Raymond Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited
[2010] NNTTA 30
•4 March 2010
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited, [2010] NNTTA 30 (4 March 2010)
Application No: WF09/27
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
The State of Western Australia (Applicant/Government party)
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Raymond Dann & Others on behalf of the Amangu People (WC04/2) (native title party)
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Warrego Energy Limited (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 4 March 2010
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit – no contentions or evidence submitted by the native title party – determination that the act may be done
Legislation:Native Title Act1993 (Cth), ss 24MD, 29, 31, 35, 36(2), 38, 39, 42, 146, 150, 151, 233
Petroleum and Geothermal Energy Resources Act 1967 (WA), ss 38, 39, 43, 95
Aboriginal Heritage Act 1972 (WA)
Cases:Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, NNTT QF05/3, [2006] NNTTA 3 (30 January 2006), John Sosso
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited, NNTT WF06/21, [2006] NNTTA 153 (24 November 2006), John Sosso
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006), Hon C J Sumner
Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11, [2004] NNTTA 108 (1 December 2004), Hon C J Sumner
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Solicitor for the
Government party: Mr Matthew Pudovskis, State Solicitor’s Office
Representative of the
Government party:Ms Maryie Platt, Department of Mines and Petroleum
Solicitors for the Mr Stephen Hegedus and Ms Louahna Lloyd
native title party: Yamatji Marlpa Aboriginal Corporation
Representative of the
native title party: Mr Daniel Jacobs, Yamatji Marlpa Aboriginal Corporation
Representative of the
grantee party: Ms Pamela Potger, Warrego Energy Pty Ltd
REASONS FOR FUTURE ACT DETERMINATION
Introduction
On 12 March 2008, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act namely the grant of petroleum exploration permit 25/07-8 EP (‘the proposed permit’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Warrego Energy (Warrego Energy Limited) (‘the grantee party’). The proposed permit comprises an area of 224 square kilometres within the Perth Basin in the Shires of Three Springs, Mingenew and Irwin and entirely overlaps the registered claim of the Amangu People (WC04/2 – registered from 3 March 2005).
The native title party in respect of these proceedings is Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rod Little, Clarrie Cameron, Rob Ronan, Betty Forsyth, Donna Ronan and name withheld for cultural reasons on behalf of the Amangu People (‘the native title party’).
On 27 November 2009, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that negotiating parties had been unable to reach agreement of the kind mentioned in para 31(1)(b) of the Act.
Specifically, the application (para 10) outlined the history of negotiations and the applicant’s reasons for requesting determination by the Tribunal:
‘Since March 2008, Warrego Energy Pty Ltd and Warrego Energy Ltd (UK), Department of Mines and Petroleum (DMP) and the Amangu (WAD6002/04) represented by the Yamatji Land and Sea Council have been negotiating an agreement for the grant of petroleum exploration permit application 25/07-8 (25/07-8 EP).
These negotiations progressed to the point of “in-principle” agreement being reached between the parties in March/April 2009 and the detailed terms of the documentation to implement the “in-principle” agreement were subsequently finalised by June 2009. Thereafter all that remained was for the parties to conclude matters through the execution of both a commercial agreement and State Deed.
The Amangu is represented by nine Applicants (and one deceased Applicant). Each of the living Applicants is required to execute the State Deed in order that the exploration title can be validly granted under the Petroleum and Geothermal Energy Resources Act 1967.
DMP has been advised that following finalisation of the detailed terms of the “in-principle” agreement between the parties, there was a breakdown in relations between the Applicants and their representative YLSC. DMP understands that the Applicants are consequently refusing to execute both the commercial agreement and State Deed for 25/07-8 EP.
Moreover, at this time all pathways for the resolution of this matter have been exhausted, which has placed the commercial viability of this project in jeopardy.’
I accept the facts set out in paragraph 10 of the application. Accompanying the application was a letter requesting, pursuant to s 150 of the Act, that conferences be held to attempt to resolve matters relating to the inquiry. A conference was convened by a member and an officer of the Tribunal in Geraldton on 15 December 2009, but no agreement pursuant to s 31(1)(b) of the Act could be reached.
On 11 December 2009, the Tribunal set Directions for resolution of the issue of whether the Government and grantee parties had negotiated in good faith, as well as directions for the conduct of the substantive inquiry. On 16 December 2009, the native title party’s legal representative at the time, Mr Stephen Hegedus, advised the Tribunal that the native title party would not challenge that the Government party and grantee party had not negotiated in good faith with the native title party (ss 31(1)(b) and 36(2)) and the Tribunal has decided it has power to conduct the inquiry and make a determination.
The Government party and grantee party lodged their statements of contentions and evidence on 18 and 19 January 2010 respectively.
On 4 February 2010, Ms Louahna Lloyd, the legal representative for the native title party at the time, notified the Tribunal in writing that the Yamatji Marlpa Aboriginal Corporation ‘is unable to get instructions to act’ and ‘are therefore not in a position to file contentions or make submissions in relation to Warrego Energy’s application for a consent determination in relation to its Petroleum Exploration Permit.’
Direction six of the Directions made 11 December 2009 required the native title party to provide its contentions and evidence on or before 19 February 2010 and Directions eight to ten dealt with the inspection of documents conferring with a view to possible agreement and setting a date for a listing hearing and hearing of the matter (set for the week of 8 March 2010).
On 5 February 2010, the Tribunal wrote to all parties seeking submissions on its intention to proceed to make a determination based on the contentions and evidence which had been submitted by parties while noting the native title party would not be providing any contentions or evidence. The Tribunal advised that as a consequence of the native title party’s advice it would not require compliance with Directions six through ten and would proceed to make a determination on the papers, without the need for a hearing (s 151(2)(b)). Responses from the Government and grantee party supporting the Tribunal’s proposal were provided on 8 February 2010. No submissions were forthcoming from the native title party. I am satisfied that the matter can be adequately determined in this way.
The Tribunal has relied on the principles involved in making a determination in the absence of evidence from the native title party enunciated in a number of future act determinations including:
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, NNTT QF05/3, [2006] NNTTA 3 (30 January 2006), John Sosso at [15]-[17] (‘Gugu Badhun’); and
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2006] NNTTA 19 (28 February 2006), Hon C J Sumner at [7]-[10] (‘Griffin Coal’).
Section 38 of the Act sets out the types of determination that can be made, being a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out be reference to the amount of profit made, income derived or things produced by the grantee party (s 38(2)). In making its determination, the Tribunal ‘must’ take into account certain criteria set out in s 39. Despite the cost and inconvenience to the other parties and the Tribunal in a situation where the native title party decides not to participate in the proceedings, I am of the view that the provisions impose an obligation on the Tribunal to give proper consideration to the factors in s 39 and that a future act determination cannot be made in a more summary way. However, it is self-evident that without the benefit of contentions and evidence from the native title party, it is likely that a determination will be made that the act may be done. Proper consideration of the criteria in s 39 will almost certainly require evidence of which only the native title party is aware, about the effect of the proposed future act on their enjoyment of the registered native title rights and interests (s 39(1)(a)(i)), sites of particular significance (s 39(1)(a)(v)) and other criteria. It is also impossible to take account of the interests, proposals, opinions or wishes of the native title party (s 39(1)(b)) if there is no evidence of them.
The Tribunal has previously considered the nature of a future act determination inquiry and its approach to evidence (see Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’) at 154-163). The Tribunal must act on the basis of relevant and probative evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence applies, which means that parties will produce evidence to support their contentions, particularly where the facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence, the Tribunal is normally entitled to proceed to make a determination without it (Gugu Badhun at [17]).
In this matter the native title party has been represented throughout by the representative body for the Geraldton region, the Yamatji Marlpa Aboriginal Corporation. The representative body is fully aware of the consequences of non-participation and Ms Lloyd has advised that she has been unable to obtain specific instructions from her clients and is therefore not in a position to further act with respect to this matter. In these circumstances the Tribunal has fulfilled its statutory obligations under the Act by giving the native title party an opportunity to provide contentions and evidence, and if that opportunity is not taken up, proceeding to make a determination on the papers.
Government party’s evidence
The Government party proposes to grant petroleum exploration permit 25/07-8 EP to the grantee party under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (‘Petroleum Act’), the term for such a permit being six years with the right of renewal for a further five years, in accordance with s 39 of that Act.
Government party documentation establishes the following underlying tenure on the proposed permit:
Freehold (64.8 per cent overlap);
Unallocated Crown Land (31.2 per cent overlap);
Road reserves (less than 1.5 per cent overlap);
Conditional Purchase Lease 347/18244 (1 per cent overlap);
Crown Reserve 10876 for the purpose of a stock route (Reserve 10876) (0.4 per cent overlap); and
Crown Reserve 34101 for the purpose of a Country Automatic Exchange Site (Reserve 34104) (less than 0.1 per cent overlap).
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed permit. Tribunal mapping indicates the nearest Aboriginal community as Bundy Bunna some fifty kilometres north easterly of the north-eastern corner of the proposed permit.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals there are no sites registered under the Aboriginal Heritage Act1972 (WA) (‘AHA’) overlapping the area of the proposed permit.
Three pending exploration licences under the Mining Act 1978 (WA) partially overlap the proposed permit and one granted geothermal exploration permit (GEP28) under the Petroleum Act overlaps the area at 50 per cent. The Tribunal is unaware of any current mining activity in the area of the proposed permit.
The Petroleum Act entitles the grantee party to exercise the rights set out in s 38 of that Act subject to conditions that the Minister may impose under s 43. The entitlements, regulations, conditions and endorsements applicable to petroleum exploration permits have previously been discussed in Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11, [2004] NNTTA 108 (1 December 2004), Hon C J Sumner at [21]-[23] and are also applicable in this matter. The Government party says it will provide the grantee party with copies of the DIA publication ‘Consulting Citizens: Engaging with Aboriginal Western Australians’ and Department of Mines and Petroleum publications relating to environmental management such as the ‘Petroleum Guidelines: Environmental Assessment Processes for Petroleum Activities in Western Australia’ and ‘Management of Declared Rare Flora for Onshore Petroleum and Mineral Activities’.
Section 95 of the Petroleum Act empowers the Minister to give directions to a grantee party as to any matter with respect to which regulations may be made. A direction requiring compliance with the ‘Schedule of Onshore Petroleum Exploration and Production Requirements 1991’, which contains detailed directions about the manner in which exploration is to be carried out, including environmental protection measures, will be made. Additional directions applicable to the proposed permit include prohibition on the workplace use of asbestos and compliance with the ‘Schedule of General Requirements for Occupational Health and Safety 1993’. Compliance with directions is mandatory.
Government party documentary evidence, numbered GVP1 to GVP30, includes land tenure maps and other supporting evidence pertaining to the underlying tenure of the proposed permit, reports, articles and other such documents relating to the prospectivity and economic significance of the area the subject of the proposed permit, Standard Ministerial directions relating to exploration, production, occupational health and safety and workplace use of asbestos, petroleum exploration and production requirements, documentation regarding Aboriginal heritage and environmental guidelines, Government Gazette notices specific to the underlying tenure of the proposed permit and other supporting documentation.
The grantee party’s evidence
The evidence of the grantee party includes the following documents numbered GP1 to GP11:
Tight gas briefing paper dated 30 January 2009;
Overview of timeline and events;
Amangu confidential briefing paper – West Erregulla dated 12 May 2008;
Warrego briefing note dated 22 October 2009;
Warrego confidential proposal to Amangu dated 29 January 2009;
Email exchanges between representatives of the grantee and native title parties dated 23 June 2009 and 30 July 2009;
Copy of the Heritage Protection Agreement for petroleum exploration permit 25/07-8 between Warrego Energy Limited, Warrego Energy Pty Ltd and Amangu People, signed by the grantee party;
Copy of Deed for grant of Petroleum Title 25/07-8 EP, signed by the grantee party;
Warrego Energy West Erregulla Overview of Exploration and Development Plan, dated October 2008; and
Document titled ‘Point 20 impact on Grantee Party Warrego Energy’.
The area of the proposed permit is located in the North Perth Basin and includes the West Erregulla prospect which was discovered in 1990, released for competitive bidding in November 2007 and provisionally awarded to the grantee party in March 2008.
West Erregulla is identified by the Government party as a proven prospect which has the potential to be the first ‘tight gas’ operation to supply the Western Australian domestic market. ‘Tight gas’ is the term used to describe natural gas found in reservoirs with low porosity and low permeability and is one of a number of ‘unconventional’ natural gas sources which are more difficult, and less economically sound to extract.
The grantee party proposes to locate and develop natural gas that is believed to be some four kilometres underground. The project will commence with investigative field work and development of an exploration well. If successful, further wells will be drilled and a gas plant and pipeline built to carry the gas to the Dampier to Perth gas line. According to the grantee party’s ‘West Erregulla Overview of Exploration and Development Plan’ dated October 2008 (GP10), the exploration and development phase is expected to take two years and the operating phase approximately ten to fifteen years. At the conclusion of the project, the wells and production facilities will be removed and the pipeline will remain buried.
In its confidential briefing paper to the native title party dated 12 May 2008 (GP3), the grantee party proposes to adopt a four phased approach to the development of the natural gas which includes an exploration phase, field development planning phase, production phase and decommissioning phase. It is conceded by the Government party (GVP contentions para 69) that a petroleum production licence will be required at the appropriate time when full production is to proceed. The right to negotiate provisions of the Act will apply to the grant of a production licence.
The minimum committed work programme for the exploration phase is scheduled to be conducted over three years according to the confidential briefing paper to the Amangu People dated May 2008. The first year will consist of core testing followed by petrophysics and seismic studies if core testing proves encouraging. The grantee party says that testing and analysis are laboratory and office based and will have no implications on the land or its occupants.
Principal activities during the second year of exploration are intended to encompass the design of a seismic acquisition programme, acquiring and interpreting additional seismic data which will be blended with the data of the first year to generate well targets, and the design and plan of a well to be drilled in the third year. The proposed activities for the second year involve desktop work and the conduct of seismic surveys which will involve access to the land using specially designed trucks. The grantee party does not consider this work should impact the land adversely and that all relevant policies and procedures will be followed.
The cost and risk will increase during the third year of the exploration phase if drilling occurs. Provided the first well is successful, the grantee party says a second well will be drilled which will be tested. All accumulated data will then inform the preparation of a full field development plan and classification of reserves. Proposed activities undertaken during the third year of exploration include a site survey, preparation and equipment mobilisation, drilling, well completion and test, well suspension and demobilisation.
Prior to drilling, the grantee party will be required to access the land to prepare a clear and stable site to contain the apparatus of drilling and managing a well. Most equipment will be contained on the site in shipping containers and a mobile camp will also be established to accommodate drilling crew, field service hands and various analysts and testing equipment. An access track may need to be constructed. While planning and surveying will need to be conducted some months ahead of the mobilisation date, the grantee party anticipates site preparation and mobilisation will not last more than a few weeks. Each well is expected to take between two and three weeks to drill and complete followed by a well test lasting around three to five days.
The grantee party anticipates that once drilling is underway, a measure of localised intrusion is inevitable, but in contrast to mining operations, the area involved will be small and site disturbance minimal. The grantee party says that for the most part, drilling and associated activities will produce limited noise, fumes and dust and that the planned activities do not involve explosives, diggers, earth moving equipment, trains, smelting, processing or other industrial plants, dust or regular convoys of heavy vehicles in and out of the site.
The evidence and contentions of the grantee party draw to the Tribunal’s attention the critical timeframe for operations to commence so as to enable the grantee party to meet the market demand for gas. The grantee party says it has been ‘manifestly impacted through the drawn out negotiation process and as a consequence, has missed opportunities to secure agreements with potential clients.’ (GP contentions para 20).
Legal principles
I rely on the principles enunciated in the following Tribunal future act determinations:
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (‘Koara 1’);
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (‘Evans’). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (‘Koara No. 2’) - Tribunal determination following the successful appeal in Evans;
Waljen; and
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’).
Section 39 lists the criteria for making such a determination:
(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
For the purposes of the right to negotiate provisions of the Act, determined, claimed and registered native title rights and interests are treated as being on the same footing. Claimed and registered native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (see Waljen at 166-167 and WMC/Evans at 339-341). In other words a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole claim area just by virtue of their registration. There is no evidence from the native title party as to past, current or potential exercise or enjoyment of native title rights and interests in the area of land the subject of the proposed permit. I am therefore unable to make a fully informed finding on how their registered native title rights and interests may be affected by the doing of the future act.
Despite this situation I can take account of some other factors relating to the nature of native title rights and interests which may exist. Documents provided by the Government party set out in detail the underlying land tenure affecting the area of land the subject of the proposed permit, and its contentions as to the effect of that tenure on the existence of native title. As previously discussed at [16] and [19], the land tenure the subject of the proposed permit consists primarily of freehold with the remaining approximately 30 per cent, less 3 per cent for various reserves and a conditional purchase leave, being unallocated Crown land. There is no mining activity in the area of the proposed permit however three pending exploration licences partially overlap the subject area. One granted geothermal exploration permit overlaps the proposed permit at 50 per cent.
The Government party estimates that native title has been completely extinguished over approximately 67.3 per cent of the area the subject of the proposed permit due to freehold tenure, various road reserves, a Conditional Purchase Lease and Reserve 34104 for the purpose of a Country Automatic Exchange Site, which are all classified as previous exclusive possession acts. The Government party also contends that native title has been partially extinguished over a further 0.4 per cent due to the creation of Reserve 10876 gazetted for the purpose of a stock route. The native title determination application specifically excludes land and waters affected by Category A and B past and intermediate period acts, previous exclusive possession acts and ‘areas in relation to which native title rights and interests have otherwise been wholly extinguished.’ In short, freehold land, including roads, fall outside the claim area of the native title party (Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Limited, NNTT WF06/21, [2006] NNTTA 153 (24 November 2006), John Sosso at [76]). I accept the Government party’s evidence. As a consequence, approximately two-thirds of the area of the proposed permit cannot be claimed as native title, meaning that there is no future act with respect to that area as the proposed activities would not affect native title (s 233).
An exclusive claim to native title potentially exists with respect to the portion of the proposed permit that covers unallocated Crown land. The Government party says that it is unaware whether native title may have been extinguished over any of the area of unallocated Crown land as it has not analysed any historical tenures over that area. Any native title determined to exist (exclusive or otherwise) in this portion will not be extinguished by the grant of the proposed permit (s 24MD(3)(a)).
There is no evidence upon which to base a finding that the enjoyment of the native title party’s registered native title rights and interests will be affected by the petroleum exploration activities proposed. The proposed activities, described above, will cause some ground disturbance but this will be for a limited time and in limited places in the context of the large area of the proposed permit area. Some of the activity will be over areas where no native title rights and interests exist.
Section 39(1)(a)(ii) – way of life, culture and traditions
There is no evidence of the effect of the proposed permit on this factor.
Section 39(1)(a)(iii) – development of social, cultural and economic structures
The grantee party alludes to specific training, education and social benefits accruing or available to members of the native title party. The scope and potential for these benefits is reflected in the grantee party’s confidential proposal provided to the native title party dated 29 January 2009 (GP5). The Tribunal has held that any positive effect of a future act can be taken into account (Waljen at 170) and this issue is dealt with below in relation to the economic and other significance of the act (s 39(1)(c)). In the absence of agreement between the grantee party and native title party it cannot be said with certainty that the benefits will now be available to the native title party.
There is no evidence of any economic, cultural and economic structures of the native title party which could be affected in an adverse way.
Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies
There is no evidence of the native title party having access to or carrying out any rites, ceremonies or other activities of cultural significance on the land the subject of the proposed permit. In any event, the grantee party’s work programme provided in its confidential briefing paper to the native title party (GP3), indicates that exploration work on the ground will be limited in time and to small areas of the proposed permit during certain phases of its operations. The exploration activity would therefore have little impact on the freedom of the native title party to continue existing access and activities even if there were evidence relating to them. The grantee party has also addressed the issue of access in the heritage protection agreement executed by the grantee party but unsigned by the native title party (clause 7.1), noting that the native title party will continue to have access to all areas except where that access would interfere with or interrupt petroleum operations or for safety and security requirements. Despite the fact that there is now no agreement in place, having not been formally executed by the native title party, the grantee party has signed the ancillary agreement and State Deed and has tendered this as evidence which is reflective of its good intentions.
The grant of the proposed permit, unlike that of a mining lease, does not confer on the grantee party the right of exclusive possession to the area the subject of the proposed permit.
Section 39(1)(a)(v) – sites of particular significance
No evidence has been provided by the native title party of any sites of particular significance to the native title party in accordance with their traditions. A relevant site is one of special or more than ordinary significance to the native title claimants (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21 at 34-35). The fact that an Aboriginal site exists within an area of a registered claim does not necessarily lead to a conclusion that it is a site of particular significance to a native title party in accordance with their traditions.
The Government party tendered a letter written by the native title party to the former Department of Mines and Petroleum dated 16 June 2007, indicating that a search of the Department of Indigenous Affairs (‘DIA’) Site Register revealed ten registered sites in the area of the proposed permit (GVP8 of the Government party’s evidence). The grantee party was also advised as to the presence of the ten registered sites but says that despite diligent searches of available registers and requests for clarification, it has been unable to identify the relevant sites (GP contentions para 13). The Government party has provided documentation from the DIA Site Register which indicates that there are no registered sites within the coordinates of the proposed permit. There is no evidence before me to contradict these findings. I accept that the Sites Register is not an exhaustive list of all Aboriginal sites in the area.
The Tribunal has on numerous occasions considered the protective provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen (at 209-211) and Griffin Coal at [32]-[34] on this topic. I can see no reason why the protective regimes under the AHA and the presumption of regularity should not be sufficient to ensure that there is unlikely to be interference with any sites of particular significance which may exist, particularly given that there is no evidence of such sites within the proposed permit area.
The grantee party has given an undertaking ‘to conduct heritage surveys with respect to any part of PEP25/07-8 potentially impacted by operations’ (GP Contentions para 13). I have no reason to believe that the grantee party will not comply with its obligations under the AHA and take whatever action is necessary to avoid interference with sites of particular significance to the native title party in accordance with their traditions. This is further highlighted in the heritage protection agreement and attached schedule entitled ‘Aboriginal Heritage Protocol’ which has been executed by the grantee party
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters
There is no evidence of any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the area of land the subject of the proposed permit except that contained in the in principle agreement for the future act to be done subject to some conditions relating to, among other things, heritage protection and compensation.
Section 39(1)(c) – economic or other significance
Both the Government party and grantee party have provided information regarding the economic benefits to the community. The Government party contends that the grant of the proposed permit has the ‘potential to be extremely significant’ (GVP contentions para 65) to the West Australian economy and to a lesser extent the local area.
The Government party has provided a supporting document entitled ‘Economic Significance of the West Erregulla Prospect’, prepared by the Department of Mines and Petroleum, which summarises the importance of tight gas associated with the West Erregulla Prospect. According to the documentation, unconventional energy resources like tight gas have the potential to ease the pressure on gas supply, meet the State’s energy needs and provide an opportunity to diversify energy sources. Preliminary research suggests the West Erregulla Prospect could contain enough gas to power the State’s gas demand for more than one year.
The Government party contends that the grant of the proposed permit, as a necessary precursor to the grant of a petroleum production licence, is expected to lead to the development of a new tight gas industry and address the anticipated shortage of gas available to the state of Western Australia (GVP contentions para 69). The Government party says that the importance of the development of tight gas is evidenced by the State’s decision in July 2009 to lower royalty rates for tight gas from ten to five per cent.
The Government party says the grantee party has committed to spend some $44.3 million over the course of the first five years alone of the proposed permit which will contribute to the State and local economies (GVP contentions para 70). The Government party says new employment opportunities will be created which are thought to be higher than for some other conventional gas projects due to the labour-intensive nature of developing tight gas. The grantee party contends that in addition to benefits to the State economy, there will be specific educational, vocational training and social benefits accruing or available to members of the native title party, together with the potential for cultural exchange and enrichment (GP contentions para 17). This is reflected in the grantee party’s confidential proposal provided to the native title party dated 29 January 2009. As previously noted at [42], there is no binding agreement in place between the parties, however I acknowledge the fact that the grantee party has executed the ancillary agreement and State Deed which is reflective of its intentions towards the native title party. Further benefits, the grantee party says, will accrue through the introduction and development of new techniques and technologies for the exploration of onshore tight gas and the attraction of external tight gas developers to the region.
I accept that the evidence supports a finding that the grant of the proposed permit will result in these beneficial consequences.
Section 39(1)(e) – public interest
The Government party identifies the grant of the proposed permit as a prerequisite for the development of the gas field which ‘may play a crucial role in alleviating a potential domestic gas shortage in the near future’ (GVP contentions para 71). The Government party considers the development of the gas field will mean the development of an entirely new energy industry in Western Australia with the potential to diversify the economy and provide new employment opportunities.
As with mining exploration, the public interest is served by the ongoing grant of petroleum exploration titles which are necessary to maintain and develop petroleum exploration (Evans at 214-215 and Waljen at 215-216). The public interest is served by the grant of the proposed permit.
Section 39(1)(f) – any other relevant matter
Both the Government and grantee parties have identified the effect on the natural environment as a potential issue for consideration in this matter. The Tribunal is entitled to have regard to any environmental assessment and controls imposed that may assist to ameliorate the effect of the future act on some of the factors in s 39(1)(a) (Griffin Coal at [39]). Due to the lack of evidence from the native title party, it is impossible to consider the environmental controls as they relate to the factors in s 39(1)(a) in any specific way. Nevertheless, as with mining operations, I accept that operations conducted under the proposed permit will be subject to the Government party’s overall environmental management regime described previously by the Tribunal (see for example Waljen at 212-214 and Koara No. 2 at 24-27) and that there is a requirement for the grantee party to submit an environmental management plan to the State prior to conducting operations relating to petroleum, as identified in the document entitled ‘Environmental Assessment Process for Petroleum Activities in Western Australia’ (page 15) identified as GVP16 of the Government party’s evidence.
I have referred above to the other controls placed on the exercise of rights under a petroleum exploration permit. There is no basis to suggest that the grantee party will not behave in a regular and proper manner and adhere to the directions or conditions placed on the grant. I can have regard to these controls and the environmental protection regime generally in ameliorating to some extent the effect of the future act on some of the s 39(1)(a) factors.
The Government party says the Tribunal should also have regard to the in principle agreement reached between the parties in June 2009. The grantee party has provided a copy of an email from Ms Lloyd, solicitor for the native title party at the relevant time, to representatives of the grantee party dated 30 July 2009 (GP7), advising that the
‘Amangu Working Group at their meeting on 17 July passed a resolution endorsing the Warrego agreement and state deed. We expect that following some other Amangu meetings from 12 to 14 August, we will be able to make arrangements for the signing of the agreement. Unfortunately we won’t be able to confirm dates for the signing until after 14 August.’
For reasons not entirely clear on the face of the evidence, it appears an internal claim group split has prevented execution of the appropriate documentation required by the Government party to facilitate the grant of the proposed permit. In my view the in principle agreement is a relevant factor as it demonstrates that the native title party is not opposed to the grant of the proposed permit (see also s 39(4) of the Act and Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182 at 189 [28], 190 [29]-[30]).
The contentions of the grantee party point to potential detrimental impacts as a result of delays from drawn out negotiations which I am entitled to take into account. The grantee party says it has been ‘manifestly impacted’ by the drawn out negotiations and has consequently missed opportunities to secure agreements with potential clients and, with each day that a resolution is not forthcoming, the market demand for gas is contracting (GP contentions para 20).
In the absence of evidence from the native title party to contradict the contentions of the grantee and Government parties with respect to the native title party’s failure to execute the Heritage Protection Agreement and State Deed, I am satisfied that the grantee party has taken all steps necessary to secure agreement of the native title party to the doing of the act, and that through no fault of its own, has had to rely on arbitration as a means to resolve the matter in a timely manner.
Section 39(2) – existing non native title rights and interests
For the reasons already given, I have had regard to the existing non native title rights and interests which will already have had an adverse impact on the enjoyment of native title and other matters dealt with in s 39(1)(a) through partial or total extinguishment of native title rights and interests within the area of the proposed permit.
Conditions
There is no evidence to justify the imposition of any conditions on the determination. In particular, there is no evidence to justify a condition for a bank guarantee (s 42(5)) or an amount of money to be paid into trust (s 42(5B)) on account of any future claim for compensation. Any right to claim compensation for the affect of this future act on native title rights and interests could be pursued under the Act or applicable State legislation if the native title party is successful in obtaining a determination of native title.
Conclusion
The task of the Tribunal in making a determination is a discretionary one which involves weighing the various factors in s 39 based on evidence produced (Waljen at 165-166). Apart from the in principle agreement, I have no evidence from the native title party with respect to any matters to be considered pursuant to s 39 of the Act. In this case it has been impossible to properly balance the various interests, meaning that this exercise has only involved an assessment of evidence from the Government and grantee parties. Nevertheless, I am satisfied given the nature of the activities to be undertaken, the existing non-native title rights and interests, the regulatory regime relating to Aboriginal sites, the proposed and potential economic significance to the local, state and national economies and the public interest that the grant of the proposed permit can proceed.
Determination
The determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 25/07-8 EP to Warrego Energy Limited, may be done.
Hon C J Sumner
Deputy President
4 March 2010
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