area subject to the proposed exploration permit. The s 35 application attaches a copy of a State Deed between the Grantee party and the Government party and the Combined Metropolitan Working Group providing for the grant of the petroleum title signed by each of the registered native title claimants. It has been lodged with the Tribunal pursuant to s 41A(1)(a) of the Act.
The lodgement of the Combined Metropolitan State Deed does not of itself constitute an agreement of itself for the purposes of s 31(1)(b) of the Act as such an agreement must be between the Grantee party, the Government party and each Native Title party. Therefore the Tribunal must be satisfied that the Combined Metropolitan Working Group would agree to the consent determination application. Having signed a State Deed and being represented by the same practitioner as the Yued, I am satisfied that the Combined Metropolitan Working Group would not oppose the grant of the petroleum exploration permit.
Attached to the s 35 application is a death certificate certifying the death of one Michael George Egan of 43 Scott Street, Koongamia, Western Australia issued by the Registrar of Births Deaths and Marriages on 9 July 2002. This document was lodged with the Tribunal for the purposes of confirming the death on 6 June 2002 of the registered native title claimant, Mr Michael Egan. The Tribunal has largely dealt with this issue in Empire Oil Company (WA) Limited/State of Western Australia/ Martha Borinelli, Michael Egan, Arnold Franks and Others on behalf of the Yued families [2003] NNTTA 118 (24 November 2003) per The Hon EM Franklyn QC, in which the Tribunal was satisfied with the evidence, in the form of an affidavit, of Kevin Barry Fitzgerald, that Michael Egan had died on 6 June 2002.
The s 35 application attaches a copy of a document entitled “State Deed” (‘the proposed deed’) executed by the Grantee party and the surviving registered native title claimants for the Yued families, with the exception of Mr Arnold Franks, providing that the Act may be done.
The Grantee party notes in paragraph 10 of the s 35 application that Mr Franks’ reasons for refusing to execute the proposed deed and agreement ‘are unclear’.
The Tribunal has been provided with signed statements, in identical terms, from each of the surviving registered native title claimants for the Yued families, with the exception of Arnold Franks. Each affidavit contains a statement of consent to a determination to allow “for the grant of Exploration Permit EP12/00-1”. Set out hereunder is a copy of the signed statements by each registered native title claimant:
‘I [name and address of registered native title claimant], being a Named Applicant for the Yued Native Title claim (WC97/71) agree to the grant of Exploration Permit EP12/00-1 to Empire Oil despite Mr Arnold Franks’ refusal to sign a Heritage Protection Agreement or State Deed for purposes of the grant of EP12/00-1 and I support Empire Oil Company (WA) Limited in its Section 35 Consent Determination application to the National Native Title Tribunal for the making of a determination to allow for the grant of Exploration Permit EP12/00-1.’
Attached to the s 35 application is a minute signed by the representatives of the Government party, the Native Title party and the Grantee party in the following terms:
‘CONSENT DETERMINATION UNDER SECTION 38 OF THE NATIVE TITLE ACT 1993 (CTH)
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
2. The Government Party, the Native Title Party and the Grantee Party has (sic) complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3. The Government Party, the Native Title Party and the Grantee Party consents [sic] to a determination under s.38 of the Native Title Act 1993 that the “act” being the grant of petroleum exploration permit 12/00-1 may be done, subject to the terms of the ‘Heritage Protection Agreement’, signed on 28 January 2004 by the Grantee Party and Mr Joseph Ryder, Mr Mal Ryder, Mr William Warrell, Ms Charmaine Walley, Ms Diane Mippy, Ms Edna Ryder, Ms Jenny Mogridge and Ms Martha Borinelli on behalf of the Native Title Party.’
Also appended to the s 35 determination application is a fully executed copy of the document entitled “Deed for Grant of Petroleum Title” which comprises a State Deed executed by all named native title claimants in the Combined Metropolitan Working Group native title claim (WC99/6), the Managing Director of Empire Oil Company (WA) Ltd, and a representative for the State of Western Australia.
Prior to the hearing, a copy of the Heritage Protection Agreement (‘the agreement’) was provided to the Tribunal by the SWALSC. It is signed by the Grantee party and by all of the surviving Yued registered native title claimants, with the exception of Mr Arnold Franks. This document was returned to the SWALSC after I perused it.
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 has heard the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 (22 June 2001) Hon C J Sumner, para 22). The Native Title party and the Government party are legally represented in this matter. Having regard to the fact that, with the exception of Mr Arnold Franks, all of the other surviving registered native title claimants signed the agreement and the proposed deed and have expressed their consent to the determination in their signed statements, I am satisfied that they collectively understand and consent to the doing of the Act and to the consent determination. The failure of Mr Arnold Franks to execute neither the agreement nor the proposed deed is not fatal to the application for a consent determination. The Tribunal has determined that the ‘Native Title party’ is not each registered native title claimant, but the registered native title claimants acting collectively as representatives and agents for the claimant groups and individual registered native title claimants are not entitled to separate representation (see Monkey Mia, para 19-21). Consequently, if the Tribunal is satisfied the registered native title claimants, acting collectively, consent then, unless the Tribunal has some cogent reason to consider it inappropriate to do so, the determination should be made. In this case there has been no indication of any credible reason why Mr Franks would not agree to consent. In the circumstances there is no reason why the determination should not be made, despite the failure of Mr Franks to sign.
The proposed consent determination is sought to be expressed in terms that the act may be done subject to the terms of the agreement. I refer to the decision 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) by the Hon C J Sumner. In that decision the Hon C J Sumner made comments at paragraph [6] that whilst the Tribunal has a broad power to impose conditions there are some limitations (see s 38(2) of the Act and discussion in Evans v Western Australia (1997) 77 FCR 193 at 213-214). For instance, the Tribunal must not determine a condition that has the effect that the native title parties are to be entitled to payments worked out by reference to the amount of profits made, any income derived or any things produced by any Grantee party as a result of doing anything in relation to the land or waters concerned after the act is done (s 38(2) of the Act). In that matter the Hon C J Sumner made a determination subject to the agreement because he had read the agreement and it did not contain terms which the Tribunal does not have power to impose. Similarly in the present matter I have read the agreement and it does not contain terms which the Tribunal does not have power to impose. In these circumstances I am prepared to make the determination subject to the terms of the agreement.
I note as asserted by the Native Title party in paragraph 11 of the s 35 application that any effect of the future act on native title (s 39(1)(a)(i) of the Act) will be minimised by the Grantee party abiding by the terms of the agreement.

Determination

By consent, the determination of the Tribunal is that the act, being the grant of petroleum exploration permit EP12/00-1 to Empire Oil Company (WA) Limited, may be done subject to the ‘Heritage Protection Agreement’ executed by the Native Title party and the Grantee party on 28 January 2004.

Dan O’Dea
Member
16 March 2004