Nyikina & Mangala People and Rubibbi People/State of Western Australia/Otto Oil Pty Ltd

[2004] NNTTA 87

NATIONAL NATIVE TITLE TRIBUNAL

Nyikina & Mangala People and Rubibbi People/State of Western Australia/Otto Oil Pty Ltd, [2004] NNTTA 87 (20 September 2004)

Application: WF04/13

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

Rubibi People (WC99/23) and Nyikina & Mangala People (WC99/25) (Native Title parties)

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Otto Oil Pty Ltd (Grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION BY CONSENT

Tribunal:                   Deputy President, The Hon. E.M. Franklyn QC
Place:   Perth
Date:   20 September 2004

Catchwords: Future Act – proposed grant of Petroleum Permit – s 35 application lodged by the State – Grantees negotiations carried out by its parent company as its representative – Ancillary agreements reached with Native Title parties by parent company and executed by it as principal – Parties advised of concern by Tribunal that no ancillary agreement enforceable against grantee – Ancillary Agreement renegotiated and executed by Grantee and Native Title parties – death of named registered Native Title claimant established – Parties request consent determination – Determination by consent that Act may be done.

Legislation:               Native Title Act 1993 (Cth) ss35, 38

Cases: Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50

Hearing dates:          3 September 2004.

Representative of the
Native Title Parties:       Kimberley Land Council Aboriginal Corporation

Counsel for the

Native Title Parties:      Mr Ian Irving, Kimberley Land Council Aboriginal Corporation

Representative of the
Grantee Party:                Mr Keith Spencer, Kimberley Oil NL  

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

REASONS FOR FUTURE ACT DETERMINATION

1. On 2 June 1999, 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 (EP5/97-8) under the Petroleum Act 1967 (“The Permit”) to Otto Oil Pty Ltd (the grantee). Kimberley Oil NL (KO) has acted as the grantee’s representative in all dealings regarding EP5/97-8 before the Tribunal, Otto Oil Pty Ltd being a wholly owned subsidiary of Kimberley Oil NL.

2. The area of the proposed permit overlaps land the subject of registered Native Title Claim WC99/23 on behalf of the Rubibi People and land the subject of registered Native Title Claim WC99/25 on behalf of the Nyikina & Mangala People.   Both claimant groups are represented by the Kimberley Land Council Aboriginal Corporation (KLC), Mr Ian Irving, a solicitor,  appearing before the Tribunal on its behalf.

3. On 28 June 2004, 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 respective registered Native Title Claimants on behalf of the Rubibi People and Nyikina & Mangala People as the Native Title parties.

4. An amended s.35 application was subsequently lodged by the grantee on 26 July 2004. This application stated that although agreement had been reached between the parties, a determination of the Tribunal was sought for the following reasons:

   Nyikina and Mangala (WC99/25)

   An ancillary agreement titled “Native Title and Heritage Protection Agreement” (“Agreement”) dated 20 April 2004, has been executed by the Kimberly Land Council on behalf of the Nyikina and Mangala (the First Native Title Party) and Otto Oil Pty Ltd the Grantee Party. The Office of State Revenue has stamped the agreement.

   It is the grantee party’s knowledge through matter WF02/8 that there has been an “extreme difficulty” in obtaining a death certificate for the late Mr George Riley, Applicant on the Nyikina & Mangala, Registered Native Title Claim and therefore it would not be possible to conclude this matter via a State Deed.

   Rubibi (WC99/23)

   An ancillary agreement titled “Native Title and Heritage Protection Agreement” (“Agreement”) dated 20 April 2004, has been executed by the Kimberly Land Council on behalf of the Rubibi (the Second Native Title Party) and Otto Oil Pty Ltd the Grantee Party. The Office of State Revenue has stamped the agreement.

   The grantee party has no knowledge of the status of the execution of a State Deed in respect to this matter.   

5. The registered Native Title Claimants on behalf of the Nyikina & Mangala People are:

Anthony Watson, Daisy Lungunan, David Watson, Del Roe, Elizabeth Riley, George Riley, James Watson, John Watson, Lionel Jumburra, Lucy Marshall, Mary Watson, Maude Ningella, Neil Buckle, Neville Poelina, Patsy Yamboo, Peter Francis, Sammy Ah Choo, Willie Lennard.

1. The registered Native Title Claimants on behalf of the Rubibi People are:

Cecilia Djiagween, Elise Edgar, Felix Edgar, Francis Djiagween, Frank Sebastian, Jack Roe, Joseph Roe, Margaret Robinson, Margaret Wiggan, Michael Corpus, Phillip Corpus, Richard Hunter, Teresa Roe, Teresa Saddler.

1. I convened a Preliminary Conference on 3 September 2004 to ascertain whether a consent determination was to be sought in this matter and, if not, establish how the inquiry was to proceed.  At this hearing the grantee, Government and native title parties’ representatives confirmed that an unconditional consent determination that the act may be done was being sought and agreed to sign and forward to the Tribunal the proposed consent minute.  

2. On 3 September 2004 a copy of the proposed consent minute executed on behalf of the grantee and Government parties were lodged with the Tribunal by facsimile.  A copy of the same consent minute executed on behalf of the native title party was lodged with the Tribunal by facsimile on 6 September 2004.  The said minute was as follows:

“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 Act1993.

2. The Government Party, The Native Title Party and the Grantee Party have 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 to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit  5/97-8 may be done

1. In a related Future Act Determination Application (WF02/7) to which the Nyikina and Mangala People were parties, Mr Irving lodged with the Tribunal Affidavits affirmed by him on 21 October 2003 and 27 February 2004 respectively.  A Certificate issued on 24 December 2003 by the Registrar of Deaths certifying the death on 24 June 2002 of George Riley of 18 Field Street, Derby, Western Australia was also produced in evidence in application WF02/7.  The same Certificate is relevant to these proceedings.  In WF02/7 the contents of Mr Irving’s Affidavits together with the said death certificate satisfied me that Mr George Riley the subject of the said Death Certificate is the same person as George Riley one of the named native title claimants on behalf of the Nyikina & Mangala People (WC99/25) and further as to the decision making procedure of the Nyikina & Mangala People and the authority of the KLC to enter into a Native Title and Heritage Protection Agreement on its behalf with the grantee.  The parties to the present application have consented to these affidavits and the said death certificate being admitted into evidence in this matter.  I have admitted the same and find the death of Mr George Riley to be established.

2. At the Preliminary Conference on 3 September 2004, Mr Irving also confirmed that each of the Native Title Parties understood and consented to the general course of action the KLC has taken on their behalf and in particular to the consent determination sought by the parties and that the KLC was authorised by each to consent on its behalf to the making of that determination.

3. 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 said Consent of the respective parties they represent, (Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50, (22 June 2001) Hon CJ Sumner. The Native Title parties and the State are legally represented in this matter. Having regard to the facts attested by Mr Ian Irving, I am satisfied that the registered Native Title claimants for the Rubibi People and Nyikina & Mangala People understand and consent to the general course of action that the representative body has taken on their behalf, and in particular, to the said consent determination. Being satisfied as to the death on 6 June 2002 of Mr George Riley, one of the registered Native Title Claimants on behalf of the Nyikina & Mangala People, I am satisfied that it is an appropriate for a consent determination to be made in this case.

Determination

1. By Consent the determination of the Tribunal is that the Act, namely the grant of Petroleum Exploration Permit 5/97-8, may be done.

The Hon EM Franklyn QC
Deputy President
20 September 2004