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

[2004] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Otto Oil Pty Ltd/State of Western Australia / Nyikina & Mangala People and Rubibbi People [2004] NNTTA 34 (24 May 2004)

Application: WF02/8

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

- and -

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)

- and -

Otto Oil Pty Ltd (Grantee party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION BY CONSENT

Tribunal:                  Deputy President, The Hon. E.M. Franklyn QC
Place:   Perth
Date:   24 May 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

Hearing dates:          20 June 2002; 22 July 2002; 5 August 2002; 14 January 2004; 27 April 2004; 13 May 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 Trevor Creewel, 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 (EP6/97-8) 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 EP6/97-8 before the Tribunal.

[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).

[3] On 29 May 2002, the State 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] 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.

[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.

[6] On 29 May 2002 the State submitted a request for a conference pursuant to s 150 of the Act, that request being said to be the outcome of a mediation meeting held on 22 April 2002. On 4 June 2002 the Hon CJ Sumner was appointed to preside over the conference, and on 11 June 2002, I was appointed to conduct the s 35 inquiry. That the parties wished to resolve this matter by agreement was confirmed at a preliminary conference convened by me on 20 June 2002. The inquiry process was adjourned until 22 July 2002 to enable negotiations to continue. On 9 July 2002 a draft of the directions that would be made if agreement was not achieved was sent to each party.

[7] On 22 July 2002 the parties advised that agreement had been reached but not yet documented.  Adjournment was granted to 5 August 2002 for that to be done.  On 5 August 2002, a further adjournment was sought by the Native Title parties’ representative to enable amendments to a draft of the agreement.  The matter was adjourned by consent to 19 August 2002.

[8] The Listing date set for 19 August 2002 and those subsequently set for 29 August 2002, 19 September 2002, 23 September 2002 and 27 September 2002 were subsequently adjourned with the consent of the parties, each on the basis that agreement on every point and execution of a written ancillary agreement between the Grantee and the Native Title parties was imminent.  It was then agreed that a date for the hearing be set in the week commencing 25 November 2002, the hearing to be held in the absence of advice of the execution of the ancillary agreements by the Grantee party and the Native Title parties, together with a State Deed that the act may be done.  On 13 November 2002, the Tribunal was advised that the Nyikina & Mangala People had reached agreement with the Grantee on an ancillary agreement and that the Grantee had signed a State Deed which was presently with the Native Title parties, but that the Rubibi People had not reached agreement on a “final clause”.  The parties were of the view that a listing hearing should be held.  The hearing was listed for 25 November 2002 but, at the request of the parties, on the basis of anticipated agreement, that date was also vacated and the listing changed to 6 December 2002.

[9] On 26 November, 2003 Mr Ross Reisner of KO, who had been representing that company as representative of the Grantee before the Tribunal and in negotiations with the Native Title parties, advised the Tribunal that he was leaving the company and that a Mr Alan Flavelle of KO would thereafter represent the Grantee.

[10] By letter dated 4 December 2002, the KLC confirmed the execution of an ancillary agreement between KO and the KLC on behalf of the Nyikina & Mangala People and that it was obtaining the signatures of the registered Native Title claimants to a State Deed. It advised that as to the Rubibi People, one clause of an ancillary agreement remained to be negotiated with KO. The letter advised that the KLC anticipated discussing the matter with Mr Flavelle in the near future, agreed to the s 35 hearing listed for 6 December 2002 being adjourned sine die and noted that this did not affect the s 150 conference continuing.

[11] Parallel with the s 35 procedures, the parties were continuing with the s 150 conferences, they being listed in 2002 for 21 June, 5 July, 19 July, 26 July, 8 August, 19 August, 23 August, 19 September, 23 September, 6 December and in 2003 for 22 January, 12 February, 24 February, 28 march, 3 April, 10 April, 9 may, 30 May, 3 July. Some of such dates were vacated in favour of other of such dates.

[12] As the result of inquiry by the Tribunal of the parties as to progress, the Tribunal was informed on 17 June 2003 that they had reached agreement, that it was to be sent in written form by KLC to the Grantee for execution and arrangement of a State Deed by KO and that the Grantee was to then forward the signed documents to Mr Irving of the KLC for execution by the Native Title parties. 

[13] On 17 July 2003 correspondence was received from the (then) Crown Solicitor’s Office advising that one of the registered named applicants from the Nyikina & Mangala People Native Title claimant group, Mr George Riley, had died before negotiations were concluded and that, as there were “extreme difficulties” in obtaining a death certificate for the deceased, it would not be possible to conclude this matter via a State Deed. As a result, the State requested that a consent determination be issued by the Tribunal to give effect to the agreement reached between the parties. The Tribunal agreed to entertain a s 35 application for a consent determination on the basis that the parties would produce evidence and make such submissions as were appropriate.

[14] On 14 January 2004 I convened a hearing to ascertain what progress had been made by the parties. The matter was still the subject of s150 conferences. I had recently been made aware that the ancillary agreements said to have been entered into by the Native Title parties with the grantee had in fact been entered into with KO as principal and that there were commercial negotiations on foot between KO and Otto Oil Pty Ltd. I was informed by the Hon C J Sumner that he was prepared to convene a further s150 conference in the week of 2 February 2004 if the parties so desired but that otherwise he would terminate the same. This advice was passed on by me to the parties with advice that the Grantee for the purposes of the determination was Otto Oil Pty Ltd, which would be the holder of The Permit and, in the native title parties’ interests, in the usual case would need to be a party bound by the ancillary agreements, and that I was not concerned with its private commercial negotiations with KO. The parties agreed to continue the s150 conference. The grantees representative produced a certificate issued by the Registrar of Deaths certifying that Mr George Riley of 18 Field Street, Derby, WA, had died on 24 June 2002 at that address, which, the representative believed to certify the death of Mr George Riley, one of the named registered applicants for the Nyikina and Mangala Native Title Determination. Mr Ian Irving, representing the Native Title Parties, advised that he would make enquiries to confirm that to be the case. This matter was then adjourned to 13 February 2004.

[15] On 9 February I was informed that the s150 conference was still on foot and was to be reconvened on 20 February 2004. At the request of the Hon C J Sumner, I further adjourned the hearing to 27 February 2004. On 24 February I was advised that the s150 conference was further adjourned to 19 March 2004 and subsequently of its adjournment to 2 April, following which I adjourned the s35 inquiry to 27 April 2004.

[16] At a hearing on 27 April 2004 I was advised by the parties that the execution and stamping of ancillary agreements between the grantee Otto Oil Pty Ltd and each of the Native Title parties had been completed. The grantees representative also advised that all the shares in the grantee had been purchased by and transferred to KO. It was agreed by the parties that the agreements previously entered into by the Native Title parties with KO were no longer effective between those parties in respect of The Permit and that the new ancillary agreements with Otto Oil Pty Ltd were on similar terms to the KO agreements. Mr Irving the acting Principal Legal Officer of the KLC confirmed that the KLC had authority to enter into those contracts on behalf of the Native Title parties and to consent to an unconditional consent determination that the “Act be Done ” being the grant of The Permit to the grantee. He undertook to confirm in writing that such was the case.

[17] In a related S35 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 produced in evidence in 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). Mr Irving has lodged an Affidavit in the present application affirmed by him on 11 May 2004 in which he relies on the 2 Affidavits filed in WF02/7 to establish the death of the said George Riley, the said named registered native title claimant on behalf of the Nyikina & Mangala people. I accept the same together with the Certificate of Death in these proceedings as proof of such death. He also confirmed in his Affidavit of 11 May 2004 the execution by Otto Oil Pty Ltd of ancillary agreements with each of the Native Title parties, the same being signed by the KLC with the consent and authority of these parties and that the KLC was also authorised to consent on their respective behalfs to a determination that the Act be done. I accept Mr Irving’s evidence as to these matters.

[18] At a hearing on the 13 May 2004, a minute of consent executed by the KLC on behalf of both native title parties and the State and a minute in identical terms executed by KLC on behalf of the Native Title Parties and Otto Oil Pty Ltd were produced to the Tribunal.  The said minutes were 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  6/97-8 may be done

[19]  Having regard to the Affidavit evidence of Mr Irving, I am satisfied that each of the Native Title Parties understand and consent to the general course of action the KLC has taken on it’s behalf and in particular to the unconditional consent determination.

Determination

[20] By Consent the determination of the Tribunal is that the Act, namely the grant of Petroleum Exploration Permit 6/97-8, may be done.

The Hon EM Franklyn QC
Deputy President
2004