Parna Ngururrpa (Aboriginal Corporation) RNTBC v Backreef Oil Ltd/Net Oil Pty Ltd/Northern Oilfield Services Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Parna Ngururrpa (Aboriginal Corporation) RNTBC v Backreef Oil Ltd/Net Oil Pty Ltd/Northern Oilfield Services Pty Ltd and Another [2016] NNTTA 32 (2 August 2016)

Application No:

WF2016/0004; WF2016/0005; WF2016/0006

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

- and -

IN THE MATTER of an inquiry into future act determination applications

Parna Ngururrpa (Aboriginal Corporation) RNTBC (WCD 2007/004)

(native title party)

- and -

Backreef Oil Ltd/Net Oil Pty Ltd/Northern Oilfield Services Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATIONS

Tribunal:	Member Shurven
Place:	Perth
Date:	2 August 2016

Catchwords:

Native title – future acts – proposed grant of petroleum exploration permits – future act determination applications that the acts must not be done – applications for petroleum exploration permits refused – future act determination applications dismissed

Legislation:

Native Title Act 1993 (Cth) s 148(a)

Cases:

Doyles Creek Mining Pty Ltd v Plains Clan of the Wonnarua People and Wonnarua Traditional Custodians and Another [2014] NNTTA 18 (‘Doyles Creek v Wonnarua’)

Payi Payi on behalf of the Ngururrpa People v the State of Western Australia [2007] FCA 2113 (‘Ngururrpa Determination’)
Pearl Joyce Connelly (Mitakoodi & Mayi People); Sonny Condren & Ors (Kalkadoon People #4)/Queensland/Metex Resources Ltd; Reefway Pty Ltd [2007] NNTTA 35 (‘Connelly v Metex Resources’)

Representatives of the native title party:

Ms Tessa Herrmann, Central Desert Native Title Services Ltd

Representative of the grantee party:

Mr David Archibald, Backreef Oil Ltd

Representatives of the Government party:

Ms Maryie Platt, Department of Mines and Petroleum

Mr Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

The Parna Ngururrpa (Aboriginal Corporation) Registered Native Title Body Corporate (Parna Ngururrpa) holds the native title rights and interests subject of the Federal Court of Australia’s Ngururrpa Determination (WCD 2007/004). On 21 May 2007, the State Government of Western Australia issued notices of their intention to grant three Petroleum Exploration Permits to Backreef Oil Limited, Net Oil Pty Ltd and Northern Oilfield Services Pty Ltd (collectively, the grantee party): Application 7/06-7 EP; Application 8/06-7 EP; and Application 9/06-7 EP (the permits).
The permits each overlap the Parna Ngururrpa determined lands and would constitute future acts under Native Title Act 1993 (Cth) (the Act). On 2 May 2016 Central Desert Services, on behalf of Parna Ngururrpa, lodged a future act determination application for each permit with the National Native Title Tribunal, seeking a determination that the grant of the permits must not be done as per s 35 of the Act.
These applications were accepted and I was appointed by the President of the Tribunal, Raelene Webb QC, as the Member to constitute the Tribunal for the purpose of conducting the future act determination application inquiries.
On 30 May 2016, I met with the representatives of all parties and made directions for the conduct of the inquiries. On 14 June 2016, I issued further directions covering culturally sensitive material in six of the affidavits Parna Ngururrpa intended to submit for the inquiries. Parna Ngururrpa provided extensive submissions and affidavit materials in accordance with those directions. The State and the grantee party were due to file their materials on or by 8 August 2016.
On 19 July 2016, the Tribunal received correspondence from the State’s representative, which reported:
I have now been instructed by the Department of Mines and Petroleum that each of petroleum exploration applications 7/06-7 EP, 8/06-7 EP and 9/06-7 EP has been refused.
Accordingly, the State submitted there are no longer future acts for the purposes of the s 35 future act determination applications, and therefore no matter before the Tribunal requiring determination. The State argued I should be satisfied I am not entitled to deal with the s 35 applications, and should dismiss them all, as permitted by s 148(a) of the Act. Section 148(a) of the Act states a future act determination application may be dismissed, at any stage of an inquiry relating to the application, if the Tribunal is satisfied that it is not entitled to deal with the application.
Noting the decision in Connelly v Metex Resources, I wrote to all parties on 22 July 2016 outlining three possible courses of action under the Act:
1.      The applicant for the future act determination applications can request the applications be dismissed (s 149);
2.      The State can withdraw the s 29 notice of those future acts; or
3.      The Tribunal can issue a dismissal determination (s 148(a)).
I requested parties make any submissions regarding these possible courses of action by 29 July 2016. The grantee party made no submission. Parna Ngururrpa made a submission on 29 July 2016.
Parna Ngururrpa outlined that:
On 21 July 2016 the Native Title Party [Parna Ngururrpa] wrote to the Government Party requesting the Government Party formally withdraw the Notices on the basis that:
(a)this would (noting [26] of [Doyles Creek v Wonnarua]) reduce the likelihood of the Native Title Party needing to make further submissions to the Tribunal regarding the future conduct of the Application, in circumstances where the Native Title Party had already expended substantial resources complying with the Directions; and
(b)given the difficult and protracted history of the negotiations and dealings surrounding the Permits, formal confirmation from the Department of Mines and Petroleum that the Notices had been withdrawn would be of considerable reassurance to the Native Title Party.
Parna Ngururrpa further outlined that the State had replied to them on 26 July 2016, indicating ‘the State did not intend to withdraw the notices’.
Having considered all submissions, I am satisfied that: I am not entitled to deal with the applications for a future act determination over 7/06-7 EP, 8/06-7 EP, and 9/06-7 EP; there is no basis upon which an inquiry can proceed; and the application for a future act determination over each of these petroleum permits should be dismissed.

Determination

The future act determination application applications WF2016/0004, WF2016/0005 and WF2016/0006 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
2 August 2016

The Parna Ngururrpa (Aboriginal Corporation) RNTBC, the native title party, filed applications with the National Native Title Tribunal against Backreef Oil Ltd, Net Oil Pty Ltd, and Northern Oilfield Services Pty Ltd, the grantee party, as well as the State of Western Australia, the government party, to seek a future act determination that certain petroleum exploration permits must not be granted. The permits, issued by the State, overlapped with the Parna Ngururrpa's determined lands, and therefore constituted future acts under the Native Title Act 1993 (Cth). The State subsequently refused the petroleum exploration permits, and thus, the applications for future act determination became moot.

The primary legal issue for the tribunal was whether it had jurisdiction to proceed with the future act determination applications, given that the State had refused the petroleum exploration permits. The tribunal considered the possibility of dismissing the applications under section 148(a) of the Act, or whether the State could withdraw the notices of intention to grant the permits. The tribunal also considered the submissions from the Parna Ngururrpa, who had requested the State to formally withdraw the notices to avoid any further need for submissions to the tribunal.

The tribunal dismissed the future act determination applications as it found that it was not entitled to deal with the applications. The tribunal noted that the State had refused the petroleum exploration permits, and thus, the future act determination applications had become moot. The tribunal also considered the submissions from the Parna Ngururrpa, who had requested the State to formally withdraw the notices, but the State had declined to do so. The tribunal was satisfied that there was no basis upon which an inquiry could proceed, and therefore dismissed the applications for future act determination over each of the petroleum permits.

The future act determination application applications WF2016/0004, WF2016/0005, and WF2016/0006 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established