Western Australia/Martha Borinelli and Others on behalf of the Yued People, Arnold Franks, Raymond Dann and Others on behalf of the Amangu People/Westralian Gas and Power Limited

Case •

[2008] NNTTA 47

•

11 April 2008

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Martha Borinelli and Others on behalf of the Yued People, Arnold Franks, Raymond Dann and Others on behalf of the Amangu People/Westralian Gas and Power Limited, [2008] NNTTA 47 (11 April 2008)

Application No:        WF08/13

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)

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Martha Borinelli and Others on behalf of the Yued People (WC97/71) (Yued native title party)

- and -

Arnold Franks (WC98/57) (Franks native title party)

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Raymond Dann and Others on behalf of the Amangu People (WC04/2) (Amangu native title party)

- and -

Westralian Gas and Power Limited (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea

Place:  Perth
Date:  11 April 2008

Catchwords:  Native title – future act – application for determination for the grant of petroleum drilling reservation – State Deed fully executed in respect of two native title parties – named applicant not signed agreement – Standard Heritage Protection Agreement entered into – Yued 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(1), 31(3), 35, 38, 109(1), 109(3), 203B(4), 203BB(1), 203BC(1), s 203BC(2)

Petroleum Act 1967

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 (22 June 2001), Hon C J Sumner

Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner

Western Australia/Martha Borinelli and Others on behalf of the Yued People/Westralian Gas and Power Limited, NNTT WF07/2, [2007] NNTTA 31 (5 April 2007), Hon C J Sumner

Quantum Holdings Pty Ltd/Western Australia/Martha Borinelli and Others on behalf of the Yued People, NNTT WF06/81, [2007] NNTTA 34 (30 April 2007), Member O’Dea

Hearing date: 10 April 2008

Counsel for the  Mr Richard Hickson

native title party:                South West Aboriginal Land and Sea Council

Representative of the          

grantee party:  Mr Chris Crookes, Westralian Gas and Power Limited

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

Government party:              Ms Maryie Platt, Department of Industry and Resources
  Ms Rosemary Emms, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

  1. 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 4/05-6 (‘the proposed title’) under the Petroleum Act 1967 (WA) to Westralian Gas and Power Limited (‘the grantee party’).

  2. The proposed title covers an area of some 223.1 square kilometres and comprises 3 blocks in the Perth Basin. The proposed title is approximately 8 kilometres east-west by 27.5 kilometres north-south and located in the Shires of Carnamah and Coorow. The registered claims of Arnold Franks (WC98/57, registered from 15 September 1998) and Amangu People (WC04/2, registered from 3 March 2005) each overlap the proposed title by 77.4 per cent while the registered claim of the Yued People (WC97/71, registered from 22 August 1997) overlaps the proposed title by 22.6 per cent.

  3. The native title parties with respect to these proceedings are as follows:

    ·     Arnold Franks, Charmaine Walley, Diane Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder, Martha Borinelli, name withheld for cultural reasons on behalf of the Yued People (WC97/71) (‘the Yued native title party’);

    ·     Arnold Franks (WC98/57) (‘the Arnold Franks native title party’);

    ·     Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rod Little, Clarrie Cameron, Rob Ronan, Betty Forsyth, Donna Ronan, name held for cultural reasons on behalf of the Amangu People (WC04/2) (‘the Amangu native title party’).

  4. On 17 March 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.

  5. Attached to the application was a minute of consent determination later executed by Mr Simon Blackshield, Principal Legal Officer with the South West Aboriginal Land and Sea Council (‘SWALSC’) for the Yued 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 in the following terms:

‘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 Drilling Reservation 4/05-6 may be done.’

  1. 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 SWALSC is the recognised representative body under the Act for the Yued 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)).

  2. The reasons for seeking a consent determination are set out in paragraph 10 of the application which states the following:

    ‘Party 1
    Yued (WC97/71)

    The grantee party and the SWALSC on behalf of the Yued (WC97/71) have reached agreement that the act may be done at the Yued and Region 5 Working Group meeting held on 10 August 2006 (see Extract of this Working Group meeting in Appendix 5b). One of the Yued Applicants, Mr Arnold Franks, is unwilling to sign the State Deed, accordingly all parties seek a consent determination in respect of the Yued future act component of this application.  One of the named applicants, Mr William Warrell, is deceased and the Registered Death Certificate Number is 001267J/2006.’

  3. The Franks native title party and Amangu native title party have executed State Deeds which have been lodged with the Tribunal on 22 January 2008 and 17 March 2008 respectively and therefore it is not necessary to determine that the act can or cannot be done in relation to them.   

  4. Since at least from June 2006 the grantee party has been in negotiation with each of the native title parties. This includes Tribunal assisted mediation pursuant to s 31(3) of the Act, (WM06/44, WM07/18 and WM07/38) with a view to reaching agreement for the grant of the proposed title. I was appointed Member to matters WM07/18 & WM07/38 and parties views were sought regarding my appointment as Member for the s 35 Inquiry on the basis that a consent determination is sought. Notwithstanding my prior appointment as Member for the associated s 31(3) mediation matters parties provided no objection to my presiding over the s 35 Inquiry.

  5. In summary, consent determination is sought as parties have entered into ancillary agreements, and the agreement of the kind mentioned in s 31(1)(b) of the Act between all negotiating parties (i.e. the State Deeds) have been executed by all the applicants save for the Yued native title party. One of the named applicants, Mr Arnold Franks is unwilling to sign State Deed.

  6. Appended to the application made by the Government party is Annexure 5b which sets out the authority to consent provided by way of a resolution carried unanimously at the Region 5 (Yued) Working Party meeting held on 10 August 2006 and made in the following terms:

    ‘The Region 5 (Yued) Working Party resolve that, for purpose of consent for grant of Drilling Reservation 4/05-6 and Petroleum Exploration Permit 1/05-6 in favour of Westralian Gas and Power Limited (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 Yued Claim Group and SWALSC.

    Subject to the Grantee Party having entered into a SWALSC Standard Heritage Protection Agreement, the Region 5 (Yued) Working Party resolve and instruct all Yued named applicants to execute the state deeds and all other documents necessary to facilitate the grant of Drilling Reservation 4/05-6 and Petroleum Exploration Permit 1/05-6 in favour of the Grantee Party and, in the event that one or more Yued named applicants fail or refuse to execute the state deeds or other documents, the Region 5 (Yued) Working Party supports any Section 35 application by the Grantee Party to the National Native Title Tribunal for a determination that Drilling Reservation 4/05-6 and Petroleum Exploration Permit 1/05-6 be granted, subject to the provisions of the Standard Heritage Protection Agreement entered into by the Grantee party, the Yued Claim Group and SWALSC.’

  7. Because the State Deed relating to the Yued native title party has 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. 

The inquiry and findings in relation to the Yued native title party

  1. On 10 April 2008, I conducted a hearing in which Mr Richard Hickson, Principal Legal Officer with SWALSC appeared as counsel for the Yued native title party, Mr Rod Wahl, Ms Maryie Platt and Ms Rosemary Emms represented the Government party and Mr Chris Crookes represented the grantee party. All parties confirmed their consent in the terms sought. 

  2. Mr Hickson confirmed that the Standard Heritage Protection Agreement had been executed between the Yued native title party, SWALSC and the grantee party. He advised that on the basis of the resolution of 10 August 2006 he was satisfied that the SWALSC had been properly instructed by the Yued native title party to consent to the determination. 

  3. The issues raised by the refusal of persons named as part of the applicant to execute documents giving effect to agreements reached with the Yued native title party has been considered by the Tribunal on a number of occasions (see for example Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, NNTT WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner at [7]-[8], Western Australia/Martha Borinelli and Others on behalf of the Yued People/Westralian Gas and Power Limited, WF07/2, [2007] NNTTA 31 (5 April 2007), Hon C J Sumner at [8]-[9]) and Quantum Holdings Pty Ltd/Western Australia/Martha Borinelli and Others on behalf of the Yued People, NNTT WF06/81, [2007] NNTTA 34 (30 April 2007), Member O’Dea at [13-[15]]).

  4. In these matters the Tribunal was satisfied, on the basis of the evidence presented by SWALSC, the claimants consented to the act being done. The ‘native title party’ is not each individual person named as part of the applicant and registered native title claimant but the applicant and registered native title claimant acting collectively as representatives and agents for the claimant group and individual persons named as part of the applicant are not entitled to separate representation (Monkey Mia at [19]–[21]). If the Tribunal is satisfied that the applicants and registered native title claimants (or more accurately the persons named as part of the applicant and registered native title claimant) collectively consent, then in the absence of any cogent reason suggesting it is inappropriate a consent determination can be made.

  5. In the present case I am satisfied by the evidence that the Yued native title party as a group consent to the determination. The Yued native title party has been represented in this matter throughout by the recognised representative Aboriginal/Torres Strait Islander body for the area (SWALSC) and solicitors engaged by them. 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 representatives on whether the appropriate consent has been given by the native title party.

Determination

  1. By consent the determination of the Tribunal is that the act, namely the grant of Petroleum Drilling Reservation DR 4/05-6 to Westralian Gas and Power Limited, may be done.

Daniel O’Dea
Member
11 April 2008

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