Martha Borinelli & Ors (Yued People); Raymond Dann & Ors (Amangu People)/ Western Australia/Empire Oil Company (WA) Limited - [2007] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

Martha Borinelli & Ors (Yued People); Raymond Dann & Ors (Amangu People)/ Western Australia/Empire Oil Company (WA) Limited [2007] NNTTA 9 (23 January 2007)

Application No: WF06/21

IN THE MATTER of the Native Title Act 1993 (Cth)

-and –

IN THE MATTER of an Inquiry into a Future Act Determination Application

Martha Borinelli, Arnold Franks and others on behalf of the Yued People (first native title party)

- and -

Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rod Little, Clarrie Cameron, Rob Ronan, Betty Forsyth, Donna Ronan and Colin Whitby on behalf of the Amangu People (second native title party)

-and –

State of Western Australia (government party)

-and –

Empire Oil Company (WA) Limited (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  John Sosso
Place:  Brisbane
Date:  23 January 2007

Hearing dates: 6 June 2006, 15 June 2006, 4 August 2006, 1 September 2006, 29 September 2006, 8 December 2006.

Representatives:

First native title party:        Mr Ettienne van Tonder, South West Aboriginal Land & Sea   Council
Second native title party:     Ms Leigh Simpkin, Yamatji Land and Sea Council
  Mr Matthew O’Sullivan, Yamatji Land and Sea Council
Government party:              Ms Maryie Platt, Department of Industry and Resources
  Mr Domhnall McCloskey, State Solicitors Office
Grantee party:  Mr Craig Marshall, Empire Oil Company (WA) Limited

Catchwords: Native title – future act – petroleum exploration permit – future act determination application – first native title party consents to determination – reserve land – determination that the act may be done.

Legislation:Aboriginal Affairs Planning Authority Act 1972 (WA) ss 23, 26, 37
Native Title Act 1993 (Cth) ss 29, 35, 36, 38, 39, 47A, 75, 77, 203B, 203BC
Petroleum Act 1967 (WA) ss 15, 15A, 27, 31, 38, 39, 91B

Cases:Albert Little & Ors on behalf of the Badimia People/Western Australia/ Seaprince Holdings Pty Ltd [2003] NNTTA 108 (24 October 2003)
Alexander Brown & Ors on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia [2004] NNTTA 1 (16 January 2004)
Daniel v Western Australia [2003] FCA 666
Empire Oil Company (Limited)/Western Australia/Martha Borinelli & Ors on behalf of the Yued families [2003] NNTTA 118 (24 November 2003)
Enmic Pty Ltd v Borinelli (2006) 199 FLR 38
Foster v Copper Strike (2006) 200 FLR 182
Hayes v Northern Territory (1999) 97 FCR 32
Kimberley Oil NL/Martha Borinelli & Ors on behalf of the Yued People/ Western Australia [2005] NNTTA 79 (24 October 2005)
Martha Borinelli & Ors on behalf of the Yued Families/Amity Oil Ltd/ Western Australia [2004] NNTTA 11 (3 March 2004)
Martha Borinelli & Ors on behalf of the Yued Families/Empire Oil Company (WA) Ltd/Western Australia [2004] NNTTA 18 (16 March 2004)
Martha Borinelli & Ors on behalf of the Yued Families/Gulliver Productions Pty Ltd/Western Australia [2004] NNTTA 19 (17 March 2004)
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Neowarra v Western Australia [2003] FCA 1402
Raymond Dann & Ors/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 126 (25 August 2006)
Raymond Dann & Ors/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 153 (24 November 2006)
Rubibi Community v Western Australia (2001) 112 FCR 409
Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536
Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd)/Martha Borinelli & Ors on behalf of the Yued People/Western Australia [2006] NNTTA 144 (26 October 2006)

REASONS FOR DECISION THAT THE FUTURE ACT MAY BE DONE

Introduction

On 15 December 2004 the State of Western Australia (“the government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permit 04/04-5 (“the proposed tenement”) under section 31 of the Petroleum Act 1967 (WA) to Empire Oil Company (WA) Limited (“the grantee party”).
The notice stated that the Exploration Permit would authorise the grantee to explore for petroleum, and to carry on such operations and execute such works as would be necessary for that purpose, for a term of six (6) years with the possibility of renewal for a further term of five (5) years.
The proposed tenement, comprising approximately 965.9 square kilometres, lies within the boundaries of the Yued Native Title Claim Group native title determination application (WC97/71) (“the first native title party’) and the Amangu People native title determination application (WC04/2) (“the second native title party”).
On 8 May 2006 (which was more than six months after the notification day) the grantee party made an application pursuant to sections 35 and 75 for a future act determination under section 38. On 17 May 2006 I was appointed the presiding Member to constitute the Tribunal for the purposes of conducting the inquiry into the future act determination application. On 22 May I accepted, pursuant to section 77, the future act determination application.
The first native title party requested that the future act determination be made by consent. It did not challenge the jurisdiction of the Tribunal to make such a determination.
The second native title party, however, challenged the jurisdiction of the Tribunal to make a future act determination under section 38. The first challenge concerned alleged deficiencies in the public notification of the future act by the government party. That challenge was dismissed on 25 August 2006, see Raymond Dann & Ors/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 126. The second native title party subsequently contended that the grantee party had not negotiated in good faith, therefore depriving the Tribunal of its capacity to make a future act determination – see subsection 36(2). This challenge was dismissed on 24 November 2006, - Raymond Dann & Ors/Western Australia/Empire Oil Company (WA) Limited [2006] NNTTA 153.

The first native title party

Agreement in principle was reached between the grantee party and the first native title party. This was confirmed by the representatives of the government, grantee and first native title parties at a preliminary conference which was convened on 6 June 2006. Nonetheless despite the reaching of an “in principle” accord, not all of the persons who collectively comprise the applicant were able or willing to sign the necessary documentation. The nature of the problem confronting the negotiation parties is summarised in the native title determination application (Form 5) lodged by the grantee party in the following terms:
“The grantee party and the Yued (WC97/71) have executed an Ancillary Heritage Protection Agreement and State Deed for application EP4/04-5. Two of the named Applicants (Arnold Franks and Joseph Ryder) have refused to execute the Deed for the Grant of Petroleum Title (State Deed) therefore the parties wish to seek a determination by consent from the National Native Title Tribunal.”

The Tribunal was provided with a proposed minute of a consent determination in the following terms:
“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 have complied with the requirements of section 31(1)(b) of the Native Title Act 1993.
3. The Government Party, the Native Title Party and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 4/04-5 may be done subject to the terms of the Heritage Protection Agreement, dated 8 May 2006 and executed by the South West Aboriginal Land and Sea Council, the Grantee Party and 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.”

The minute was executed in counterparts by Mr Simon Blackshield, Principal Legal Officer of the South West Aboriginal Land and Sea Council on behalf of the first native title party and Mr Craig Marshall on behalf of the grantee party, and Mr Domhnall McCloskey, Assistant State Solicitor, on behalf of the government party.

When any of the negotiation parties makes a future act determination application, the Tribunal is required to make a determination pursuant to section 38, taking into account the criteria outlined in section 39. When the application is contested the Tribunal will carry out a full and detailed inquiry. However, when there are no issues in contention and each of the negotiation parties agrees on the type of determination that the Tribunal should make, the Tribunal will, where appropriate, undertake an abbreviated inquiry. The legal principles underpinning inquiries of this type have been fully set out and explained in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 and more recently in Foster v Copper Strike Ltd (2006) 200 FLR 182. I adopt, for the purposes of this inquiry, the legal principles enunciated in those determinations.
The normal situation presented to the Tribunal when the parties have reached an “in principle” accord but a future act determination application has been made, is that one or more of the persons who collectively comprise the applicant of the relevant native title party have either refused to execute the necessary documentation, are medically unable to do so or cannot be located. In these circumstances a “stalemate” has resulted, and even though there is no discord amongst the negotiation parties, a section 31(1)(b) agreement cannot be executed. To overcome this impasse the negotiation parties consent to the Tribunal making a section 38 determination. The Tribunal has determined that it is prepared to make such determinations provided certain matters can be satisfied. In particular the Tribunal needs to be satisfied that the “in principle” agreement has the support of the broader native title claim group, is appropriate and there are no policy or legal reasons which would require the Tribunal to conduct a full inquiry.
The persons who collectively comprise the applicant for the first native title party are:
(a)        Arnold Franks;  (b)       Charmaine Walley;
(c)Diane Mippy;  (d)      Edna Ryder;
(e)       Jenny Mogridge;  (f)       Joseph Ryder;
(g)       Mal Ryder;  (h)       Martha Borinelli; and
(i)William Warrell.

The first native title party has had a long history of problems which has prevented it from being able to execute contractual material. The Tribunal has made a number of consent determinations to facilitate “in principle” agreements reached by the first native title party with a number of mining and exploration companies. The following is an incomplete list of consent determinations made by various Tribunal Members concerning the first native title party over the last four years:
(a)Empire Oil Company (Limited)/Western Australia/Martha Borinelli & Ors on behalf of the Yued families [2003] NNTTA 118 (24 November 2003);
(b)Martha Borinelli & Ors on behalf of the Yued Families/Amity Oil Ltd/Western Australia [2004] NNTTA 11 (3 March 2004);
(c)Martha Borinelli & Ors on behalf of the Yued Families/Empire Oil Company (WA) Ltd/Western Australia [2004] NNTTA 18 (16 March 2004);
(d)Martha Borinelli & Ors on behalf of the Yued Families/Gulliver Productions Pty Ltd/Western Australia [2004] NNTTA 19 (17 March 2004);
(e)Kimberley Oil NL/Martha Borinelli & Ors on behalf of the Yued People/Western Australia [2005] NNTTA 79 (24 October 2005);
(f)Enmic Pty Ltd/Martha Borinelli & Ors on behalf of the Yued People/Western Australia (2006) 199 FLR 38/[2006] NNTTA 29 (31 March 2006); and
(g)Yalgoo Minerals Pty Ltd and Tronox Western Australia Pty Ltd (formerly KMCC Western Australia Pty Ltd)/Martha Borinelli & Ors on behalf of the Yued People/Western Australia [2006] NNTTA 144 (26 October 2006).
Initially problems arose when one of the persons comprising the applicant, Mr Michael George Egan, passed away. Having been presented with both a death certificate and appropriate affidavit material, the Tribunal was prepared to make consent determinations to overcome any difficulties that arose – see, for example, Empire Oil Company (WA) Limited/Western Australia/Martha Borinelli & Ors on behalf of the Yued families [2003] NNTTA 118 at [5].
A potentially more serious issue was the refusal by Mr Arnold Franks to execute any “in principle” agreements reached by the claim group. Initially Mr Franks’ refusal to execute contractual documentation was unclear, but the Tribunal was still prepared, on the basis of the material before it, to make consent determinations – see Empire Oil Company (WA) Limited/Western Australia/Martha Borinelli & Ors on behalf of the Yued families [2003] NNTTA 118 at [7] and Martha Borinelli & Ors on behalf of the Yued Families/Amity Oil Ltd/Western Australia [2004] NNTTA 11 at [11].
At the preliminary conference Mr van Tonder, on behalf of the first native title party, gave a very full and useful explanation of the reason why Mr Franks has consistently refused to execute “in principle” agreements reached by the claim group. He said that Mr Franks was connected with a native title determination application located to the north of the Yued application and
“… he says that he is not to be a part of the Yued claim group as such any more and for that matter he chose not to be part of the Yued claim group. Now this means that ultimately a section 66B application will be brought for the removal of Mr Franks; he’s well aware of it and he actually signed an affidavit for SWALSC and for the Yued claim group to the effect that he may be removed in the future. So yes, I think historically it’s just a case that Mr Franks does not feel or see himself to be part of the Yued claim group any more although many years ago that might have been the case.”
The material before the Tribunal in this matter, as in previous inquiries, clearly demonstrates that Mr Franks has a standing policy of not executing documents negotiated by the first native title party. His refusal is not motivated by any concern about the legitimacy or commercial worth of the agreements, nor is his refusal based on any internal division with the claim group. Further, there is no material that he has any cultural concerns with the proposed petroleum exploration. As explained by Mr van Tonder, the refusal of Mr Franks is based squarely on his desire not to be involved in the decision making of the first native title party due to his affiliation with another claim group. Looked at from this perspective, Mr Franks blanket refusal to execute documentation is based on a principled decision and should not be viewed as any indication that the “in principle” agreements struck by the first native title party are in any way “tainted”.
In addition to Mr Franks, Mr Joseph Ryder has also failed to execute the State Deed. The grantee party stated that Mr Ryder had “refused” to execute the State Deed, but this was not the situation according to Mr van Tonder who informed the Tribunal at the 6 June 2006 conference that there had never been a problem with Mr Ryder in executing documents. The issue confronting the first native title party was not that Mr Ryder was refusing to execute the State Deed, rather that he had not been contactable. Mr van Tonder said: “I just haven’t been able to get in contact with him. The last I’ve heard is that he finds himself up somewhere in the Geraldton area, but I cannot confirm that … he’s not an unwilling applicant and he certainly would execute if we did get hold of him as we have done in the past.”
A similar situation confronted the Tribunal in Kimberley Oil NL/Martha Borinelli & Ors on behalf of the Yued People/Western Australia [2005] NNTTA 79. In that matter the signatures of Jenny Mogridge, Joseph Ryder and William Warrell were not affixed to either the State Deed or the Heritage Protection Agreement. The reason for this omission was the logistical difficulties in actually locating the named persons, and not a refusal by any of those persons to sign the necessary documentation. Other material presented to the Tribunal demonstrated that the wider claim group had endorsed the execution of the agreements.
More recently the Tribunal was presented with exactly the same scenario as in this matter. In Enmic Pty Ltd v Borinelli (2006) 199 FLR 29 Deputy President Sumner conducted an inquiry where the negotiation parties (which included the first native title party) had reached an “in principle” accord, but due to the failure of both Mr Franks and Mr Joseph Ryder to execute the necessary documentation, a section 38 determination was sought. On the question of Mr Ryder, Deputy President Sumner made the following finding (at 41/[8]): “With respect to Joseph Ryder I accept Mr Van Tonder’s explanation of the difficulty in obtaining his signature. There is no evidence to suggest that he would not sign or opposes a consent determination.”
In this matter Mr van Tonder provided the Tribunal with the following information at the 6 June 2006 Conference:
“MR VAN TONDER: … a working party meeting had been held on 10 March 2005 at which the attendant working party members also passed a resolution to the effect that the tenement should be granted in favour of Empire Oil, firstly. Secondly, that in the case of one or more of the named applicants refusing to sign – because it was anticipated that Mr Franks wouldn’t sign – that in any event the working party would have directed the named applicants to sign off on the State Deed and the Heritage Agreement which most all of them did except Franks and Ryder at this stage… So a resolution to that effect had been passed on 10 March 2005.
MEMBER SOSSO: Now who comprises the working party?
MR VAN TONDER: The working party is comprised of all of the family groups within the Yued claim area. So if there was for instance ten families, each family group would appoint two representatives to the working party and they are the decision making body.”
This is similar to the type of evidence that was presented to the Tribunal in Kimberley Oil NL/Martha Borinelli & Ors on behalf of the Yued People/Western Australia [2005] NNTTA 79. Deputy President Sumner was satisfied that the evidence presented supported a finding that the native title party as a whole agreed to the grant of the petroleum exploration permit (at [8]). In this matter the material presented would also support such a finding.
The key findings that can be made from the evidence presented are as follows:
(a)the first native title party has had significant experience in negotiating agreements with exploration companies for the grant of petroleum exploration permits;
(b)the Tribunal has made numerous consent determinations to facilitate the making of such agreements;
(c)the first native title party has had previous experience in dealing with and negotiating agreements with the grantee party, and the Tribunal has made at least two consent determinations to facilitate the implementation of such agreements: Empire Oil Company (Limited) Western Australia/Martha Borinelli & Ors on behalf of the Yued families [2003] NNTTA 118 and Martha Borinelli & Ors on behalf of the Yued Families/Empire Oil Company (WA) Ltd/Western Australia [2004] NNTTA 18;
(d)the claim group, through the mechanism of the Working Party, has considered and endorsed the proposed Heritage Protection Agreement and the State Deed;
(e)the failure of Mr Franks to execute either the Heritage Protection Agreement or the State Deed was not due to any opposition to the terms of the agreement or any opposition to the grantee party carrying out petroleum exploration on the area of the proposed tenement;
(f)the failure of Mr Joseph Ryder to execute either the Heritage Protection Agreement or the State Deed was due to the inability of his legal representatives to locate him;
(g)Mr Joseph Ryder has previously executed agreements, and has not indicated any opposition to the “in principle” agreements before the Tribunal;
(h)the first native title party is represented by the Southwest Aboriginal Land and Sea Council (SWALSC), the designated representative body for the area of the native title determination application of the first native title party. At the Conference convened on 6 June 2006 the first native title party was represented by Mr van Tonder, a very experienced legal practitioner in this area. Representative bodies are required to “give priority to the protection of the interests of native title holders”- section 203B(4). In carrying out their facilitation and assistance functions, representative bodies are required to consult with, and have regard to the interests of native title holders and claimants, and be satisfied that they understand and consent to any general course of action that a representative body takes on their behalf – section 203BC(1). The fact that the first native title party was represented throughout by SWALSC would suggest that there was parity of bargaining power between the negotiation parties and that the agreement reached was not disadvantageous to the interests of the first native title party; and
(i)at the 6 June 2006 conference, the government and grantee parties unequivocally stated their support for a consent determination.

I am satisfied by the material before the Tribunal that there is a true accord between the negotiation parties and the State Deed and Heritage Protection Agreement truly reflect the accord reached. I am also satisfied that there is nothing in those documents which would prevent the Tribunal making a consent determination on the basis sought.
It is important to highlight one matter which always must be borne in mind when making a consent determination pursuant to subsection 38(1)(c), namely that the future act may be done subject to certain conditions to be complied with.
The Tribunal does not have unlimited power to make conditional determinations under paragraph 38(1)(c). The Tribunal has a limited jurisdiction and limited powers. In particular, the Tribunal is prohibited from determining a condition under paragraph 38(1)(c) that has the effect that the native title parties are to be entitled to payments worked out by reference to profits made, income derived or any things produced by the grantee party. In short, the Tribunal is prohibited from making conditional determinations that require either the grantee or government parties to make royalty payments to the native title party.
A practice has developed whereby the Tribunal will not make a conditional consent determination unless it has sighted the document or documents which set out the conditions which the negotiation parties will be bound by. The rationale for this approach is that if the Tribunal is unaware of the contents of the document there is the possibility that a determination could be made which is not within the Tribunal’s powers. If the parties choose not to provide a copy of the agreement to the Tribunal, it is the practice of the Tribunal to make a simple unconditional consent determination that the future act may be done without any reference to the document in question – see for example Albert Little & Ors on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd [2003] NNTTA 108 (24 October 2003) at [6]–[8] per Deputy President Sumner, and Alexander Brown & Ors on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia [2004] NNTTA 1 (16 January 2004) at [6] per Deputy President Sumner.
The Tribunal has been supplied with copies of both the Heritage Protection Agreement and the State Deed. I have perused both documents, and there are no provisions which amount to profit-sharing conditions of a type dealt with by subsection 38(2).
The draft minute of consent determination set out above, which provides for a conditional determination that the future act be done subject to compliance with the Heritage Protection Agreement agreed “in principle” between the grantee party and the first native title party, is capable of being given effect to pursuant to paragraph 38(1)(c).

The second native title party

While an agreement “in principle” was reached by the grantee party and the first native title party, no accord was reached with the second native title party. As a consequence the Tribunal is required to make a determination pursuant to section 38. However, at the Directions Hearing of 8 December, the number of issues in contention was considerably narrowed. In essence the only issue in contention relates to the nature of the access the grantee party will have to the land and waters comprising Reserve 28607. Reserve 28607 is situated wholly within the boundaries of the proposed tenement and is divided on an east-west line roughly in the middle by the non-overlapping boundaries of the Yued and Amangu Peoples native title determination applications. The Tribunal has been informed that the dividing line in the Reserve between the two native title determination applications follows a fence line.
Before dealing with this issue in it is appropriate to set out firstly the legislative regime governing the grant of petroleum exploration permits in Western Australia. Such permits are granted pursuant to the Petroleum Act 1967 (WA). Petroleum exploration permits are granted over Crown land or private land or partly Crown land and partly private land by means of graticular blocks, each of which are five (5) minutes latitude by five (5) minutes longitude. Such permits are granted for an initial period of six (6) years with a right of renewal for a further five (5) years – sections 15, 27 and 39 Petroleum Act 1967 (WA). The holder of a permit is authorised (subject to the legislation and any conditions): “to explore for petroleum, and to carry out such operations and execute such works as are necessary for that purpose.” - section 38 Petroleum Act 1967 (WA).
Nonetheless, the consent of the Minister administering the Land Administration Act 1997 (WA) is required by an exploration permit holder before entering upon land reserved under the Land Administration Act 1997 (WA) for the purpose of exploring for petroleum – section 15A Petroleum Act 1967 (WA). Such consent is subject to “such conditions as the Minister thinks fit and specifies in the consent.” – subsection 15A(2).
The grant of a petroleum exploration permit does not extinguish native title. This is the situation at common law, and has been recognised in a series of Federal Court decisions – see Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 at 486 per Carr J, Ward v Western Australia (1998) 159 ALR 483 at 581 per Lee J, Western Australia v Ward (2000) 99 FCR 316 at 467 per Beaumont and von Doussa JJ and Daniel v Western Australia [2003] FCA 666 at [838] per Nicholson J. Pursuant to subsection 24MD(3)(a) the non-extinguishment principle applies to the grant of a petroleum exploration permit and accordingly, native title rights and interests are suspended (but not extinguished) to the extent of the inconsistency during the term of the exploration tenement. In this matter the grant of the proposed tenement would be subject to the operation of subsection 24MD(3)(a).
Initially the government party contended that Reserves 28606 and 28607, each of which is reserved for the “Use and Benefit of Aborigines” had the effect of extinguishing any exclusive native title in the area of the land vested. Subsequently the government party abandoned its submission with respect to Reserve 28607, and accepted that the second native title party was entitled to rely on section 47A of the Act in respect of the Reserve.
Reserve 28607 is a reserve for the Purposes of Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA), and was vested in the Aboriginal Lands Trust pursuant to sections 26 and 37 of that legislation. The Aboriginal Lands Trust entered into a 99 year lease (commencing on 1 July 1980) of the land comprising the reserve with Ashley and Leah Bell. Importantly, the Lease specifically provides that it is not to be taken as affecting the declaration of Reserve 28607 as a reserve for Aboriginals under Part III. Clause 6(h) of the Lease provides: “Nothing in this Lease shall in any way affect any past or future declaration of the demised premises as a reserve for Aboriginals under Part III of the Act or any rights or powers of the Trust arising as a consequence thereof.”
Section 47A applies, inter alia, in relation to an area that is “held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders” - subsection 47A(1)(b)(ii). One of the purposes of the Aboriginal Lands Trust is “to acquire and hold land, whether in fee simple or otherwise, and to use and manage that land for the benefit of persons of Aboriginal descent” – section 23(b) Aboriginal Affairs Planning Authority Act 1972 (WA). In Neowarra v Western Australia [2003] FCA 1402 Sundberg J found that land vested in the Aboriginal Lands Trust was expressly held for the benefit of Aboriginal peoples – see [697] – [708]. Consequently, as the Aboriginal Affairs Planning Authority Act 1972 is a statute passed for the benefit of Aboriginal people, section 47A applies to actions authorised or undertaken pursuant to its provisions.
In order for a native title party to rely on section 47A, two conditions must be satisfied. The first is that “when the application was made” the area must be held expressly for the benefit etc of Aboriginal peoples – subsection 47A(1)(b). An application is “made” for the purposes of section 47A when it is filed in the Federal Court – Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536 at 545/[28] per Merkel J. In this matter the Amangu People native title determination application was filed with the Federal Court on 19 April 2004. Accordingly, this requirement has been satisfied.
Secondly, paragraph 47A(1)(c) requires that when the claimant application was made, one or more members of the native title claim group occupied the area. The concept of “occupation” for the purposes of paragraph 47A(1)(c) has been given a very broad interpretation by various Federal Court Judges. For example Olney J held in Hayes v Northern Territory (1999) 97 FCR 32 (at [162]):
“The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.”

Merkel J in Rubibi Community v Western Australia (2001) 112 FCR 409 found that the following constituted occupation of the claim area for the purposes of subsection 47A(1)(c) (at [182]/450):

(a)continuing supervisory and protective activities of the senior Yawuru law men in relation to the claim area;
(b)the holding of traditional ceremonies on the claim area;
(c)continued storage of sacred objects on the claim area; and
(d)occupancy of the Leregon structures constructed on the claim area by members of the Lee family, who were acknowledged to be members of the claim group.

In this matter there is uncontested evidence before the Tribunal that members of the second native title party have continuously used the reserve area to exercise their registered native title rights and interests, including camping, hunting and collecting bush tucker and medicines. Affidavits of Wayne David Warner and Barry Allan Dodd, both of who form part of the Applicant of the second native title party, were filed with the Tribunal. Both gentlemen depose to accessing the Reserve for hunting and harvesting bush foods and of the spiritual importance of the relevant land and waters. On this basis there is sufficient material before the Tribunal to satisfy the “occupancy” requirement of paragraph 47A(1)(c).
As a consequence of the second native title party satisfying the requirements of subsection 47A(1), subsection (2) applies. This subsection ensures that any extinguishment of native title by the grant, reservation or creation of any other prior interests is disregarded.
The government party informed the Tribunal that, in the absence of agreement between the grantee party and the second native title party, it intends to act pursuant to section 91B of the Petroleum Act 1967 (WA) to place a condition on the proposed tenement prohibiting the grantee party entering that portion of Reserve 28607 located with the Amangu People’s native title determination application. Section 91B provides as follows:
“Conditions prohibiting entry on certain land
(1) In this section -
“holder” means the holder of the permit, drilling reservation, lease or licence.
(2) The conditions subject to which a permit, drilling reservation, lease or licence is granted may include a condition prohibiting the holder from entering specified land within the permit area, drilling reservation, lease area or licence area.
(3) The Minister may, at any time, by instrument in writing served on the holder, vary or revoke a condition referred to in subsection (2).”
The government party informed the Tribunal that the proposed condition will provide: “This Title will be granted subject to the condition prohibiting the Title holder from accessing the land specified on the attached plan.” The government party lodged with the Tribunal a draft plan with maps indicating that the proposed condition will apply to that part of Reserve 28607 which falls within the boundaries of the Amangu People native title determination application.
The government party submitted that the proposed condition was totally separate from, and independent of, any condition imposed by the Tribunal under subsection 38(1)(c). While the government party initially did not oppose the Tribunal making a conditional determination dealing with access to Reserve 28607 it subsequently opposed such a course of action on the following bases:
(a) there is no guarantee that the Amangu People will remain as a registered native title party for the claim area, or so much of it as is located in Reserve 28607 when the grantee party commences exploration work; and
(b) the rights and interests of the second native title party are protected by the Aboriginal Affairs Planning Authority Act and the Aboriginal Heritage Act 1972 (WA).
The second native title party submitted that the land and waters comprising Reserve 28607 were important to its members and that despite the grantee party contending that exploration would result in minimal ground disturbing activities, nevertheless disturbance could be significant. Further, as the Reserve area was the only area within the proposed tenement where the second native title party could obtain a determination of exclusive native title, it was contended that a condition should attach to the grant either excluding assess to the Reserve or providing that the grantee must first obtain consent of the second native title party. The Condition proposed by the second native title party was as follows: “That the Grantee Party is prohibited from entering the part of Reserve 28607 which is covered by the NTP’s application for a determination of native title, unless the Grantee Party first obtains the consent of the NTP.”
The grantee party also lodged contentions with the Tribunal, but so far as is presently relevant the grantee party contended:
“14. The Grantee Party is aware that the Western Australian Department of Industry and Resources are considering including a condition in the offer to grant the EP 4/04-5 Permit where access to Reserve 26807 where it is located within the Amangu Claim, may be the subject of Section 91B of the Petroleum Act 1967.
15. The Grantee Party is not in favour of that condition and will assess the Offer of a Grant of an Exploration Permit by the Department of Industry and Resources and all or any conditions that the State may deem appropriate to include when the Grantee Party is evaluating such an Offer which the Grantee Party is seeking.”

It is clear that the grantee party opposes the Tribunal making a determination along the lines sought by the second native title party. It is also clear that, irrespective of what the Tribunal may determine, the government party intends to grant the tenement with a condition prohibiting entry by the grantee party. If the Tribunal were to make a conditional determination that the consent of the second native title party be obtained before the grantee party could enter that part of Reserve 28607 within the Amangu native title determination application, it would be irrelevant. The fact is that the government party has the statutory means of absolutely preventing access by the grantee party. Any conditional determination by the Tribunal that gave the native title party the right to allow access would be of no effect.
Before making a section 38 determination the Tribunal is required to take into account the criteria outlined in section 39. In this matter there is only one area of contention between the parties, and that concerns access to Reserve 28607. In all other respects the parties agree that the Tribunal should make an unconditional determination.
In making this Determination with respect to the land and waters of the proposed tenement falling within the outer boundaries of the Amangu native title determination application I have taken into account the following considerations:
(a)from the material lodged with the Tribunal it is not likely that the grant of the proposed tenement will have a major effect on either the enjoyment by the second native title party of their registered native title rights and interests, their way of life, culture and traditions, the development of social and economic structures or freedom of access to the relevant land or waters or areas or sites of particular significance – subsection 39(1)(a)(i), (ii), (iii) (iv) and (v). I note that the second native title party submitted that it wished to use Aboriginal reserves as living areas and for economic development by the collection of native seeds for use in mining rehabilitation. Insofar as Reserve 28607 will now not be accessed by the grantee party for petroleum exploration, any possibility of interference with these aspirations, will be totally avoided. Indeed, all of the evidence lodged by the second native title party emphasised the importance of Reserve 28607 to members of the Amangu People. I accept that this area of land and waters is accessed by members of the second native title party, and it is of spiritual importance to members of the claim group. The proposal by the government party to prohibit access by the grantee party to the

Amangu portion of the Reserve will ensure that there will be no disruption to traditional activities or no disturbance to any areas or sites of significance;
(b) the opinions and wishes of the second native title party in relation to the management, use and control of the relevant part of Reserve 28607 has been fully accommodated by the proposed exclusion of the grantee party from that area – subsection 38(1)(b);
(c) it is likely that the grant of the proposed tenement will result in some localised economic benefits – subsection 38(1)(c);
(d) it is permissible for the Tribunal to take into account the public interest in the development and maintenance of a vibrant exploration and mining industry – see Evans v Western Australia (1997) 77 FCR 193 at 215 per Nicholson J. It is particularly important to recognise the key role that the petroleum industry plays, especially as Australia is a net importer of oil. It is a matter of public knowledge that exploration for oil and gas is in the national interest and that, wherever possible, such exploration should be encouraged and facilitated – subsection 38(1)(d).

It follows that it is appropriate to make a determination that, so far as the second native title party is concerned, the proposed tenement be granted without conditions. If the government party had not indicated that it intended to grant the proposed tenement on the condition that access by the grantee party to Reserve 28607 would be prohibited, I would have made a conditional determination along the lines sought by the second native title party.

Determination

The determination of the Tribunal is that the act, being the grant of Petroleum Exploration Permit 04/04-5 to Empire Oil Company (WA) Limited may be done subject to compliance with the terms of the Heritage Protection Agreement dated 8 May 2006 and executed by the South West Aboriginal Land and Sea Council, Empire Oil Company (WA) Limited and 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 Yued People.

John Sosso

Member