Red Mountain Energy Pty Ltd/ Mr Jack Hill and Others on behalf of the South West Boojarah People; Mrs Minnie Van Leeuwen on behalf of the Harris Family/Western Australia

Case •

[2004] NNTTA 103

•

5 November 2004

NATIONAL NATIVE TITLE TRIBUNAL

Red Mountain Energy Pty Ltd/ Mr Jack Hill and Others on behalf of the South West Boojarah People; Mrs Minnie Van Leeuwen on behalf of the Harris Family/Western Australia, [2004] NNTTA 103 (5 November 2004)

Application No:        WF04/24

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

- and -

IN THE MATTER of an inquiry into a Future Act Determination Application

Red Mountain Energy Pty Ltd (applicant/grantee party)

- and -

Mr Jack Hill and Others on behalf of the South West Boojarah People (WC98/63), (‘the South West Boojarah native title party’)

and

Mrs Minnie Van Leeuwen on behalf of the Harris Family (WC96/41) (‘the Harris Family native title party’)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth

Date:  5 November 2004

Catchwords:    Native title – future acts – application for determination for the grant of drilling reservation and petroleum exploration permits – refusal to sign agreements by one named applicant – claim group as a whole consent to a determination – consent determination that the act may be done with a condition.

Legislation:  Native Title Act 1993 (Cth), ss 35, 38

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner

Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner

Evans v Western Australia (1997) 77 FCR 193

Hearing Dates:                16 September 2004; 22 October 2004.

Solicitor for the

native title party:           Mr Ettienne van Tonder, South West Aboriginal Land and Sea Council

Representatives of the    Mr Rod Wahl, State Solicitor’s Office

Government party         Ms Maryie Platt, Department of Industry and Resources

Solicitor for the

grantee party:                 Mr Chris Humphry, Hunt and Humphry, solicitors

REASONS FOR FUTURE ACT DETERMINATION

  1. On 17 December 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of Drilling Reservation DR1/02-3 (‘the proposed drilling reservation’) under the Petroleum Act 1967 (WA) to Red Mountain Energy Pty Ltd (‘the grantee party’).

  2. The area and location of the proposed drilling reservation is as follows:

  • DR1/02-3 –142.7km2, southwest corner located approximately 1.5 kilometres northwest of Cowaramup.

It is situated in the Shires of Busselton and Augusta-Margaret River and overlaps the South West Boojarah native title claim by 100% and the Harris Family claim by 75.66%.

  1. On 21 April 2004, the Government party gave notice under s 29 of the Act of future acts namely the grant of petroleum exploration permits (‘the proposed permits’) under the Petroleum Act 1967 (WA) to the grantee party as follows:

  • EP1/03-4 – 355.9km2, southwest corner located approximately 3 kilometres northwest of Cowaramup.

  • EP2/03-4 – 462.5km2, commencing within the Augusta townsite and extending east for approximately 16 kilometres along Flinders Bay.

The proposed permits are situated in the Shire of Augusta-Margaret River and overlap the South West Boojarah native title claim by 100% and the Harris Family claim by 6.5% and 5.83% respectively.

  1. The native title parties in respect of these proceedings are:

  • Benjamin Nannup, Franklyn Nannup, Glen Colbung, Glenn Councillor, Ivan Corbett, Jack Hill, Ken Colbung, Kevin Miller, Phillip Prosser, Sam Miller, Barbara Stammner-Corbett, Donna Hill, Teresa Miller and Wendy Williams (the South West Boojarah People (WC98/63)).  (The name of one deceased person still shown on the Register of Native Title Claims has been omitted from the list.) (‘the South West Boojarah native title party’); and

  • Minnie Van Leeuwen (Harris Family (WC96/41)) (‘the Harris Family native title party’).

  1. The Harris Family native title party has executed a State Deed (i.e. a s 31 agreement signed by all three negotiation parties). The Deed was lodged with the Tribunal on 26 July 2004 and I have sighted a copy of it. As a consequence the Harris Family native title party played no active part in these proceedings.

  2. On 8 September 2004, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to Drilling Reservation DR1/02-3. The application was made in the expectation that, despite negotiations undertaken by the parties that resulted in general agreement being reached with the South West Boojarah native title party, one named applicant would refuse to sign any ancillary agreement or State Deed giving effect to that agreement.

  3. Paragraph 10 of  application outlined the steps taken by the parties in reaching general agreement and contingency plans put in place in anticipation of a refusal by the named applicant to sign ancillary agreements or State Deeds as follows:

    ‘… The State of Western Australia gave notice to the native title party and the Applicant of its intention to negotiate in good faith in relation to the doing of the act, which involved the grant of the drilling reservation application, on 17 December 2003.

    Subsequent to 17 December 2003, meetings, discussions, telephone conversations and correspondence occurred amongst the government party (through DoIR), the native title party (through the Aboriginal representative body, South West Aboriginal Land and Sea Council (“SWALSC”)) and the Applicant (through its managing director and solicitors). During July 2004, the representatives of the native title party and Applicant agreed the terms of a heritage protection agreement and an agreement under section 31 of the Native Title Act (“s31 agreement”). The s31 agreement was approved by DoIR.

    On 2 September 2004 SWALSC informed the Applicant’s solicitors that on 2 September 2004 the South West Boojarah working group resolved to approve the heritage protection agreement and the s31 agreement. However, at least one of the South West Boojarah registered native title claimants had previously adopted a stance of refusing to execute agreements under s.31 of the NTA regardless of the wishes of the majority. Accordingly, the working group also resolved that, in the event that any of the South West Boojarah registered native title claimants declined to execute the s31 agreement, they would support an application under s35 of the NTA that drilling reservation 1/2002-2003 should be approved.

    SWALSC also informed the Applicant’s solicitors that, following the meeting of 2 September 2004, SWALSC would consult each registered native title claimant to ascertain their attitude to the heritage protections agreement and the s.31 agreement.’

  1. On 16 September 2004, the Tribunal conducted a preliminary conference in relation to the application.  During this hearing the parties advised that a determination by consent might be sought in this matter, however, this would depend upon the outcome of further consultation with the South West Boojarah native title party.  Mr Ettienne Van Tonder of the South West Aboriginal Land and Sea Council (‘SWALSC’) representing this native title party further advised that this consultation process was necessary to ensure that he had instructions from South West Boojarah native title party to pursue a consent determination.

  2. With the consent of all parties, I adjourned further hearings on this matter until 22 October 2004 to allow time for this consultation to take place.

  3. At the hearing on 22 October 2004, Mr van Tonder confirmed that the consultation had taken place and that on the basis of the initial and follow-up consultations most named applicants had signed the State Deed and he was satisfied that the claim group as a whole had agreed to the grant of Drilling Reservation DR1/02-3 and that he was now instructed by the South West Boojarah native title party as a whole to seek resolution of this matter by consent determination (subject to the terms of the Heritage Protection Agreement).  He confirmed that one named applicant, Mr Kevin Miller had refused as anticipated, to execute any agreement, the wishes of the other named applicants notwithstanding. 

  4. The Tribunal has before it the following evidence which supports a finding that the South West Boojarah native title party as a whole agree to the grant of Drilling Reservation DR1/02-3 and petroleum exploration permits EP 1/03-4 and EP 2/03-4 (see below).

  5. A copy of a Heritage Protection Agreement between the native title party and grantee party covering the proposed drilling reservation and permits which I am advised has been signed by the grantee party and by two named applicants, Mr Jack Hill and Ms Barbara Stammner-Corbett, who Mr van Tonder says had been previously authorised by the claim group as a whole to execute heritage related agreements on their behalf.

  6. A minute of a ‘Consent Determination under section 38 Native Title Act 1993 (Cth)’ which asserts that the Government party has complied with the requirements if s 31(1)(a) of the Act and that the Government party, native title party and grantee party have complied with the requirements of s 31(1)(b) and which contains a draft determination in the following terms to which the representatives of each party has assented:

    ‘The Government Party, the Native Title Parties and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 (Cth) that the grant of drilling reservation 1/02-3 and exploration permits 1/03-4 and 2/03-4 under the Petroleum Act 1967 (WA) may be done subject to the Heritage Protection Agreement between the South West Boojarah Native Title Party, the South West Aboriginal Land and Sea Council and the Grantee Party dated 21 October 2004.’

  7. Minutes of a Meeting of the South West Boojarah Working Party on 2 September 2004 attended by 12 members of the claimant group (including named applicants Mr Jack Hill and Ms Barbara Stammner-Corbett) which contain a minute of a resolution whereby the Working Party instructed all named applicants of the South West Boojarah claim group to sign off on State Deeds in relation to the proposed drilling permit and proposed permits and support any s 35 application to have them granted.

  8. Documents signed by each of Jack Hill, Glen Colbung, Franklyn Nannup, Benjamin Nannup, Barbara Stammner-Corbett, Ivan Corbett, Phillip Prosser, Ken Colbung and Glenn Councillor (ie. 9 of the 14 named applicants) in which they agree to the grant of the proposed drilling reservation and proposed permits, despite any one or more of the name applicants refusal to sign a Heritage Protection Agreement or State Deed and support a s 35 application for a determination permitting their grant.

  9. A State Deed covering the proposed drilling reservation and permits executed by the following named applicants – Benjamin Nannup, Franklyn Nannup, Glen Colbung, Glenn Councillor, Ivan Corbett, Jack Hill, Ken Colbung, Phillip Prosser, Wendy Williams and Barbara Stammner-Corbett (ie. 10 of the 14 named applicants).  At the hearing Mr van Tonder also said that his consultation with Ms Donna Hill (the wife of Jack Hill) had resulted in her agreeing to sign the State Deed but he had not been able to arrange its execution.

  10. During the hearing on 22 October 2004 the grantee’s representative, Mr Chris Humphry, requested that the two additional petroleum exploration permits (EP1/03-4 and EP2/03-4) being sought by the grantee be incorporated into the determination. This request was based on the fact that the negotiations between the native title parties and the grantee had involved all three tenements. These permits had not been incorporated into the original application as the six month period specified in s 35(1)(a) of the Act since the s 29 notice had not then elapsed. Mr Humphry also pointed out that the State Deed signed by the Harris Family native title party referred to these permits in addition to the drilling reservation.

  11. Mr van Tonder confirmed that these petroleum permit applications (EP1/03-4 and EP2/03-4) had been discussed with the South West Boojarah native title party and they are included in the relevant documentation referred to above.  As a result of the further consultation undertaken, Mr van Tonder was satisfied that his instructions in relation to the consent determination application also encompassed these permit applications.

  12. After hearing the other parties I agreed to consider an amended future act determination application to be lodged by the grantee party representative once the six month period had expired.

  13. On 27 October 2004, being a date more than six months after the s 29 notice was given, the grantee party representative submitted the amended application including the proposed permits.

  14. 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 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).

Findings relating to the Harris Family native title party

  1. It is not possible to make a determination by consent without evidence of the view of the Harris Family native title party. I am satisfied that the Harris Family native title party by entering into  a State Deed with all three negotiation parties is aware of the act being applied for and are not opposed to the act being done.

Findings relating to the South West Boojarah native title party

  1. The issues raised by Mr Kevin Miller’s refusal to execute documents giving effect to agreements reached with the South West Boojarah native title party as a whole have been considered by the Tribunal previously (Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner). In this case I was satisfied, on the basis of affidavit and oral evidence presented by the SWALSC, that the claimants not only consented to the act being done but also the terms of the consent determination sought despite Mr Miller’s refusal to execute the necessary documents.

  2. In the present case I am also satisfied by the evidence produced that the native title party as group consent to the determination. The native title party has been represented in this matter throughout by the designated representative Aboriginal/Torres Strait Islander body under the Act (the SWALSC) and solicitors engaged by them. As the designated representative body under the Act, SWALSC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)). The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the SWALSC representatives on whether the appropriate consent has been given by the native title party. In this matter a legal representative from the SWALSC (Mr Ettienne van Tonder) was present during the hearing, has provided an explanation of the steps taken to obtain his client’s consent and confirmed his client’s consent.

  3. As noted at [10] above and after discussion at the hearing between the parties about the terms of the determination the consent determination is to be expressed in terms that the act may be done subject to the Heritage Protection Agreement. I have examined the terms of the Agreement and do not consider it contains any conditions which are beyond the power of the Tribunal to impose (see discussion in Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia, NNTT WF03/24, [2004] NNTTA 1 (16 January 2004), Hon C J Sumner; Albert Little and Others on behalf of the Badimia People/Western Australia/Seaprince Holdings Pty Ltd & Maroubra Pty Ltd, NNTT WF03/15, [2003] NNTTA 108 (24 October 2003), Hon C J Sumner). Accordingly, a determination in the terms sought, being ‘subject to’ the agreement, is appropriate.

Determination

  1. By consent the determination of the Tribunal is that the acts, being the grant of Drilling Reservation DR1/02-3 and Petroleum Exploration Permits EP1/03-4 and EP2/03-4 to Red Mountain Energy Pty Ltd under the Petroleum Act 1967 (WA), may be done subject to the Heritage Protection Agreement between the South West Boojarah native title party, the South West Aboriginal Land and Sea Council and the grantee party dated 21 October 2004.

Hon C J Sumner
Deputy President
5 November 2004

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