Vera Warrell & Ors on behalf of the Yued People/Western Australia/Empire Oil Company (WA) Limited; ERM Gas Pty Ltd; Wharf Resources Plc
[2013] NNTTA 168
•4 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Vera Warrell & Ors on behalf of the Yued People/Western Australia/Empire Oil Company (WA) Limited; ERM Gas Pty Ltd; Wharf Resources PLC [2013] NNTTA 168 (4 December 2013)
Application Nos: WF2013/0021; WF2013/0022
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
Vera Warrell & Ors on behalf of the Yued People (WC1997/71) (Applicant/native title party)
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Empire Oil Company (WA) Limited; ERM Gas Pty Ltd; Wharf Resources PLC (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Helen Shurven, Member
Place: Perth
Date: 4 December 2013
Catchwords: Native title – future act – application for determination in relation to grant of petroleum production licences – native title party as a whole consents to the determination – consent determination that the act may be done
Legislation:Native Title Act 1993 (Cth) ss 29, 31, 38, 61(2), 62A, 253
Petroleum and Geothermal Energy Resources Act 1967 (WA)
Cases:Placer (Granny Smith) Pty Ltd v Western Australia (2000) 163 FLR 87, ('Granny Smith')
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, (‘Monkey Mia’)
Moore v Mungeranie (2005) 193 FLR 62, (‘Mungeranie’)
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government Party: Ms Mackenzie Bensch, Department of Mines and Petroleum
Representative of the Ms Maryse Aranda, South West Aboriginal Land and Sea Council
native title party: Mr Rory Lang, South West Aboriginal Land and Sea Council
Representative of the Mr Craig Marshall, Empire Oil Company (WA) Limited; ERM Gas
grantee party: Pty Ltd; Wharf Resources PLC
REASONS FOR FUTURE ACT DETERMINATION
On 30 November 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of two future acts, namely the grant of petroleum production licences STP-PRA-0001 and STP-PRA-0002 (‘the proposed licences’) to Empire Oil Company (WA) Limited, ERM Gas Pty Ltd and Wharf Resources PLC (collectively referred to as 'the grantee party’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) ('PEGRA').
The proposed licences each comprise an area of approximately 73.34 square kilometres, and are both located approximately 12 kilometres north west of the town of Gingin, in the Perth Basin. The proposed licences each overlap the registered native title claim of the Yued people (WC1997-0071 – registered from 22 August 1997) by 100 per cent.
The registered native title claimants for Yued are Malcolm Ryder, Vera Warrell, Charlie Shaw, Dennis Jetta and May Maguire, represented by the South West Aboriginal Land and Sea Council (‘the native title party’).
On 11 November 2013, being a date more than six months after the notice day, the native title party applied to the Tribunal to make a determination under s 38 of the Act, in relation to the proposed licences. The application states that:
·there are certain conditions and endorsements upon which the licences will be granted, and these are contained in the 'Notice of Intention to Grant a Primary/Secondary Petroleum Production Licence' (as annexed to the future act determination application);
·the grant allows certain activities under s 62 of the PEGRA (including to recover and explore for petroleum);
·a Heritage Protection Agreement was agreed and executed between relevant parties, through Tribunal mediation assistance, on 12 August 2013; and
·Ms Warrell had resigned as a named applicant for the native title party, due to health reasons, on 10 April 2013.
The application also included an affidavit from Mr Rory Lang, the native title party legal representative, dated 11 October 2013, which outlined the reasons for seeking a consent determination, including:
·On 10 April 2013, he attended a Yued Working Party Meeting in Gingin;
·At that meeting, Ms Warrell resigned from the applicant group, as outlined at [4] above;
·At a further Yued Working Party Meeting on 4 September 2013, he obtained instructions from the native title party to finalise the matter by way of a consent determination;
·There are five named applicants on the native title register for the Yued claim (including Ms Warrell), and 19 members of the Yued Working Party. A member of the Working Party in attendance at the 4 September 2013 meeting put forward a resolution in the following terms, which was seconded:
The s.31 Agreements being the State Deeds for the grant of Petroleum Production Licences being STP-PRA-0001 & STP-PRA-0002 or Retention Leases being STP-PRA-0001 & STP-PRA-0002 cannot be executed by all required Yued Named Applicants/native title party signatories because of the resignation by Vera Warrell as a Yued Named Applicant for health reasons, and the Yued Working Party have passed a resolution giving the Yued Working Party consent to a s.35 consent determination being made, in prescribed Form 5, for the grant of Petroleum Production Licences being STP-PRA-0001 & STP-PRA-0002 or Retention Leases being STP-PRA-0001 & STP-PRA-0002. The Yued Working Party and Yued Named Applicants further instructs the Legal Officer, Rory Lang, to lodge a section 35 Native Title Consent Determination Application in Form 5 on Yued's behalf as required and do all things necessary to effect completion of a [sic] s.35 consent determinations being made.
·A further resolution at the same meeting was put forward and seconded in the following terms:
Subject to the Heritage Protection Agreement, Ancillary Agreement, being signed by the majority of the Yued native title party signatories, the Empire Oil Company (WA) Limited, ERM Gas Pty Ltd representatives, the majority of the Yued Native Title Claim Applicants authorise and directs, SWALSC Legal Officer, Rory Lang, to bring s35 Consent Determinations in circumstances where the Yued Named Applicant, Ms Vera Warrell, cannot sign the State Deeds due to the Yued Named Applicant’s resignation as a Yued Named Applicant on the grounds of health reasons. This motion applies to applications for exploration and Production.
·The Yued claim representatives (apart from Ms Warrell, for the reason outlined above) have signed the Heritage Protection Agreement
Between 11 October 2013 and 14 November 2013, a proposed Minute of Consent Orders for each proposed licence was circulated between the native title party, the Government party and the grantee party for signatures, in counterpart. The Minute was signed by all parties and made in the following terms:
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 Act 1993.
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 consent to a determination under s. 38 of the Native Title Act 1993 that the “act”, being the grant of Petroleum Production Licence [STP-PRA-0001 and STP-PRA-0002], may be done.
Legal Principles
Though the native title party may arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit, within the framework of the Act, only the person or persons comprising the applicant are authorised to bring a native title application or deal with matters arising from it (see in particular ss 61(2) and 62A of the Act). Part 2 of Division 3 of the Act, which concerns future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate (in the case of an area where a determination of native title has been made) or a Registered Native Title Claimant (where a native title application has been accepted for registration but not yet determined), (see s 29(2) of the Act).
Relevantly, s 253 of the Act defines the Registered Native Title Claimant as ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims in relation to a claim to hold native title in relation to land or waters.’ However, the Tribunal has accepted that the native title party is not each registered native title claimant, but the registered native title claimants acting collectively as representatives and agents of the claim group: Granny Smith at [50]-[56]; Monkey Mia at [19]; Mungeranie at [45].
The Inquiry
The relevant extract from the Register of Native Title Claims confirms that the native title party is legally represented by the South West Aboriginal Land and Sea Council (SWALSC), and written submissions in this consent determination were made on behalf of the native title party by their legal representative from SWALSC.
I was appointed as the Member for the purposes of conducting this inquiry on 12 November 2013, and accepted the application on 3 December 2013.
Findings
Based on the information provided by the native title party’s legal representative, I find that the claim group as a whole consents to the grant of the proposed licences.
In light of these findings, I am satisfied that the native title party, acting collectively, agree to the doing of the proposed acts and consent to a determination in the terms sought. There is no credible suggestion that it would be inappropriate to make a determination on that basis.
Determination
By consent, the determination of the Tribunal is that the act, namely the grant of petroleum production licences STP-PRA-0001 and STP-PRA-0002 to Empire Oil Company (WA) Limited; ERM Gas Pty Ltd; Wharf Resources PLC, may be done.
Helen Shurven
Member
4 December 2013
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