Western Australia/ Martha Borinelli and Others on behalf of the Yued People/ Westralian Gas and Power Limited
[2007] NNTTA 31
•5 April 2007
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/ Martha Borinelli and Others on behalf of the Yued People/ Westralian Gas and Power Limited, [2007] NNTTA 31 (5 April 2007)
Application No: WF07/2
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 (Applicant/Government party)
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Martha Borinelli and Others on behalf of the Yued People (WC97/71) (native title party)
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Westralian Gas and Power Limited (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 5 April 2007
Catchwords: Native title – future act – application for determination for the grant of petroleum exploration permit – certain named applicants not signed agreements – native title party as a whole consents to the determination – consent determination that the act may be done subject to condition – heritage agreement.
Legislation: Native Title Act 1993 (Cth), ss 35, 38, 109, 203
Cases:Enmic Pty Ltd/Martha Borinelli and Others on behalf of the Yued People/Western Australia, WF06/4, [2006] NNTTA 29 (31 March 2006), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Hearing date: 5 April 2007
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Industry and Resources
Representative of the Mr Stefan Le Roux, Solicitor
native title party: South West Aboriginal Land and Sea Council
Representatives of the Mr Chris Crookes
grantee party: Westralian Gas and Power Limited
REASONS FOR FUTURE ACT DETERMINATION
Background
On 1 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 petroleum exploration permit 1/05-6 EP (‘the proposed permit’) under the Petroleum Act 1967 (WA) to Westralian Gas and Power Limited (‘the grantee party’). The proposed permit is 445.3 square kilometres located in the Shires of Coorow and Dandaragan. It is 100 per cent overlapped by the Yued registered native title claim (WC97/71, registered from 22 August 1997)
The native title party with respect to these proceedings is as follows:
· Martha Borinelli, Arnold Franks, Charmaine Walley, Dianne Mippy, Edna Ryder, Jenny Mogridge, Joseph Ryder, Mal Ryder and a deceased person whose name is withheld for cultural reasons on behalf of the Yued People (WC97719) (‘the native title party’).
On 22 March 2007, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Act for a future act determination under s 38 of the Act.
The Government party requested that the future act determination be made by consent and paragraph 10 of the application states:
“The SWALSC together with Westralian Gas and Power Limited propose to execute an ancillary agreement titled “Heritage Protection Agreement between Westralian Gas and Power Ltd (‘Grantee Party’) and the Yued People and the South West Aboriginal Land and Sea Council.
One of the Yued applicants is unwilling to sign the State Deed and another of the applicants’ whereabouts in unknown.”
Attached to the application is a consent minute in the following terms, later executed by South West Aboriginal Land and Sea Council (‘SWALSC’) Principal Legal Officer Mr Simon Blackshield on behalf of the native title party, Mr Stephen Thomas on behalf of the grantee party, and Mr Jeff O’Halloran on behalf of the Government party:
‘DETERMINATION
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 consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permit 1/05-6 may be done, subject to the “Heritage Protection Agreement between Westralian Gas and Power Ltd (‘Grantee Party’) and the Yued People and the South West Aboriginal Land and Sea Council.”.’
The Tribunal has before it the following ancillary agreement:
· Heritage Protection Agreement between Westralian Gas & Power Ltd (“Grantee party”) and The Yued People and the South West Aboriginal Land and Sea Council dated 8 September 2006.
The ancillary agreement has been executed by the grantee party, two SWALSC representatives and two of the eight living persons named as the native title party applicant namely Charmaine Walley and Mal Ryder who have authority on behalf of the native title party to enter into agreements of this kind. It includes the proposed permit, drilling reservation 4/05-6 and any extension or renewal thereof (page 4).
Because an agreement of the kind mentioned in s 31(1)(b) of the Act (i.e. the State Deed) 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 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 and Mr Stefan Le Roux, solicitor, has represented them in these proceedings. 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).
The inquiry
On 5 April 2007, a hearing was conducted at which all parties were represented and confirmed their consent in the terms sought. Mr Le Roux stated he was satisfied SWALSC had been properly instructed by the native title party to consent to the determination. A State Deed has not been executed in this case because it is known from his past attitude that one of the persons named as part of the applicant, Mr Arnold Franks, will not sign it.
The issues raised by the refusal of Mr Franks 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 (‘Enmic’) at [7]-[8]). In that matter the Tribunal was satisfied, on the basis of documentary and oral evidence presented by SWALSC, the claimants consented to the act being done. In the current matter, there is the additional issue that the exact address of one of the persons comprising the applicant is unknown to SWALSC.
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.
In the present case I am satisfied by the evidence that the native title party as a group consent to the determination. The 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.
The proposed consent determination is sought to be expressed in terms that the act may be done ‘subject to the “Heritage Protection Agreement between Westralian Gas and Power Ltd (‘Grantee Party’) and the Yued People and the South West Aboriginal Land and Sea Council”’. I refer to paras [9]-[11] of Enmic (and cases cited therein) in which I considered past Tribunal consent determinations made subject to conditions. I noted that whilst the Tribunal has a broad power to impose conditions there are some limitations the most specific of which is that the Tribunal cannot impose a condition for payments to be made to a native title party based on the amount of profits made, income derived or things produced by the grantee party as a result of the doing of the future act. I noted that the Tribunal has made a number of consent determinations subject to conditions only after seeing the relevant agreement and satisfying itself that it does not contain terms which the Tribunal has no power to impose. In the present matter I have read the ancillary agreement and it does not contain terms which the Tribunal does not have power to impose and in these circumstances I am prepared to make the determination subject to the terms of that agreement.
As I observed in Enmic at paragraph [22], the difficulties in relation to Mr Arnold Franks giving effect to the collective decisions of the native title party have been known for some time. The claim group and SWALSC should give consideration to rectifying this unsatisfactory situation by replacing Mr Franks as one of the persons jointly comprising the applicant.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 1/05-6 to Westralian Gas and Power Limited may be done subject to the Heritage Protection Agreement between Westralian Gas & Power Ltd (“Grantee Party”) and The Yued People and the South West Aboriginal Land and Sea Council dated 8 September 2006.
Hon C J Sumner
Deputy President
5 April 2007
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