Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar..
[2008] NNTTA 9
•25 January 2008
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Derrick Smith and Others on behalf of Gnaala Karla Booja, Aden Edes and Others on behalf of Southern Noongar, Alan Bolton and Others on behalf Wagyl Kaip/Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd, [2008] NNTTA 9 (25 January 2008)
Application No: WF08/1
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
The State of Western Australia (Applicant/Government party)
- and -
Derrick Smith and Others on behalf of Gnaala Karla Booja (WC98/58) (Gnaala Karla Booja native title party)
- and -
Aden Edes and Others on behalf of Southern Noongar (WC96/109) (Southern Noongar native title party)
- and -
Alan Bolton and Others on behalf Wagyl Kaip (WC98/70) (Wagyl Kaip native title party)
- and -
Red Mountain Energy Pty Ltd, Flamestar Corporation Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 25 January 2008
Catchwords: Native title – future act – application for determination for the grant of petroleum drilling reservation – State Deed fully executed in respect of one native title party - named applicants not signed agreements – Standard Heritage Protection Agreement entered into – native title parties as a whole consent to the determination – determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 29, 31(3), 35, 38, 109, 203
Cases:Eric Robert Brown/Western Australia/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf Wagyl Kaip, NNTT WF06/85, [2007] NNTTA 7 (17 January 2007), Hon C J Sumner.
Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 25 January 2008
Counsel for the Ms Victoria Wetherby,
native title party: South West Aboriginal Land and Sea Council
Representative of the
grantee party: Mr Chris Crookes, Red Mountain Energy Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Rosie Emms, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 15 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 Drilling Reservation DR 3/05-6 (‘the proposed title’) under the Petroleum Act 1967 (WA) to Red Mountain Energy Pty Ltd and Flamestar Corporation Pty Ltd (‘the grantee party’).
The proposed title comprises an area of some 285.6 square kilometres located 26 kilometres south easterly of Collie and 19 kilometres easterly of Greenbushes in the Perth Basin, Collie Basin and Shire of Boyup Brook. The registered claims of the Southern Noongar People (WC96/109, registered from 18 November 1996) and Wagyl Kaip People (WC98/70, registered from 29 September 1998) each overlap the proposed title by 3.06 per cent while the registered claim of the Gnaala Karla Booja People (WC98/58, registered from 17 September 1998) overlaps by 96.94 per cent.
The native title parties with respect to these proceedings are as follows:
· Derrick Smith, Franklyn Nannup, Harry Narkle, Joseph Northover, Joseph Walley, Mervyn Abraham, Peter Michael, Barbara Corbett-Stammner and Lorraine Bellotti on behalf of Nyungar People (Gnaala Karla Booja) (WC98/58) (‘the Gnaala Karla Booja native title party’);
· Aden Eades, Allan Bolton, Dallas Coyne, Glen Colbung, Joyce Winsley and Rita Dempster on behalf of the Southern Noongar Families (WC96/109) (‘the Southern Noongar native title party’);
· Alan Bolton, Glen Colbung, Hazel Brown, Ken Colbung, Kevin Miller, Mark Smith, Mingli Wunjurri-Nungala, Rita Dempster, Rose Pickett and Sam Miller on behalf of Wagyl Kaip (WC98/70) (‘the Wagyl Kaip native title party’)
On 14 January 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 an ancillary agreement had been reached with each of the native title parties but that agreements of the kind mentioned in s 31(1)(b) of the Act between all negotiation parties (i.e. the State Deeds) have not been executed by all the persons named as part of the Southern Noongar and Wagyl Kaip native title applicants. A State Deed has been fully executed in the case of the Gnaala Karla Booja native title party.
Attached to the application is a minute of consent determination in the following terms executed subsequently by Mr Stephen Thomas, Managing Director of Red Mountain Energy Pty Ltd, and Mr Chris Crookes, Project Consultant for Flamestar Corporation Pty Ltd on behalf of the grantee party, Mr Simon Blackshield, Principal Legal Officer with the South West Aboriginal Land and Sea Council (‘SWALSC’) for the Southern Noongar and Wagyl Kaip native title parties, 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 Parties 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 Parties 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 Drilling Reservation 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. SWALSC is the recognised representative body under the Act for the 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).
Background to negotiations
Since at least 4 May 2007 the grantee party has been in negotiation with each of the native title parties, including Tribunal assisted mediation pursuant to s 31(3) of the Act, with a view to reaching agreement for the grant of the proposed title. As a consequence of those negotiations and the events outlined in the s 35 application the following facts are established:
All the living persons comprising the applicant, registered native title claimant and Gnaala Karla Booja native title party (WC98/58) have signed a State Deed agreeing to the grant of DR 3/05-6 to the grantee party. This Deed has also been signed by the other negotiation parties (the Government and grantee party) and was lodged with the Tribunal on 11 December 2007.
The Wagyl Kaip and Southern Noongar native title parties have entered into a Heritage Protection Agreement for the SWALSC Region with the grantee party and have given their unanimous consent to a future act determination application by consent to be made to the Tribunal in the event that one or more living persons comprising the applicant for either native title party fail or refuse to sign State Deeds. The authority to consent is provided by way of a resolution passed at a Working Party Meeting held on 16 November 2006 and made in the following terms:
‘The Region 4 (Wagyl Kaip and Southern Noongar) Working Party resolves that, for purpose of consent for grant of Drilling Reservation 3/05-6 in favour of Red Mountain Energy Pty Ltd and Flamestar Corporation Pty Ltd (the “Grantee Party”), the Grantee Party must enter into a Standard Heritage Protection Agreement for the South West Aboriginal Land and Sea Council (SWALSC) region with the Wagyl Kaip and Southern Noongar Claim Group and SWALSC.
Subject to the Grantee Party having entered into a SWALSC Standard Heritage Protection Agreement, the Region 4 (Wagyl Kaip and Southern Noongar) Working Party resolve and instructs all Wagyl Kaip and southern Noongar named applicants to execute the state deeds and all other documents necessary to facilitate the grant of Drilling Reservation 3/05-6 in favour of the Grantee Party and, in the event that one or more Wagyl Kaip and Southern Noongar named applicants fail or refuse to execute the state deeds or other documents, the Region 4 (Wagyl Kaip and Southern Noongar) Working Party supports any Section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that Drilling Reservation 3/05-6 to granted, subject to the provisions of the Standard Heritage Protection Agreement entered into by the Grantee party, the Wagyl Kaip Claim Group and the Southern Noongar Claim Group and SWALSC.’
One of the persons comprising part of the applicant for the Wagyl Kaip native title party (Kevin Miller) is unwilling to sign the State Deed.
SWALSC has encountered unspecified logistical difficulties in obtaining the signatures of those living persons comprising part of the applicant for the Southern Noongar native title party.
Because the State Deeds relating to the Southern Noongar and Wagyl Kaip native title parties have not been executed by all the persons named as the applicant, the Tribunal must consider whether the matter can be resolved by way of consent determination.
Findings relating to the Gnaala Karla Booja native title party
Because the Gnaala Karla Booja native title party has executed a State Deed which have been lodged with the Tribunal, it has not been necessary for that native title party to be represented in these proceedings. Having sighted the State Deed I am satisfied that the Gnaala Karla Booja native title party have agreed to the grant of the proposed title and consent to a determination in the terms sought.
The inquiry and findings in relation to the Wagyl Kaip and Southern Noongar native title parties
On 25 January 2008, I conducted a hearing at which all parties were represented and each confirmed their consent in the terms sought. Ms Victoria Wetherby of SWALSC, counsel for the Southern Noongar and Wagyl Kaip native title parties, confirmed that an ancillary agreement (in the form of a Regional Standard Heritage Agreement) had been executed between each of the native title parties, SWALSC and the grantee party since the resolution of November 2006 was passed and advised that she was satisfied that SWALSC had been properly instructed by the native title parties to consent to the determination. I note that the difficulties in obtaining signatures for these native title parties were considered by Member O’Dea as the basis for making a consent determination in Galaxy Resources Ltd/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf of Wagyl Kaip/State of Western Australia, NNTT WF06/23 [2006] NNTTA 84 (6 July 2006), Mr Dan O’Dea. Since then I have also accepted these difficulties in Eric Robert Brown/Western Australia/Allan Bolton and Others on behalf of Southern Noongar/Alan Bolton and Others on behalf Wagyl Kaip, NNTT WF06/85, [2007] NNTTA 7 (17 January 2007), Hon C J Sumner.
As the recognised 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 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 Drilling Reservation DR 3/05-6 to Red Mountain Energy Pty Ltd and Flamestar Corporation Pty Ltd, may be done.
Hon C J Sumner
Deputy President
25 January 2008
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