Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd - [2004] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 (1 December 2004)

Application No: WF04/11

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 -

Judy Hughes & Others on behalf of the Thalanyji People (WC99/45) (Thalanyji native title party)

- and -

Ronald Crowe and Others on behalf of Gnulli (WC97/28) (Gnulli native title party)

- and -

Rough Range Oil Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 1 December 2004

Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit – s 31(1)(b) agreement (State Deed) made by Gnulli native title party evidence of consent to determination – no contentions or evidence submitted by the Thalanyji native title party – determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss 31, 35, 37, 38, 39, 41(3), 75, 76, 77, 139, 146(b)
Petroleum Act 1967 (WA) ss 9, 15, 38, 39, 43, 91, 95

Aboriginal Heritage Act 1972 (WA) ss 5, 6, 17, 18, 57, 62

Cases:Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner

Hearing date: 5 November 2004

Counsel for the Gnulli
native title party: Mr Raf Melerski, Yamatji Land and Sea Council

Representative of the

Gnulli native title party: Mr Nathan Cammerman, Yamatji Land and Sea Council

Representative of the
Thalanyji native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the
grantee party: Mr Craig Marshall, Rough Range Oil Pty Ltd

Counsel for the
Government party: Mr Trevor Creewel, State Solicitor’s Office

Representative of the
Government party: Ms Maryie Platt, Department of Industry & Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

On 3 October 2001, 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 petroleum exploration permit EP13/00-1 (‘the proposed permit’) under the Mining Act 1978 (WA) to Rough Range Oil Pty Ltd (‘the grantee party’).
The proposed permit is a future act covered by s 26(1)(c)(i) of the Act and cannot be validly done unless the right to negotiate provisions of the Act are complied with (Part 2, Division 3, Subdivision P (ss 25-44)).
The registered native title parties in respect of these proceedings are:

Mr Albert Hayes, Mr Douglas Fazeldean, Mr John Ard, Ms Glenys Hayes, Ms Judy Hughes, Ms Laura Hicks, Ms Leslie Hayes, and Ms Valerie Ashburton on behalf of the Thalanyji People (WC99/45) (‘the Thalanyji native title party’)
Mr Laurence Cooyou, Mr Ronald Crowe, Mr Sydney Dale, Ms Gwen Cooyou, Ms Mary Franklin, Ms Ruby McIntosh and Ms Sharon Crowe on behalf of Gnulli (WC97/28) (‘the Gnulli native title party’)

The proposed permit concerns an area of some 5724 square kilometres, comprising 72 graticular blocks to the immediate south and east of Onslow, in the Shires of Ashburton and Exmouth. The proposed permit overlaps the registered claim of the Gnulli native title party by 31.91% and that of the Thalanyji native title party by 59.61%. The five graticular blocks in the northern sector of the proposed permit area are not affected by any native title claim.
On 16 June 2004, being a date more than six months after the s 29 notice was given, the Western Australia Minister for State Development (on behalf of the Government party) made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed permit. In making the application the Government party asserted that, in the case of the Thalanyji native title party, agreement could not be reached regarding the doing of the act during the 26 months since the s 29 notice was given. With respect to the Gnulli native title party the application said that the grantee party and Gnulli had in fact executed a Heritage Protection Agreement for the proposed permit, but had not been able to finalise execution of a State Deed, being an agreement between all negotiation parties of the kind mentioned in s 31(1)(b) of the Act and which, if made, means that the Tribunal must not make a determination (s 37).
Section 36(2) of the Act provides that the Tribunal does not have jurisdiction to determine a s 35 application if it is found that any negotiation party (other than a native title party) has not negotiated in good faith over the doing of the act. On 29 June 2004 I forwarded draft Directions for the conduct of the s 35 Inquiry to each party for consideration prior to the Preliminary Conference. The draft was made in the standard form and included Directions for the conduct of a jurisdictional inquiry if the native title party raised the issue of whether the grantee or Government parties had negotiated in good faith.
On 16 July 2004 the Tribunal received correspondence from Mr Jerome Frewen, representative for the Thalanyji native title party, advising that he would not be able to attend the Preliminary Conference, scheduled for 20 July 2004, and requesting that the outcomes be forwarded to him. Further correspondence between Mr Frewen and a Tribunal case manager revealed that Mr Frewen had instructions from the Thalanyji native title party not to participate in the s 35 determination application process and not to challenge the issue of negotiations in good faith despite being of the view that negotiation in good faith did not occur. The lack of resources was cited as the primary reason for his client’s position. Mr Frewen said that his client would not be submitting evidence with respect to the substantive inquiry and would effectively take no part in the process. The Case Manager cautioned Mr Frewen that failure to produce evidence meant the Tribunal would make a decision on the papers before it.
On 20 July 2004 I convened the Preliminary Conference at which all parties with the exception of Thalanyji were represented. It was established that the Gnulli native title party did not wish to raise the issue of good faith and further, that a State Deed regarding the doing of the act was currently being executed between the Gnulli and the Government and grantee parties. With respect to Thalanyji, at my request, the grantee party undertook to forward an agreement in the same terms as the Gnulli agreement to Mr Frewen for consideration. In recognition of the possibility of the matter being resolved by agreement the Preliminary Conference was adjourned without directions being made.
Subsequently, Mr Frewen advised the Tribunal that an agreement in the terms of that made with the Gnulli native title party was not acceptable to the Thalanyji People and they were not prepared to engage in any further Tribunal assisted mediation.
On 6 August 2004 I convened a Status Conference, at which the Thalanyji native title party was again unrepresented, and received advice that the Gnulli State Deed had now been executed. This State Deed was lodged with the Tribunal as required by s 41A(1)(a) of the Act on that day and accordingly I excused the representatives of that party from any further participation in the s 35 inquiry while noting that they would still remain a party to the eventual determination.
Findings as to the Gnulli native title party: The inquiry cannot be terminated until a State Deed has been made involving all negotiation parties including the Thalanyji native title party. However, I find that the State Deed signed by the Gnulli native title party is sufficient evidence of their consent to the doing of the future act to justify making a determination to that effect. Hereafter these reasons relate to issues only pertinent to the Thalanyji native title party.
In the case of the Thalanyji native title party I set Directions for the conduct of the substantive inquiry, requiring compliance with a direction for the provision of maps, sites recorded under the provisions of the Aboriginal Heritage Act 1972 (WA), and land and petroleum tenure by the Government party on or before 31 August 2004, contentions and evidence from the Thalanyji native title party by 28 September 2004 and Government and grantee party contentions and evidence by 12 October 2004.
In this matter I decided that it was necessary to proceed with making directions for the conduct of the inquiry despite the Thalanyji native title party’s clear advice that they did not intend to participate and provide any evidence. Following acceptance of a future act determination application (ss 75, 76, 77) the Tribunal ‘must’ hold an inquiry into it (s 139(a)); ‘must’ make a determination that the act must not be done or may be done subject to conditions (s 38(1)); and in making its determination ‘must’ take into account certain criteria set out in s 39. 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 interests (s 39(1)(a)(i)), sites of particular significance (s 39(1)(a)(i)) and other criteria. It is also impossible to take account of the interests, proposal, opinions or interests of the native title party (s 39(1)(b)) where there is no evidence of them.
The attitude of the Thalanyji native title party creates an unsatisfactory situation and is inconvenient to the other parties who are required to commit resources to complying with directions in the normal way. A question arises whether in these circumstances the matter could be dealt with in a more summary way. There is nothing specific in the Act to permit this course of action and neither the Government nor grantee parties made any submission to this effect. Having received contentions and evidence from the Government and grantee parties in compliance with the directions I have proceeded to conduct the inquiry as far as possible in the normal way despite the lack of participation by the Thalanyji native title party. Nevertheless, I leave open the possibility that in future matters a different, more summary procedure might be considered to dispose of similar matters, particularly if non-participation by native title parties were to become commonplace.
On 9 August 2004, Mr Frewen was advised in writing of the above dates for compliance in the following terms:
‘Please find enclosed directions made by Deputy President Sumner on 6 August 2004 for the conduct of the above inquiry. The Tribunal notes:
·   that you were unable to attend the Preliminary Conference on 20 July 2004 and the Status Conference on 6 August 2004;
·   your advice that your clients did not wish to challenge whether good faith negotiations have occurred; and
·   no agreement with your clients in relation to the future act has been or is likely to be made.
With respect to the Gnulli people (the other native title party) a State Deed will be executed and lodged with the Tribunal and they have been excused from further participation in the inquiry.
I refer to your email correspondence of 19 July 2004 informing the Tribunal that your clients will not be submitting evidence in relation to the inquiry. Nevertheless, the Tribunal, with the consent of the other parties, has made the attached directions in the normal way to provide your clients with the opportunity to participate if they wish. If they do not participate and in particular do not provide the Tribunal with the contentions and evidence referred to in Direction 2, the Tribunal will have no evidentiary basis upon which to make findings about the matters referred to in s 39(1)(a) of the Native Title Act 1993 (Cth) or a determination which takes account of that evidence. Unless your clients participate in the inquiry a determination that the act may be done will be made.
As you have not been able to participate in the proceedings so far and to ensure that your clients are fully aware of the situation I have provided copies of this correspondence to Mr Ron Bower of Corsers, Barristers and Solicitors, who are noted as the address for service for the Thalanyji native title claim, and also to each of the named applicants.’
Copies of the Directions of 6 August 2004 were sent on the same day to each of the named applicants for the Thalanyji native title party, and Mr Ron Bower of Corsers, Barristers and Solicitors, being the address for service as recorded on the Register of Native Title Claims. The Tribunal adopted this course of action to ensure that all persons with authority in the Thalanyji claim group were aware of the situation and in particular of the likely consequences of failing to participate and provide evidence.
On 5 November 2004 I convened a Listing Hearing by which time there had been compliance by the Government and grantee parties but not by Thalanyji. Again, Thalanyji were not represented. The Government party submitted that the matter could be determined on the papers on the basis of the evidence before me, and the grantee party concurred with this submission. I accept that this is an appropriate way to proceed.
The Tribunal has previously considered the nature of a future act determination inquiry and its approach to evidence (Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’) (at 154-163). The Tribunal must act on the basis of evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence which means that parties will produce evidence to support their contentions particularly where 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.
In this matter the Thalanyji native title party have been represented throughout by Mr Frewen who, although not a legal practitioner, has experience in acting for native title parties. He is fully aware of the consequences of non-participation and says he has specific instructions from his clients not to participate. 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 proceeding to make a determination on the papers if that opportunity is not taken up.

The proposed permit

The Government party proposes to grant petroleum exploration permit EP13/00-1 to the grantee party under the Petroleum Act 1967 (WA), 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.
Section 38 of the Petroleum Act entitles the grantee party subject to that Act, Regulations and conditions imposed to explore for petroleum and to carry on such operations and execute such works as are necessary for that purpose in the permit area. A permit may be granted subject to such conditions as the Minister thinks fit (s 43). An example of an exploration permit which I infer is in the form that the grant in this case will be made provides for minimum work requirements in each year of the permit ‘to a standard acceptable to the Minister’ and written approval of the Minister prior to commencement of any work or petroleum exploration operations. There will also be an endorsement requiring necessary consents and permission to be obtained and compensation to be paid to other land users and occupiers so that their activities are not interfered with to a greater extent than necessary; and drawing the grantee party’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA).
Section 91 of the Petroleum Act imposes obligations on a grantee party to carry out all operations in a proper and workmanlike manner and to secure the safety, health and welfare of persons engaged in those operations and to control and prevent the escape of waste (including water). 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 and exploration production requirements 1991’ will be made which contains detailed directions about the manner in which exploration is to be carried out including environmental protection measures.
The Government party contends that the rights under a petroleum exploration permit are exercisable on any land within the permit area ‘whether Crown land or private land or partly Crown land and partly private’ (s 15(1) Petroleum Act). The consent of the Minister is required to enter land reserved under the Land Administration Act 1997 or any other written law (s 15A of the Petroleum Act) and if consent is give, conditions may apply (s 15A(2) Petroleum Act). The Minister is required to consult (s 15A(3)) with the Minister responsible for the reserved land (s 15A(5)). While this is an added protection which may in some circumstances assist to ameliorate the effect of a future act on native title it is of minor relevance here because of the relatively small area of reserve land involved over which native title has not been extinguished.

Legal Principles

I rely, as I have in previous matters, 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 2’) - Tribunal determination following the successful appeal in Evans;
·Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’); and
·WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’).
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 by reference to the amount of profit made, income derived or things produced by the grantee party.
Section 39 lists the criteria for making such a determination:

‘39 Criteria for making arbitral body determinations

(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) (Waljen at 166-167; WMC/Evans at 339-341). I have before me no evidence 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 these 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 the 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. They can be summarised as follows:

Six (6) Pastoral Leases – asserted to have “extinguished the exclusivity of any native title”;
One (1) General Lease, for the purpose of a gas storage facility;
Eleven (11) Reserves vested for varying purposes, all but four of which are asserted to have extinguished native title in the subject area of land;
Unallocated Crown Land; and
Freehold land registered to the Shire of Ashburton.

While there is some unallocated Crown land in the area covered by the Thalanyji claim, the great bulk of it is subject to pastoral leases. There is, therefore, no exclusive claim to native title and any enjoyment of any native title rights and interests will already have been attenuated at least to some extent by the rights exercised by pastoral lessees. In the case of some reserves (quite minor areas in the overall context of the claim) native title has been extinguished.
Native title will not be extinguished by the grant of the proposed permit (s 24MD(3)(a) NTA).
Appended to Government party contentions is a document dated January 2001, entitled “Particulars for the minimum work programme proposed for each of the six years of the first terms of the Permit”. The programme reveals that in Years 1, 3 and 5 the grantee party intends to conduct magnetotelluric or seismic surveys and that in Years 2, 4 and 6, wells will be dug probably during the dry season for an average of six weeks per year.
The grantee party provided evidence of the activities involved in magnetotelluric and seismic surveys. Magnetotelluric equipment can be carried by one person and a light 4WD vehicle is used to transport it to various locations. With respect to seismic surveys some of the techniques described by the Tribunal in Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54 at 71 are either outdated or will not be used here. Seismic surveys, if used, will involve the use of seismic vibrators mounted on large tractor tyred buggies or wide tyred trucks. The vibration lasts between 7 and 20 seconds and involves a low volume whirr and hum which is not felt on the surface beyond about 10 metres. Line clearing as described in Re Nyungah is not likely to be used. Access is made by rolling over the scrub rather than clearing it. No explosives will be used. In the proposed permit area it may be that an even less intrusive seismic survey process will be used (mini sosie seismic) where vibrating machines, which are hand held and portable, are used for seismic recording. Existing tracks and fire breaks are used where possible. Drilling three wells will involve the use of drill rigs and accompanying vehicular transport and equipment and involve ground disturbance in a defined small area. These activities will be subject to the environmental controls described below. The exploration activities proposed under this petroleum permit will cause relatively minor ground disturbance over a limited time in the context of the size of the proposed permit area and Thalanyji claim and on the evidence in this matter will have limited adverse effect, if any, on the enjoyment of the native title party’s native title rights and interests.

Section 39(1)(a)(ii) - way of life, culture and traditions

There is no evidence as to the effect of the proposed permit on this factor.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

There is no evidence of the effect of the proposed permit on this criterion.
The grantee party has contended that effect on the development of the social, cultural and economic structures of the native title parties, if any, would be beneficial rather than adverse because, were commercial quantities of petroleum to be discovered, the grant of a Production Licence would be subject to an agreement between the grantee party and the native title parties. The grantee lists such benefits as “additional and improved roads .., additional water bores …, the provision of employment and job training for the community, and further heritage survey for the benefit of the community. In addition there would be compensation payments for being deprived of possession of part of the surface of the land.”
While the Tribunal has held that any positive effect of a future act can be taken into account (Waljen at 170) it is not permissible to have regard under this criterion to any effect other than that caused by the particular future act under consideration. Section 39(1) talks of ‘the effect of the act’ on the criteria in s 39(1)(a). This cannot be expanded to include any Production Licence which may follow successful exploration. The likelihood of the discovery of commercial quantities of petroleum is purely speculative at this stage. If a Production Licence eventuates it will be a separate future act which will be subject to the right to negotiate. The grantee party’s statement indicates a positive attitude towards the native title party and that due consideration will be given to an agreement with them, if production becomes a reality. While not capable of being considered under this criterion the grantee party’s attitude is a relevant factor under s 39(1)(f) which supports the determination sought.

Section 39(1)(a)(iv) - freedom of access - freedom to carry out rites/ceremonies

There is before me no evidence of any rites, ceremonies or other activities of cultural significance carried out in the land the subject of the proposed lease. In any event, the grantee party’s work programme indicates that exploration work on the ground will be minimal and would therefore have little or no impact on the freedom of the native title parties to continue existing access and activities. The grant of the proposed permit does not in any case confer on the grantee party the right of exclusive possession to the subject area. Further, I note the grantee party’s contentions at 1(iv) that:
‘it is the intent of the Grantee Parties to conduct Heritage Protection Surveys, in conjunction with the relevant land councils and/or traditional owners, over the area of any proposed ground disturbing operations. Therefore, the freedom of the native title parties to carry out rights (sic), ceremonies or other activities of cultural significance on the lands or waters in accordance with their traditions will not be affected as operation will not be conducted in these areas.’

Section 39(1)(a)(v) - sites of particular significance

I have before me evidence of 42 Aboriginal sites as recorded on the Department of Indigenous Affairs (‘DIA’) Site Register for the purposes of the Aboriginal Heritage Act 1972 (WA), all of which appear to be situated in the area of the Thalanyji native title claim. Most sites are classified as open and constitute artefact and midden scatters. Only four sites are closed and are variously categorised as camp, ceremonial, midden, artefact scatters and water source sites. There are no gender restrictions imposed in relation to them. Sites of ‘particular’ significance are those which are of special or more then ordinary significance to the native title claimants (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35). There is no direct evidence that any of the sites on the Register are of this kind but I can infer that the four closed sites are likely to be. 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). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). The Aboriginal Heritage Act provides for the protection and preservation of a wide range of Aboriginal sites (s 5) and objects (s 6). It is an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site (whether on the Register or not) (s 17) without authorisation (s 18), and that offence is punishable by fine or imprisonment or both. Those penalties were increased significantly in amendments to the Aboriginal Heritage Act (No 50 of 2003) which came into effect on 15 May 2004 thus increasing the protective effect of it. The penalty (s 57) for an individual who commits an offence is now $20,000 and infringement for 9 months for a first offence and for a second and subsequent offence the penalty is $40,000 and imprisonment for two years. There are higher penalties for bodies corporate.
It is a defence to a prosecution under the Act if the person charged can prove that he or she did not know and could not reasonably be expected to have known, that the place was a site covered by the Act (s 62). This defence would not be available to the grantee party. The Department of Industry and Resources sends to grantees of petroleum exploration permits a document entitled ‘Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers’ which outlines relevant legislation and contains detailed guidelines about consultation with Aboriginal people about sites. The standard endorsement on the permit draws the grantee party’s attention to the Aboriginal Heritage Act 1972 (WA). With respect to the registered sites, the grantee party is aware of their existence by virtue of the evidence given in these proceedings. In any event the grantee party through his contentions has indicated an intention to conduct Heritage Protection Surveys in conjunction with the relevant land council and/or traditional owners over the area of any proposed ground disturbing operations. I have no reason to believe that the grantee party will not comply with its obligations under the Aboriginal Heritage Act and take whatever action is necessary to avoid interference with sites of particular significance to the native title parties in accordance with their traditions.

Section 39(1)(b) - interests, proposals, opinions or wishes of the native title parties

I have before me no evidence of any interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the area of land the subject of the proposed permit.

Section 39(1)(c) - economic or other significance

The Government party contends that the exploration itself will contribute to the State’s economy and that data collected during such exploration will be integrated into a geological database which, it is hoped, will ultimately cover the entire State of Western Australia. The grantee party contends that if a Production Licence were applied for and granted “the State of Western Australia will receive royalties to the extent of 10% - 12.5% of the well head value of the petroleum produced” and that during the financial year 2001-2002, the State of Western Australia received royalties for $522 million from the petroleum industry. The grantee party also contends that petroleum production would reduce imports of petroleum from other countries, thereby improving the balance of payments, the value of the Australian dollar and reducing interest rates to the benefit of all Australians. These contentions are supported by evidence by the document at Appendix C to the grantee party’s contentions, entitled “Western Australian Mineral and Petroleum Statistics Digest 2003”which addresses petroleum expenditure and its contribution to the economy on (see especially pps 5, 26 and 29).
The Tribunal has held that it is the economic or other significance of the future act itself which must be considered under this criterion and not its contribution to the maintenance of a viable petroleum industry overall (although this is a factor which can be taken into account under s 39(1)(e) - public interest) (Waljen at 175-176). The possibility that production of petroleum may eventuate is not relevant here. The grantee party has submitted a work program which involves the expenditure of $1.56 million over 6 years. This expenditure will contribute to the Western Australian and local economics to some extent. I can also take into account that the exploration permit activity will be of other than direct economic significance in that it is to contribute to the establishment of a state-wide geological database.

Section 39(1)(e) - public interest

As with mining exploration the public interest is served by the ongoing grant of petroleum exploration titles which is necessary to maintain and develop petroleum exploration (Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 at 214-215; Waljen at 215-216). The public interest is served by the grant of the proposed tenement.

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. As I stated in Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003) the effect on the natural environment is, since the 1998 amendments to the Act, no longer a specific factor to be taken into account under s 39(1)(a) but nevertheless the Tribunal is entitled to consider it as a relevant factor where the effect is related to the factors in s 39(1)(a) (WMC/Evans at 339-341). In this case there is no evidence which falls into this category.
I do however accept that operations conducted under the proposed licence 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) attached as Appendix A to the grantee party’s contentions.
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.

Trust condition - ‘compensation’

The Tribunal has power to impose a condition on a determination for the payment of monies into trust by the Government and grantee parties on account of any future claim for compensation by the native title party (s 41(3) NTA). The Thalanyji native title party has made no submissions regarding a payment of monies into a trust for compensation, therefore I have no evidence on which to assess the matter. The native title party’s right to claim compensation through the Federal Court for any loss, diminution, impairment or other effect of the grant of the proposed permit on their native title rights and interests are not affected by this determination.

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). I have no evidence from the Thalanyji 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 properly to balance the various interests because the native title party chose not to use the process available to it under the Act. Nevertheless, I am satisfied given the large area involved, the nature of the activities to be undertaken, the non-exclusive nature of any native title rights and interests and the requirement to protect Aboriginal sites 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 EP13/00-1 to Rough Range Oil Pty Ltd, may be done.

Hon CJ Sumner
Deputy President
1 December 2004