Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western...
[2004] NNTTA 38
•10 June 2004
NATIONAL NATIVE TITLE TRIBUNAL
Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia/Victoria Diamond Exploration Pty Ltd/Grange Court Pty Ltd [2004] NNTTA 38 (10 June 2004)
Application: WF04/7
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into a Future Act Determination Application
Victoria Diamond Exploration Pty Ltd (Applicant/Grantee party)
- and -
Grange Court Pty Ltd (Grantee party)
- and –
The State of Western Australia (Government party)
- and -
Mr Glen Councillor and Others on behalf of Hutt River People (WC00/1) (Native Title party)
- and -
Mr Keith Councillor and Others on behalf of the Naaguja People (WC97/73) (Native Title party)
- and -
Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community (WC96/93) (Native Title party)
FUTURE ACT DETERMINATION BY CONSENT
Tribunal: Deputy President, The Hon EM Franklyn QC
Place: Perth
Date: 10 June 2004Catchwords: Native title - future act - proposed grant of petroleum exploration permit over lands the subject of three registered native title claims - agreement reached by State, grantee and registered native title claimant that the grant may be made in respect of the lands the subject of one such claim - consent determination sought in respect of land subject of the two remaining native title claims - two named claimants deceased – one named claimant mentally incapacitated - heritage agreement with grantee entered into by all remaining registered named claimants - who agree that the act may be done and support a consent determination - consent determination that act may be done.
Legislation: Native Title Act 1993 (Cth), ss 31, 35, 38, s 156, s 203BC(2)
Cases:Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon CJ Sumner, 22 June 2001
Hearing date: 28 May 2004
Representative of
The Native Title party: Mr Cedric Davies, Yamatji Land and Sea Council
Counsel for the
Native Title Party: Ms Raina Savage, Yamatji Land & Sea Council
Representative of the
Grantee Party: Mr Chas Lane, Victoria Diamond Exploration Pty Ltd
Representative of the Ms Maryie Platt, Department of Industry and Resources
Government party: Mr Trevor Creewel, State Solicitor’s Office
REASONS FOR FUTURE ACT DETERMINATION
[1] On 18 June 2003, 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 (EP1/02-3) under the Petroleum Act 1967 (“The permit”) to Victoria Diamond Exploration Pty Ltd and Grange Court Pty Ltd (“the Grantee”).
[2] The land the subject of the proposed permit covers land the subject of the undermentioned three registered Native Title Claims the names of the respective named registered claimants being set out hereunder in each case:
· Registered Claim WC96/93 – Mr Dennis Comeagain, Mr Eric Papertalk, Mr Kenneth Papertalk and Mrs Margaret Green on behalf of the Mullewa Wadjari Community;
· Registered Claim WC00/1 – Mr Glenn Councillor, Mr Keith Councillor, Mr Sandy Davies, Mr Vincent Councillor, Ms Iris Curley, Ms Janet Kelly, Ms Nyinnghi Whitby on behalf of the Hutt River Group; and
· Registered Claim WC97/73 – Mr Glen Derrick Councillor, Mr Keith Edward Councillor, Mr Lyndsey Graham McDonald, Mr Reginald Councillor, Mr Vincent Councillor and Ms Yvonne Joan Radcliffe on behalf of the Naaguja Peoples.
[3] On 15 March 2004, being a date more than six months after the s 29 notice was given, the grantee 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 of the Act, naming the three Native Title parties as being affected by the future act. Paragraph 10 of the application stated that the Government party and the Grantee parties had not been able to reach agreement with the Hutt River Native Title party and the Naaguja Native Title Party on the doing of the act within six months of the s 29 notification date.
[4] A document referred to as a “State Deed”, expressed as being an agreement for the purposes of s 28(1)(f) and s 31(1)(b) of the Act that the said future act may be done, was executed by the State, the Grantee and the Mullewa Wadjari Community and lodged with the Tribunal on 28 January 2004. This Deed can only have application to the grant of the permit to the extent that the land the subject thereof is situated upon the land the subject of WC96/93. It does not and cannot authorise the grant of the permit over the land the subject of WC97/73 and WC00/1. It is not, on its own, an agreement to which s 35(3) of the Act applies, not being an agreement with “each of the native title parties” as provided for in s 31(1)(b). By that deed the Mullewa Wadjari Community also consents to a determination that the permit may be granted. The Mullewa Wadjari Community has taken no part in the s 35 proceedings. The expression the “negotiation parties” as hereafter used herein refers to the State, the Grantee, the Hutt River People and the Naaguja People.
[5] On 7 April 2004 the Tribunal convened a Preliminary Conference during which it was established that since the s 35 determination application had been made, the negotiating parties had been able to reach agreement over the proposed future act, but that various difficulties surrounded the signing of an ancillary agreement and State Deed by all named native title applicants. The Grantee party requested that the s 35 application be amended to reflect that that determination be made by consent. I directed that to formalise that amendment a letter should be lodged with the Tribunal specifying the grounds on which a determination by consent should be made.
[6] On 3 May 2004 the Tribunal received correspondence from the Grantee party requesting that the s 35 determination application regarding the permit be amended to an application for a consent determination. The letter was set out in the following terms:
“Since lodgement of the Form 5 on 15 March 2004 the negotiating parties have reached agreement, and an ancillary agreement has been signed by the Grantee Parties and delivered to the Native Title Parties, but there remain complex administrative problems with the signatories on behalf of the Naaguja People and Hutt River People, in that the names of some of the signatories are spelled incorrectly on their Native Title Determination Application. Additionally two named applicants are deceased and one is incapacitated and therefore unable to sign.
Nevertheless, the Negotiating Parties have all reached agreement that the future act many be done, and at the Preliminary Conference indicated their consent that a Consent Determination would be supported, and consequently Paragraph 10 of the Form 5 lodged on 15 March 2004 no longer applies.”
[7] On 28 April 2004 a Minute of Consent Determination in respect of the s 35 application was prepared and signed by the Government party and distributed for execution by the representatives of the Grantee party and the Hutt River and Naaguja Peoples. This Minute of Consent was executed by all parties in counterparts, lodged with the Tribunal and is in the following terms:
“Future Act Determination Application WF2004/007
IN THE MATTER OF a Consent Determination under Section 38 of the Native Title Act 1993 (CTH)
PROPOSED FUTURE ACT CONSENT DETERMINATION
Hutt River (WC00/1)
Naaguja (WC97/73)(Native Title Parties)
- and -
The State of Western Australia
C/- Department of Industry and Resources
(Government Party)- and -
Victoria Diamond Exploration Pty Ltd
and
Grange Court Pty Ltd
(Grantee Party)DETERMINATION
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 consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 1/02-3 may be done.”
[8] On 14 May 2004 the Tribunal received an affidavit sworn the 11 May 2004 by Raina Savage, Legal Officer with Yamatji Land & Sea Council the representative of the Native Title parties, with annexures (RAS1) being, a certified copy of the Death Certificate for Vincent Cyril Councillor, a certified copy of the Death Certificate for Glen Derrick Councillor (RAS2) and email correspondence addressed to Ms Trish Bushby of Derbarlyerrigan Aboriginal Medical Heath Service.
[9] Affidavit of Raina Savage
I, Raina Savage, of 43 Maley Way, Geraldton, in the State of Western Australia, Solicitor, being duly sworn make oath and say as follows:
1.I am a Legal Officer employed by the Yamatji Land and Sea Council (“YLSC”) in their Geraldton office.
2.I have carriage of both the Naaguja (WC97/73) and Hutt River (WC00/01) native title claims under the supervision of Mr David Ritter Principal Legal Officer.
3.The Naaguja and Hutt River native title claim groups have each nominated members of their respective native title claim group to form a working group, of up to twelve persons, to give instructions to the YLSC as their legal representatives.
4.Both the Naaguja and Hutt River native title claim groups have instructed the YLSC that their respective working groups are duly authorised by the respective native title claim group to deal with all matters arising from the conduct of the native title application, including the conduct of future act negotiations.
5.I met with the Naaguja working group on 19 April 2004 and received instructions in relation to the progression of the application for the petroleum exploration permit 1/02-3 by way of consent determination.
6.A quorum of the Naaguja working group being present the meeting passed the following resolution: “That the Naaguja working group resolves, and instructs the YLSC, to agree to the grant of Petroleum Exploration Permit application 1/02-3 by consent determination”.
7.The resolution was moved by Ms Yvonne Radcliffe; seconded by Mr Keith Councillor, and passed unanimously.
8.I met with the Hutt River working group on 21 April 2004 and received instructions in relation to the progression of the application for petroleum exploration permit 1/02-3 by way of consent determination.
9.A quorum of the Hutt River working group being present the meeting passed the following resolution: “That the Hutt River working group agrees, and instructs the YLSC to proceed, with a consent determination in relation to the grant of Petroleum Exploration Permit application 1/02-3”.
10.The motion was moved by Mr William Mallard Junior, seconded by Ms Delveen Whitby; and carried unanimously.
11.In my capacity as Legal Officer for the Naaguja and Hutt River native title claims I have had personal acquaintance with the majority of named claimants on both the Naaguja and Hutt River native title claims.
12.Annexed to this affidavit and marked “RAS1” is a certified copy of the death certificate of “Vincent Cyril Councillor”, late of Unit 8/34 Swan Drive, Geraldton WA.
13.Prior to his death in May 2003 I had known Mr Vincent Councillor personally for a period of approximately eleven months, as a named claimant and working group member on both the Naaguja and Hutt River native title claims.
14.From my personal knowledge of the matter I can confirm that the person referred to in the annexed document “RAS1” is the same person as “Vincent Councillor” who is a named claimant on the Naaguja native title determination Form 1.
15.From my personal knowledge of the matter I can confirm that the same Vincent Cyril Councillor referred to in the document “RAS1” is the “Vincent Councillor” who is a named claimant on the Hutt River native title determination Form 1.
16.Annexed to this affidavit and marked “RAS2” is a certified copy of the death certificate of “Glen Derrick Councillor” late of 21b Grey St, Northampton, WA.
17.Prior to his death in February 2004 I had known Mr Glen Councillor personally for a period of approximately twenty months as a named claimant and working group member on both the Naaguja and Hutt River native title claims.
18.From my personal knowledge of the matter I can confirm that the person referred to in the annexed document “RAS2” is also the same person as “Glen Derrick Councillor” who is a named claimant on the Naaguja native title determination Form 1.
19.From my personal knowledge of the matter I can confirm that the person referred to in the annexed document “RAS2” is also the same person as “Glenn Councillor” who is a named claimant on the Hutt River native title determination Form 1.
20.On 27 February 2004 I spoke to Ms Nikki Councillor, a member of the Naaguja working group and daughter of Mr Reginald Councillor who is a named applicant on the Naaguja native title claim.
21.Ms Councillor stated that her father is permanently incapacitated with dementia and is hospitalised in Nazareth House nursing home in Geraldton, and that she intended to apply for power of attorney in relation to her father’s affairs.
22.On 30 April 2004 I spoke to Ms Councillor who informed me that her father’s treating physician was Dr Andre Cronje of Derbalyerrigan (sic) Aboriginal Medical Service in East Perth.
23.On 4 May 2004 I spoke to Ms Patricia Bushby, site manager for the Derbalyerrigan (sic) Aboriginal Medical Service, regarding the release of medical information concerning Mr Reginald Councillor.
24.Ms Bushby agreed to provide the medical records upon receipt of a Release of Medical Information form signed by one of Mr Councillor’s children.
25.Annexed to this affidavit and marked “RAS3” is a copy of the letter I sent to Ms Bushby confirming my request for release of the medical information.
26.As Ms Nikki Councillor was in Geelong Victoria for two weeks I spoke to her sister Ms Karen Nawaqavou on 3 May 2004 and she agreed to sign the Release of Medical Information form on behalf of her father.
27.On 4 May 2004 Ms Nawaqavou informed me that she had signed the Release of Medical Information form and returned it to Derabalyerrigan (sic).
28.I attempted to contact Ms Bushby at Derbalyerrigan (sic) by telephone and email on 5, 6, 7 and 10 of May 2004 to try to confirm whether the medical records had been released, however on each occasion Ms Bushby was unavailable.
29.On 6 May 2004 I spoke to the medical receptionist at Derbalyerrigan (sic) who stated that to her knowledge the medical information had been posted to my address.
30.On 10 May 2004 I spoke to Ms Colleen Keen, Manager of Clinical Services at Derbalyerrigan.
31.Ms Keen informed me that they were not authorised to release Ms Councillor’s records without a Release of Medical Information form signed by a person acting with power of attorney for Mr Councillor, or with guardianship orders in relation to Mr Councillor, or where all of Mr Councillor’s children have signed an authority to release the information or where the records were summonsed as part of legal proceedings.
32.To my knowledge there are no guardianship orders in place for Mr Councillor, nor does any person have his power or (sic) attorney.
33.I am in the process of securing the signatures of all six of Mr Councillor’s children in order to facilitate the release of the medical information, which process I expect to have completed within three to four weeks.
[10] On 24 May 2004 at the request of Mr Chas Lane, the Grantee representative, the Tribunal issued a summons pursuant to s 156 of the Act to Ms Ann Donnelly, Medical Administrator of Derbarlyerrigan Aboriginal Medical Services, to give evidence and produce medical records in respect of Mr Reginald Councillor on 28 May 2004. The Summons required that Ms Donnelly appear at a Listing Hearing to be convened on 28 May 2004 at the offices of the Tribunal. The summons was sent to Mr Lane for service.
[11] Accompanying the Summons was a covering letter signed by the Tribunal’s case manager at my direction, advising that should the medical records be lodged with the Tribunal in advance of the Hearing and found by me to provide sufficient evidence of Mr Councillor’s incompetency, Ms Donnelly would not be required to appear in person before the Tribunal.
[12] On 27 May 2004 the Tribunal received documentation from Derbarlyerrigan Health Service Inc. The documentation comprised:
(a)a letter on Bentley Health Service letterhead from a Ms Annette Taylor, Registered nurse (ACAT), to Dr Andre Cronje, outlining Mr Councillor’s medical condition and circumstances as of 5 June 2002;
(b)a typewritten sheet entitled Patient Clinical Summary (12/2000), carrying handwritten notes with the initials “AC”; and
(c)Five sheets entitled “Progress Notes”, which appear to have been entered by hand by a variety of personnel from 5 September 2001 to 25 May 2004.
[13] In response to an enquiry by the Tribunal Case Manager, made at my request, as to the initials “AC” and whether there was any reason why the other parties should not see the records produced prior to the hearing date, a facsimile was received by the Tribunal from Ms Colleen Keen, as Manager of Clinical Services, on Derbarlyerrigan Health Service Inc letterhead. In this correspondence Ms Keen “affirmed”:
“1. That on the handwritten notes referring to Reginald Councillor, the initials A.C. stand for Dr Andre Cronje. The notes were written by Dr Cronje after he examined Mr Councillor”.
[14] Ms Keen further affirmed that the handwritten notes were compiled variously by Neville Bartlett, Dr Anetta Ryback and Dr Andre Cronje and that the Patient Clinical Summary is a standard document used in Derbarlyerrigan’s medical files. Ms Keen also stated:
“2. Please note that a verbal request has come through this afternoon from Agmaroy Nursing requesting referral for Mr Councillor to Bentley Psychiatric Team.
3. In order to send the medical information through to the other parties before the hearing, you would need to first get written consent from all of Mr Councillor’s children. If this is not possible, you will have no option but to present the information at the hearing tomorrow.”
[15] On my instructions Ms Donnelly was advised that her presence was not required at the hearing. On 28 May 2004 the Tribunal conducted a Hearing during which I made the medical records of Mr Reginald Councillor available to all parties should they desire to see them. Ms Maryie Platt, for the Government party, perused the records, and the other parties, all of whom attended via telephone conferencing facilities, elected not to view the records after I verbally summarised them. The Tribunal and all parties concurred that the records were sufficient to establish Mr Councillor’s medical incompetency.
[16] 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 the representatives have advised the Tribunal of the Consent, (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, Hon CJ Sumner, 22 June 2001). The Native Title Parties and the State are legally represented in this matter. All of the surviving registered Hutt River and Naaguja Native Title Claimants, with the exception of Mr Reginald Councillor, have signed the ancillary agreement and the proposed State Deed and have expressed their Consent to the determination. Having regard to the fact that medical records submitted to the Tribunal confirm the assertion that Mr Reginald Councillor is mentally incompetent and therefore unable to sign the agreement, I am satisfied that the respective Native Title parties understand and consent to the general course of action that the representative body has taken on their behalves, and, in particular, to the consent determination. It is clear on the evidence that each Native Title Party has consented in accordance with a process of the kind referred to in s 203BC(2)(b) of the Act. I also take into account the Deed entered into by the State, the grantee and the Mullewa Wadjari Community in respect of the land the subject of the registered Native Title Claim of that group (WC96/93). Without such agreement a determination on this application would be totally ineffective to permit the act to be done. In my opinion there is nothing in the facts of this matter which make a Consent Determination in the terms of the Minute inappropriate.
[17] In issuing the Summons in this matter to produce and, if necessary, give evidence as to Mr Reginald Councillor’s medical state and resulting incompetence, I was mindful of the caution issued by Member Williamson QC in Northern Territory/Risk (Larrakia)/Phillips Oil Company Australia DF97/1, 9 February 1998 (at p 15) that such summons’ should be issued only sparingly. However in the in the present case I am satisfied it was appropriate. There were the questions; how long it would in fact take for Ms Savage to obtain the consent of all Mr Councillor’s children? If she did obtain all such consents, to whom would the medical records be released and, importantly, would all of the parties have access to them or would further consents to such access be needed. Further advantages were the disposal of the matter in a timely manner and saving of costs to the parties.
Determination
[18] By consent, the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit EP1/02-3 to Victoria Diamond Exploration Pty Ltd and Grange Court Pty Ltd may be done.
The Hon E M Franklyn QC
Deputy President10 June 2004
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