Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd
[2007] NNTTA 78
•11 September 2007
NATIONAL NATIVE TITLE TRIBUNAL
Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, [2007] NNTTA 78 (11 September 2007)
Application No: WF07/18, WF07/19
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into future act determination applications
Nyikina and Mangala Peoples (WC99/25) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Rey Resources Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: John Catlin, Member
Place: Perth
Date: 11 September 2007
Catchwords: Native title – future acts – applications for determination for the grant of petroleum exploration permits – ancillary agreement – State Deed not fully executed – logistical difficulties – native title party consents to the determination – consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth), ss. 29, 31, 35, 38, 109, 203B
Petroleum Act 1967 (WA)
Cases:Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006) Daniel O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50 (2001) 164 FLR 361
Hearing date: 13 August 2007
Representative of the Mr Julian Ludowici, Rey Resources Ltd
grantee party:
Counsel for the Mr Robert Powrie, Kimberley Land Council
native title party: Ms Cara Peek, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 27 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of future acts, namely the grant of petroleum exploration permits EP10/04-5 and EP11/04-5 (‘the proposed permits’) under the Petroleum Act 1967 (WA) to Rey Resources Ltd (‘the grantee party’).
The native title party in respect of these proceedings is:
Anthony Watson, Daisy Lungunan, David Watson, Del Roe, Elizabeth Riley, George Riley, James Watson, John Watson, Lionel Jumbarra, Lucy Marshall, Mary Watson, Maude Ningella, Neil Buckle, Neville Poelina, Patsy Yamboo, Peter Francis, Sammy Ah Choo and Willie Lennard on behalf of Nyikina and Mangala Peoples (WC99/25) (‘the native title party’)
The area and location of the proposed permits are as follows:
· EP10/04-5 – 5037.77 square kilometres, located approximately 115 kilometres south of Derby in the Shires of Derby–West Kimberley and Broome; and
· EP11/04-5 – 5760.22 square kilometres, located approximately 137 kilometres southeast of Derby and 120 kilometres west of Fitzroy Crossing in the Shire of Derby–West Kimberley.
Each of the proposed permits is overlapped 100 percent by the registered claim of the Nyikina and Mangala Peoples (WC99/25 – registered from 28 September 1999).
On 24 July 2007, being a date more than six months after the s 29 notice was given, the Minister for Resources, State of Western Australia made an application pursuant to s 35 of the Act for a future act determination under s 38 in respect of each of the proposed permits. It is stated in each application that the negotiation parties have reached agreement that the acts may be done and that a State Deed (an agreement of the kind contemplated by s 31(1)(b) of the Act) has been signed by the ‘majority’ of persons collectively comprising the applicant for the Nyikina and Mangala claim. It is further stated that the Kimberley Land Council (‘KLC’), (the representative body for native title claimants in the Kimberley region pursuant to s 203B of the Act instructed to act on behalf of the native title party) and the grantee party ‘propose to execute an ancillary agreement’ and that to enable the ‘timely grant’ of the proposed permits, each of the parties is ‘willing to agree to a future act determination by consent’.
Appended to each of the s 35 applications is a minute of consent determination in the following terms, subsequently executed by Mr Robert Powrie, Principal Legal Officer for the KLC for and on behalf of the native title party, Mr Bruce Preston, Managing Director of Rey Resources Ltd, and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:
‘PROPOSED FUTURE ACT CONSENT DETERMINATION
Nyikina and Mangala WAD6099/98 (WC99/25)
(Native Title Party)
- and –
The State of Western Australia
C/- Department of Industry and Resources(Government Party)
- and –
Rey Resources Ltd
(Grantee Parties)
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 has 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 10/04-5 may be done’
A minute of consent determination in similar terms, fully executed in counterparts, is also provided in relation to EP11/04-5.
The Tribunal has the 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 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 13 August 2007 the Tribunal conducted a hearing at which each of the parties was represented. Mr Robert Powrie for the native title party advised that six of the eighteen people jointly comprising the native title applicant had signed two State Deeds, but that logistical difficulties precluded the collection of further signatures in a timely manner. Mr Powrie confirmed that no named applicant had refused to sign the State Deeds. It was further established that the ancillary agreement between the grantee party and the native title party had been executed on 5 May 2007 and that Mr Powrie believed the KLC had authorisation to consent to a determination that the acts be done. Mr Julian Ludowici, for the grantee party, confirmed Rey Resources’ consent to a determination, and the Government party provided written confirmation of its consent following the conference. The hearing was adjourned and directions made for the provision of evidence clarifying the circumstances under which the KLC believes it has authorisation to consent to a determination.
On 7 September 2007 the Tribunal received an affirmed affidavit of Cara Margaret Peek, solicitor employed by the Kimberley Land Council. Ms Peek relevantly deposes:
‘3. On or about 16 August 2006, the Nyikina and Mangala Native Title Claim Group instructed the KLC to do the following
a.Negotiate and enter into Native Title and Heritage Protection Agreement (HPA) with Grantees (Exploration and Mining Companies) seeking access to traditional lands, on the terms and conditions as contained in the KLC Standard HPA, as approved by the Executive from time to time.
b.To do all things necessary to enter into a consent determination with the Grantee if the Grantee has entered into a HPA …
…
4.The KLC, on behalf of the Native Title Party, entered into negotiations with the Grantee Party to enter into a Native Title and Heritage Protection Agreement (‘HPA’).
5.On or about April 2007, the parties reached agreement that the future act may be done, subject to the terms and conditions of the HPA.
6.On or about 9 May 2007 I attended a meeting at Myroodah Crossing with the Nikina (sic) and Mangala Native Title Claim Group and Brendan Renkin, then the Future Acts Legal Officer at the Kimberley Land Council.
7.Brendan Renkin is no longer employed at the Kimberley Land Council and the information deposed to in this affidavit is based on my own direct observation of events.
8.At that meeting I was present when Brendan Renkin explained the contents HPA (sic) that had been negotiated with Rey Resources on behalf of Nikina (sic) and Mangala Native Title Claim Group.
9.After some group discussion and further clarification by Brendan Renkin of the main points in the agreement, the group agreed to the terms negotiated by the KLC on their behalf.
10.The Applicant for the Nikina (sic) and Mangala Native Title Claim agreed to the terms of the HPA as negotiated by the KLC on their behalf.
11.Brendan Renkin said to the group works to the effect that “as this matter is going through the right to negotiate scheme the State requires that an additional document called the State Deed to be executed by the named applicants. This deed confirms that the claim group has authorised the agreement, negotiated in good faith and won’t seek compensation from the state.”
12.On or about 9 May 2007 the Applicant for the Nikina (sic) and Mangala Native Title Claim who were present at the meeting signed the State Deed for the HPA in relation to Tenements EP10/04-05 & EP11/04-05.
13.In light of the difficulties in obtaining all the necessary signatures for the State Deed, and the standing instructions on which the KLC act, the KLC proposes instead to enter in a Consent Determination in order to give effect to the HPA.
14.I believe that entry into a Consent Determination is consistent with the instructions of the claimants.’
The parties are legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate. The Tribunal has previously accepted logistical difficulties in obtaining signatures of named applicants in the Kimberley region to a State Deed as a legitimate basis for seeking a consent determination (see for example Benny Duncan and Others on behalf of the Ngarrawanji People/Maggie John and Others on behalf of the Malarngowem People/Vageta Pty Ltd/Western Australia, NNTT WF06/5, [2006] NNTTA 54 (15 May 2006) Daniel O’Dea). I adopt the findings from paragraph [13] of that determination in relation to the responsibilities of the KLC as a representative body and the manner in which the Tribunal is to carry out its functions under s 109 of the Act. Taking those findings into account I accept the advice of the KLC that appropriate consent has been given to the determination by the native title party.
Determination
By consent the determination of the Tribunal is that the acts, namely the grant of petroleum exploration permits EP10/04-5 and EP11/04-5 to Rey Resources Ltd, may be done.
John Catlin
Member
11 September 2007
3
2
0