The State of Western Australia/ Naaguja Peoples; Amangu People; Mullewa Wadjari Community/ Westralian Gas and Power Pty Ltd
[2008] NNTTA 74
•17 June 2008
NATIONAL NATIVE TITLE TRIBUNAL
The State of Western Australia/ Naaguja Peoples; Amangu People; Mullewa Wadjari Community/ Westralian Gas and Power Pty Ltd, [2008] NNTTA 74 (17 June 2008)
Application No: WF08/20
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
The State of Western Australia (Government party/Applicant)
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Naaguja Peoples (WC97/73) (Naaguja native title party)
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Amangu People (WC04/2) (Amangu native title party)
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Mullewa Wadjari Community (WC96/93) (Mullewa Wadjari native title party)
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Westralian Gas and Power Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 17 June 2008
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit – State Deed fully executed in respect of two native title parties – one named applicant for third native title party mentally incapacitated – ancillary agreement entered into – Naaguja native title party as a whole consent to the determination – determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 41A
Petroleum Act 1967 (WA)
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner
Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia/Victoria Diamond Exploration Pty Ltd/Grange Court Pty Ltd, WF04/7 [2004] NNTTA 38 (10 June 2004), Hon E M Franklyn
Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia, WF04/21 [2004] NNTTA 88 (21 September 2004), Hon E M Franklyn
Hearing date: 26 May 2008
Counsel for the
native title party: Ms Toby Jones, Yamatji Land and Sea Council
Representative of the
grantee party: Mr Chris Crookes, Westralian Gas and Power Limited
Representatives of the Ms Maryie Platt, Department of Industry and Resources
Government party: Ms Rosie Emms, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 29 March 2006, 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 a Petroleum Exploration Permit EP 3/05-6 (‘the proposed title’) under the Petroleum Act 1967 (WA) to Westralian Gas and Power Limited (‘the grantee party’).
The proposed title covers an area of some 2481.8 square kilometres and comprises 33 blocks in the Perth Basin, commencing approximately 35 kilometres east of Geraldton and 10 kilometres west of Mullewa and located in the Shires of Mullewa, Irwin, Greenough and Chapman Valley. The registered native title claims of the Mullewa Wadjari Community (WC96/93, registered from 19 August 1996) and the Amangu People (WC04/2, registered from 3 March 2005) each entirely overlap the proposed title while the registered claim of the Naaguja Peoples (WC97/73, registered from 18 September 1997) overlaps the proposed title by 57.76 percent.
The native title parties with respect to these proceedings are as follows:
· Leedham Papertalk, Malcolm Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones and Raymond Merritt on behalf of the Mullewa Wadjari Community (WC96/93) (‘the Mullewa Wadjari native title party’);
· Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rod Little, Clarrie Cameron, Rob Ronan, Betty Forsyth, Donna Ronan, name withheld for cultural reasons on behalf of the Amangu People (WC04/2) (‘the Amangu native title party’); and
· name withheld for cultural reasons, Keith Edward Councillor, Lyndsey Graham McDonald, Reginald Councillor, named withheld for cultural reasons, Yvonne Joan Radclifee on behalf of the Naaguja Peoples (WC97/73) (‘the Naaguja native title party’).
On 28 April 2008, being a date more than six months after the s 29 notice was given; the Minister for Resources for the State of Western Australia made an application pursuant to s 35 of the Act for a future act determination under s 38. The Government party requested that the future act determination be made by consent on the basis that one named applicant for the Naaguja Peoples was unable to sign the State Deed (an agreement of the kind contemplated in s 31(1)(b) of the Act signed by each of the negotiation parties).
Attached to the application is a minute of consent determination in the following terms, subsequently executed by Ms Toby Jones, solicitor with the Yamatji Land and Sea Council (‘YLSC’) for and on behalf of the Naaguja native title party, Mr Chris Crookes, Project Consultant for Westralian Gas and Power Limited on behalf of the grantee party, and Mr Jeff O'Halloran, State Solicitor’s Office on behalf of the Government party:
‘DETERMINATION
1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993.
2.The Government Party, the Native Title Party and the Grantee Party have complied with the requirements of section 31(1)(b) of the Native Title Act1993.
3.The Government Party, the Native Title Party and the Grantee Party consents to a determination under section 38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 3/05-6 may be done.’
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 their consent. The YLSC is the Geraldton region service arm of the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, being the recognised representative body under the Act for the Naaguja native title party. 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 (22 June 2001), Hon C J Sumner (Monkey Mia)).
The reasons for seeking a consent determination are set out in the s 35 application, which states, inter alia, as follows:
‘Party 1
Mullewa Wadjari (WC96/93)The grantee party and the Mullewa Wadjari (WC96/93) have reached agreement that the act, being the grant of Petroleum Exploration Permit application 3/05-6, may be done and a State Deed has been partially executed at this stage with the remaining signatures still be to collected.
Party 2
Naaguja (WC97/73)The grantee party and YLSC on behalf of the Naaguja (WC97/73) have reached agreement that the act, being the grant of Petroleum Exploration Permit application 3/05-6, may be done and a State Deed has been signed by the parties. One of the named applicants, Mr Reginald Councillor, is unable to sign due to dementia and the Tribunal has indicated that documents provided by YLSC in two previous future act determination (WF04/7 and WF04/21) would be sufficient. …’
As a consequence of information provided in the s 35 application and Tribunal assisted mediation pursuant to s 31(3) of the Act it is clear that the grantee party has been in negotiation with each of the native title parties since at least January 2007. I was appointed Member to mediation matters WM07/39 (in relation to Amangu), WM07/40 (in relation to Naaguja) and WM07/104 (in relation to Mullewa Wadjari) and notwithstanding these prior appointments for the associated s 31(3) mediations all parties agreed to my presiding over the s 35 inquiry.
A fully executed State Deed in relation to the Amangu native title party was lodged with the Tribunal 19 March 2008 pursuant to s 41A(1)(a) of the Act and, subsequent to the making of the s 35 application, on 13 May 2008, a fully executed State Deed in relation to the Mullewa Wadjari native title party was also lodged with the Tribunal. As a result it has not been necessary for those native title parties to be represented in these proceedings. I am satisfied that the Amangu and Mullewa Wadjari native title parties have agreed to the grant of the proposed title. However, because the State Deed relating to the Naaguja native title party has not been executed by all the living persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination.
The inquiry and findings in relation to the Naaguja native title party
On 26 May 2008, I conducted a hearing attended by Ms Toby Jones representing the Naaguja native title party, Ms Maryie Platt and Ms Rosie Emms for the Government party and Mr Chris Crookes for the grantee party. Ms Jones confirmed that on 6 December 2007 she obtained instructions from the Naaguja Peoples to consent to a consent determination that the act may be done on the basis that one of the named applicants was unable to execute a State Deed. Ms Jones confirmed that the same named applicant, Mr Reginald Councillor, was unable to sign in relation to two previous consent determination applications made to the Tribunal in 2004 and that to the best of her understanding the same circumstances were applicable in this matter.
Ms Jones further confirmed that she would be in a position to sign the proposed minute of consent for and on behalf of the Naaguja Peoples on receipt of a stamped copy of the executed ancillary agreement. Mr Chris Crookes confirmed that the ancillary agreement had been provided to the YLSC offices in Perth, and that it would be forwarded to Ms Jones’s office in Geraldton. A copy of the minute of consent executed by Ms Jones was subsequently provided to the Tribunal on 12 June 2008. Ms Platt and Mr Crookes each confirmed their consent to a determination in the terms sought during the hearing.
The Tribunal has previous considered the reasons for Mr Reginald Councillor’s inability to execute a State Deed in Mr Glen Councillor & Others on behalf of Hutt River/Mr Keith Councillor and Others on behalf of the Naaguja People/Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia/Victoria Diamond Exploration Pty Ltd/Grange Court Pty Ltd, WF04/7 [2004] NNTTA 38 (10 June 2004) and Arc Energy Limited, CalEnergy Gas (Australia) Ltd, Westranch Holdings Pty Ltd/Mr Keith Councillor and Others on behalf of the Naaguja People; Mr Dennis Comeagain and Others on behalf of the Mullewa Wadjari Community/Western Australia, WF04/21 [2004] NNTTA 88 (21 September 2004), both Hon E M Franklyn, Deputy President. Deputy President Franklyn sought considerable evidentiary material regarding Mr Reginald Councillor’s condition (paras [9]-[15], WF04/7) and in considering his decision in WF04/21 obtained an updated report on Mr Councillor’s health from Agmaroy Nursing Home (para [9]). In those matters the Tribunal was satisfied, on the basis of the evidence presented by YLSC and relevant medical personnel that the Naaguja native title party collectively consented to the act being done.
In this matter I am satisfied that, given the nature of the information concerning Mr Councillor’s condition it is not currently necessary to seek a further report on his capacity.
I am satisfied by the evidence that the Naaguja native title party as a group consent to the determination. The Naaguja native title party has been represented in this matter throughout by the recognised representative body for the area and solicitors engaged by them. Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of the YLSC representative on whether the appropriate consent has been given by the native title party.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of Petroleum Exploration Permit EP 3/05-6 to Westralian Gas and Power Limited, may be done.
Daniel O’Dea
Member
17 June 2008
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