Western Australia v Hayes
[2001] NNTTA 41
•1 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/West Australia Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes, Glenys Hayes, Judy Hughes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji people (WC99/45), [2001] NNTTA 41 (1 June 2001)
Application No: WF00/07
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of a Future Act Determination Application
The State of Western Australia (Government party)
- and -
West Australia Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd
(grantee party)
-and-
Leslie Hayes, Glenys Hayes, Judy Hughes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji people (WC99/45) (native title party)
FUTURE ACT DETERMINATION
Tribunal: The Hon C J Sumner, Deputy President
Place: Perth
Date: 1 June 2001
Catchwords: Native title – future act – application in relation to the grant of petroleum production licence – nature of petroleum production licence – activities and disturbance to be undertaken considered – petroleum industry different to mining industry – current intentions of grantee party do not involve ground disturbance – possibility of future ground disturbance to be taken into account – weighing of criteria in s 39(1)(a) of Native Title Act – native title will not be extinguished by grant – limited evidence of enjoyment of registered native title rights and interests – possible site of particular significance – environmental protection regime relevant – determination that the act may be done – limited conditions for access, notice and information to the native title party imposed.
Legislation:Aboriginal Heritage Act 1972 (WA) ss 15, 18, 62
Native Title Act 1993 (Cth) ss 23B, 24MD(2), 24MD(3)(a), 26(3), 35, 38, 39, 109(3), 151(2), 233(1), 238
Petroleum Act 1967 (WA) ss 15A(3), 15A(4), 26, 38, 50, 54, 62, 63, 66, 95, 117,153
Petroleum Pipelines Act 1969 (WA) s 17
Conservation and Land Management Act 1984, s 38
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 121
Cases:Western Australia v Commonwealth (The Native Title Act Case) 1994-1995; 183 CLR 373
Western Australia v Thomas & Ors (1996) 133 FLR 124
ReKoara People (1996) 132 FLR 73
Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon C J Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
The Commonwealth of Australia v WMC Resources Ltd (1998) HCA 8
Western Australia v Ward [2000] FCA 191; 99 FCR 316; 170 ALR 159
WMC Resources Ltd/Western Australia/Evans (Koara), NNTT WF99/4, Hon C J Sumner, 23 December 1999
Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People), NNTT WF00/2, WF00/3, WF00/4 & WF00/5, Hon C J Sumner, Mr J Sosso and Ms Jennifer Stuckey-Clarke, 8 December 2000
Western Australia/Western Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes & Ors (Thalanyji People), NNTT WF00/07, Hon C J Sumner, 9 March 2000
REASONS FOR DETERMINATION
Background
On 1 December 2000, the State of Western Australia (‘the Government party’) applied for a determination by the Tribunal pursuant to s 35 of the Native Title Act 1993 (Cth) (‘the NTA’) in relation to the proposed grant of application L1/97-8 for a petroleum production licence under the Petroleum Act 1967 (WA) (‘the Production Licence’). The proposed licence covers the land area of Thevenard Island, off the coast of Onslow in north-west Western Australia. It is for a term of 21 years with an option of renewal for a further 21 years (s 63 Petroleum Act 1967). This is the first Tribunal s 35 determination which considers a title proposed to be issued under the Petroleum Act 1967 rather than the Mining Act 1978.
The grant of the Production Licence will be made to West Australia Petroleum Pty Ltd (‘WAPET’) and Shell Development (Australia) Pty Ltd as ‘the grantee party’ specified on the s 29 notice given on 19 May 1999. However, the beneficial ownership lies with various Joint Venture Participants who have interests in several petroleum titles off the north-west coast of Western Australia (known as the Barrow, Thevenard and Gorgon Assets) which are governed by a series of agreements, the most recent of which is the Thevenard Island Production Joint Operating Agreement of 9 August 1999. The current Joint Venture Participants are Chevron Australia Pty Ltd, Texaco Australia Pty Ltd, Mobil Australia Reserves Pty Ltd and Santos Offshore Pty Ltd. The Production Licence will replace Petroleum Exploration Permit EP65, of which the Joint Venturers are also the beneficial owners. The Production Licence would ultimately be assigned to them. WAPET was the Operator of Thevenard Island operations during most of the period of negotiations relating to the Production Licence and managed the negotiations, however the current Operator is Chevron Australia Pty Ltd. For the sake of convenience, I have referred throughout these reasons to the grantee party as ‘WAPET’.
Leslie Hayes and Glenys Hayes, on behalf of the Thalanyji People, were registered native title claimants over the area covered by the Production Licence at the close of the s 29 notice period on 19 September 1999 (Claim No WC96/82). On 10 November 1999, the Federal Court combined existing Thalanyji claims (including WC96/82) under the amended NTA (‘the new NTA’). The combined claim was accepted for registration and the details entered on the Register of Native Title Claims on 7 February 2000 as Claim No WC99/45. The registered claimants for the combined claim represent the same claimant group as defined in Claim No. WC96/82 and the right to negotiate therefore continues. The registered native title claimants on the combined claim are Leslie Hayes, Glenys Hayes, Judy Hughes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People and are ‘the native title party’ in this application.
On 9 March 2001, the Tribunal decided (Western Australia/Western Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes & Ors (Thalanyji People), NNTT WF00/07, Hon C J Sumner, 9 March 2001) that the grantee party had negotiated in good faith as required by s 31(1)(b) of the NTA. There is therefore no jurisdictional impediment on good faith grounds to the Tribunal’s capacity to make a determination in response to the s 35 application. There have been no further contentions made by the parties about the Tribunal’s jurisdiction to conduct an inquiry and make a determination. No agreement of the kind mentioned in s 31(1)(b) of the NTA between the negotiation parties to the grant of the Petroleum Licence has been made and given to the Tribunal (s 41A(1)(a)), so the Tribunal must conduct an inquiry and make a determination (ss 37 and 38).
The hearing and parties’ contentions
All parties expressed their support for the hearing to be conducted ‘on the papers’ and there was no request for a hearing to be conducted on country. I decided that it was appropriate to determine the matter without holding a hearing but by consideration of the documents and other material provided to the Tribunal (s 151(2) NTA). Documents produced and other evidence given at the good faith hearing are also evidence for purposes of the determination. In addition the Government and grantee party filed comprehensive documentary evidence, including affidavits from:
William Frederick Mason, Manager, Policy, Legislation and Titles Branch of the Petroleum Division of the Department of Mineral and Energy;
Christine Caroline Sammut, Business Development Coordinator, Chevron Australia Pty Ltd;
Angus Dale Ruddock, Geophysical Interpreter, Chevron;
Malachy Gerard Ryan, Health, Safety and Environment Support and Facilities Team Leader for Barrow and Thevenard Assets, Chevron; and
Stephan John Fritz, Environmental Coordinator for the Barrow and Thevenard Assets, Chevron.
The native title party filed contentions, an ‘Impact Statement’ and proposed conditions in the event the Tribunal made a determination that the act may be done.
At the preliminary proceedings the Government party was represented by Mr Barry King instructed by Ms Rhonda Howlett of the Crown Solicitor’s Office, the native title party by Ms Sally Bruce of Corsers, Barristers and Solicitors and the grantee party by Mr Marcus Soloman and Ms Sandra Brown of Gadens, Solicitors.
The Government and grantee parties’ primary contention was that the grant should be made without conditions. The native title party’s contention was that the future act not proceed or in the alternative that conditions be imposed. The parties where advised of the Tribunal’s intention to make a determination that the act may be done subject to conditions and given an opportunity to produce an agreed draft for consideration. A final draft of the conditions was made available to the parties for comment.
The law
In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:
ReKoara People (1996) 132 FLR 73 (‘Koara 1’).
Evans v Western Australia 77 FCR 193 (‘Evans’). ( Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;
Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’);
WMC Resources Ltd/Western Australia/Evans (Koara), NNTT WF99/4, Hon C J Sumner, 23 December 1999.
Although concerned with the grant of mining leases under the Mining Act 1978 (WA) these decisions are applicable to Petroleum Act grants and provide guidelines for interpretation of the s 39 criteria and the appropriate weighing of interests involved.
The centrally relevant statutory provisions are ss 38 and 39 of the NTA.
‘38 Kinds of arbitral body determinations
(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a) is not reasonably capable of being determined when the determination is made; and
(b) is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.
Matters to be determined by arbitration
(1B)If:
(a) the manner specified is arbitration (other than by the arbitral body); and
(b) the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
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.’
Thevenard Island
Thevenard Island is situated approximately 22 kilometres north north-west of Onslow, Western Australia and occupies an area of approximately 6 square kilometres at high tide. It is approximately 6 kilometres in length and over 1 kilometre wide at its widest point. There is a large intertidal area. It is comprised of a series of sand dunes, which nowhere exceed 5 metres in height. Most of the Island is a Conservation and Land Management Department (‘CALM’) ‘C’ Class Reserve for the conservation of flora and fauna. It comprises acacia shrubs and other vegetation including localised and unusual plant species. There are coral reefs in the vicinity. The wildlife on and around the Island include: the Thevenard Island native mouse, nesting Green and Flatback turtles, resident and migratory birds and nesting seabirds. At the eastern end of the island, and covering approximately 10% of it are already established infrastructure facilities for:
a fishing holiday resort from which Mackerel Islands Pty Ltd operate a deep-sea fishing venture, predominantly for tourism purposes (special lease 3116/9594); and
a 1.2 kilometre airstrip (special lease 3116/9595 to Mackerel Island Pty Ltd); and
an oil and gas processing plant, pipelines, wellheads and accommodation for both WAPET staff and CALM officers when they visit the island (lease from CALM to WAPET);
All grantee party staff arrive at and leave the island by air, the Mackerel Islands’ staff and guests access the island by the company’s launch boats.
The precise nature of the existing interests on the Island and their relationship to any native title rights and interests is further considered below.
The nature of a Western Australian petroleum production licence
This is the first petroleum production licence considered in a future act determination by the Tribunal. The petroleum industry and its regulatory regime are different from mining. Although the law to be applied is the same in both contexts the practical impact of petroleum exploration and production on native title rights and interests is likely to be generally less than for mining exploration and production. This will become apparent from the discussion which follows. Unlike mining leases, which may authorise enormous impact through open cut mines and the like, a petroleum production lease authorises recovery of a liquid and gas resource stored far below ground that can be drawn up through narrow bore holes.
The Petroleum Act 1967 (WA) only applies to the State as defined in s 26 of that Act which means all that part of the State of Western Australia that is not comprised in the ‘adjacent area’ as defined in the Petroleum (Submerged Lands) Act 1982. This means any titles granted under the Petroleum Act only apply to areas on the landward side of the mean low water mark. Offshore titles beyond this area are granted and administered under the Petroleum (Submerged Lands) Act 1982 (up to three nautical miles seaward of the baseline) or the Commonwealth Petroleum (Submerged Lands) Act 1967 (beyond the three nautical mile limit).
The grantee party holds an existing exploration permit (EP65) which confers the following rights under s 38 of the Petroleum Act:
‘38. A permit, while it remains in force, authorizes the permittee, subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum and to carry on such operations and execute such works as are necessary for that purpose, in the permit area.’
As the grantee party has an existing exploration permit, it can make an application under s 50 for a production licence to be granted under s 54 of the Petroleum Act over the 2 graticular blocks currently the subject of EP65. A production licence confers the following rights:
‘62. A licence, while it remains in force, authorises the licensee, subject to this Act and the regulations and in accordance with the conditions to which the licence is subject-
a)to recover petroleum in the licence area and to recover petroleum from the licence area in another area to which he has lawful access for that purpose;
b)to explore for petroleum in the licence area:
and
c)to carry on such operations and execute such works in the licence area as are necessary for those purposes’
Section 66 of the Petroleum Act gives the Minister a broad discretion to impose on the grant ‘such conditions as the Minister thinks fit and specifies in the licence’. The title of the relevant Minister has recently changed and references to the Minister for Mines in these Reasons should be taken to refer to the Minister for State Development. Initially, the Government party’s evidence was that, typically, the conditions imposed on the licensee include:
‘1.The licensee shall –
(a)pay the Minister for Mines, in respect of petroleum recovered by the licensee in the licence area, royalty at the rate that is for the time being the prescribed rate in respect of that petroleum;
(b)in respect of each royalty period, furnish to the Minister for Mines, in such form as the Minister for Mines may from time to time require, full particulars of the quantity of petroleum recovered by the licensee and full particulars of matters relevant to ascertaining the value at the well-head of that petroleum; and
(c)permit a person authorised in writing for the purpose by the Minister for Mines or an inspector, to test or examine any measuring device installed that has been, is being or is to be used by the licensee to measure the quantity of any petroleum recovered in the licence area.
2.The licensee shall not construct any installation or install any equipment in the licence area except with and in accordance with the approval in writing of the Minister for Mines or a person authorised in writing by the Minister for Mines to give that approval.
3.The licensee shall not abandon, suspend or complete any well except with and in accordance with the approval of the Minister for Mines or of a person authorised by the Minister for Mines to give that approval.
4.The licensee shall at all times comply with –
(a)the provisions of the Act and of any regulations for the time being in force under the Act; and
(b)all directions given to the licensee under the Act or the regulations for the time being in force under the Act.
5.In carrying out its operations in the licence area the licensee shall take adequate measures for the protection of the environment and shall comply with all reasonable requests of the Minister for Mines in relation thereto.
6.The licensee shall comply with the provisions of the Aboriginal Heritage Act 1972-80 to ensure that no action is taken which is likely to interfere with or damage any Aboriginal site.
Subsequently, the Tribunal requested the Government party to advise what conditions would actually be imposed. The conditions which will be imposed are Conditions 1 to 5 and the following endorsements:
‘1.In addition to any specific conditions that are endorsed on this instrument, the holder in exercising the rights granted herein must first ensure that all necessary consents and permissions have been obtained and applicable compensation has been agreed to or determined and that consultation has occurred where the lawful rights of other land users and occupiers are concerned so that the activities of those other land users and occupiers are not interfered with to a greater extent than is necessary for the reasonable exercise of the rights and performance of the duties of the holder of this production licence.
2.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972.’
There is thus no intention to make compliance with the Aboriginal Heritage Act 1972 (WA) a condition of the licence. The Government party further advised that the grantee party would be subject to a direction in terms of Government party’s documents 16 and 17 which are the standard directions and Schedule referred to in the next paragraph.
Pursuant to s 95 of the Petroleum Act 1967, the Minister may, by instrument in writing served on the licensee, give to the licensee a direction as to any matter with respect to which regulations may be made under s 153. Typically quite detailed directions are given which require compliance with a Schedule to the directions entitled ‘Schedule of Onshore Petroleum Exploration and Production Requirements – 1991’. The direction, pursuant to s 95(2), also applies to servants or agents of, or persons acting on behalf of the licensee; persons performing work or services, whether directly or indirectly for the licensee; and other persons concerned with the exploration or production of petroleum. The Schedule covers in detail a variety of issues including safety, electrical installations, explosives, drilling and workover, petroleum production, geophysical and geological surveying. Of particular importance to this application are:
Part I – Introductory, Clause 114 - Protection of the Environment. This direction:
· requires all operations to be carried out in a manner that avoids or minimizes any adverse impact on the environment (114(1));
· provides that, unless alternative arrangements are made to the satisfaction of DME, an application to drill or for a production facility must be made 3 months before commencement (or 6 months in an environmentally sensitive area) and be accompanied by a proposal to initiate the environmental impact assessment process under the Environmental Protection Act 1986 (WA) (114(2)); and
· provides that before operations commence, the licences shall have an approved code of environmental practice to protect wildlife, livestock, flora and sites of natural, historical or cultural significance (114(3)(b)).
Part V – Drilling and Workover, Division 1 - General Requirements, Clause 501 – Approval to drill. This direction requires that an application to drill a new exploration or development well must be made not less than three months (six months if an environmentally sensitive area is involved) prior to commencement. Commencement cannot occur without prior approval. The application must contain specific detail of the work proposed.
The environmental protection regime in Western Australia and its current operations in respect of Thevenard Island is considered in more detail below.
The proposed future act
The grant of a petroleum production licence is a creation of a right to mine as defined by the NTA (s 253 defines ‘mine’ as including to ‘(b) extract petroleum or gas from land or from the bed or subsoil under waters’) and is therefore a future act subject to the right to negotiate provisions of the NTA (Part 2, Division 3, Subdivision P (ss 25-44G)). The act cannot be validly done without complying with these provisions. The Production Licence application L1/97-8 covers the existing exploration permit EP65, which encompasses graticular blocks 6236 and 6237 of the Hammersley Range map sheet but does not include the area of those two graticular blocks beyond the mean low water mark of Thevenard Island. Section 26(3) of the NTA provides that the right to negotiate provisions in Subdivision P only apply to the act to the extent that the act relates to a place that is on the landward side of the mean high water mark of the sea. This means that the Production Licence encompasses a greater area than that over which the Tribunal has jurisdiction to make a determination. That is, the Tribunal does not have jurisdiction in relation to the area between the seaward side of the mean high water mark and the landward side of the mean low water mark. This does not mean that the Tribunal cannot consider the effects of the act on the matters referred to in s 39(1)(a) of the NTA if they extend beyond the limits of the parts of the Production Licence over which the Tribunal has jurisdiction provided those effects are caused by the exercise of rights and activities on the parts of the Production Licence over which it does have jurisdiction.
Current proposals of the grantee party
The majority of oil and gas processed at Thevenard Island is sourced from offshore reservoirs and transported to the plant on the island via seabed pipelines. The pipeline infrastructure protection and access to the infrastructure is authorised by the Petroleum Pipelines Act 1969 (WA). Production of the offshore oil and gas is authorised by already granted licences specific to the field from which it derives. In 1994, the grantee party started drilling on Thevenard Island itself, pursuant to Exploration Permit EP65. The purpose of the drilling was to create water disposal reservoirs for the disposal of treated water that could not be pumped out to sea for environmental reasons. The third water disposal well drilled unexpectedly produced commercial quantities of oil and became known as Crest Well 1. These wells were drilled into the Barrow Group Reservoir. When Crest Well 1 stopped producing commercial quantities of oil, two new wells (known as Crest 2 and Crest 3) were then drilled into the Barrow Group Reservoir using the existing well casing at Crest 1 but targeting different underground areas. These wells did not discover any additional reserves and were abandoned. Two other wells at different locations outside the WAPET lease area (called Crest 4 and Crest 5) were drilled to determine the extent of the field accessed by Crest Well 1. These wells did not discover any additional reserves and were abandoned. The grantee party then resumed drilling from the original Crest Well 1 (now known as Crest Well 6) and targeted a different possible reservoir called the Mardie Greensland Reservoir. Small quantities of oil were discovered. Crest Wells 1 to 5 were plugged and abandoned. Crest Well 6 was then run under an extended production test authorised under Exploration Permit EP65, to assess the commercial value of the reservoir. The production tests on the Crest Well 6 were ceased in early October 1998 on instruction of the Department of Minerals and Energy (‘the DME’). The grantee party is not permitted to re-commence flow testing the well until they obtain a production licence under s 54 of the Petroleum Act 1967. At the time production from Crest Well 6 ceased it contributed a very small proportion of the total oil processed on Thevenard Island, however the grantee party asserts it’s right to recover as much of the cost involved in drilling the well (some $2.6 million) as possible. Although market trends fluctuate, Christine Sammut estimates that if the expected 86,000 barrels of oil are recovered, the resulting revenue based on $30.00 per barrel would amount to a gross return of $2,580,000.00 (Sammut Affidavit, p 16).
The only activity currently proposed pursuant to the Production Licence is recommencement of Crest Well 6 production. This simply involves the manual and electronic reopening of various valves on the existing wellhead and does not involve any additional infrastructure or disturbance to land. The existing level of production on Thevenard Island is below capacity and therefore the existing infrastructure can adequately cope with the proposed Crest Well 6 production.
The future intentions of the grantee party
The grantee party’s original application to DME for the Production Licence indicated that there may be drilling in the future depending on the information it obtains from Crest Well 6. On 7 February 2000 WAPET provided DME with updated particulars of work and expenditure proposals for the Production Licence. It said that little work had been carried out on future plans for the Crest field as production could not resume until the Production Licence is granted; and that any potential for increasing black oil recovery from the Crest field would be assessed after further information was obtained following the grant of the Production Licence.
The affidavit of Angus Ruddock, Geophysical Interpreter for Chevron Australia Pty Ltd, the current operator on Thevenard, documents the current position of the grantee party in regard to further exploration activity on the Island. He says there are no current plans to undertake exploration activity by drilling or seismic surveys in the near future. This is on the basis that the grantee party sees little prospectivity in the Production Licence area, based on geological analysis from previous exploration and production drilling and mapping of sub-surface structures using seismic imaging methods. Ongoing exploration activity will be limited to studies aimed at gaining a better understanding of regional and local offshore geological trends. This will involve actual exploration drilling or seismic acquisition in offshore areas pursuant to already granted titles but not on the Island itself. It is possible that these studies will enhance the understanding of regional geological trends including in the area of Thevenard Island. However, at this stage there is no indication that this could result in further work on the island being worthwhile. The other kind of exploration contemplated is to use existing Thevenard Island geological and geophysical databases gathered from previous seismic surveys and bores. This information would be used to assess regional trends, not to look for possible further exploration on Thevenard Island.
He concludes (para 16):
‘It is, therefore, considered very unlikely, based on the present understanding of the prospectivity on Thevenard Island that during the next 2-3 years the grantee party will propose further exploration drilling. Based on this it is therefore equally unlikely that any physical surface disturbance will take place on Thevenard Island following if the production licence the subject of these proceedings is granted.’ [my emphasis]
My finding in relation to this evidence is that the grantee party has no current intentions to use the Production Licence for any ground disturbance on Thevenard Island, but that the possibility of this happening at some time in the future cannot be ruled out. While ground disturbance, at least in the immediate future, is unlikely it is not such a remote or fanciful possibility that it can be ignored for the purpose of my determination. This is particularly so as the Production Licence is granted for a term of 21 years with a right of renewal of a further 21 years. The possibility of future ground disturbance must be weighed with evidence from the native title party on the matters referred to in s 39(1)(a) to see if any ameliorative conditions on the determination are justified.
The grantee party’s proposals if further exploration is carried out
In her affidavit Christine Sammut outlines the procedures that would occur in the event that additional exploration or production activity is undertaken outside of the existing WAPET lease and within the CALM Reserve area. She points out that the necessary approvals and procedures apply equally to the existing exploration permit and that unlike the progression of disturbance from a mining exploration licence to a productive mining lease, most ground disturbance occurs during the exploration phase. For any additional exploration drilling, a drill rig would need to be brought to Thevenard Island by barge. A track to the drill site would be made through vegetation and the rig put in position. All exploration drilling is done vertically as it is a cheaper process, therefore the rig needs to be directly over the sub-surface area being targeted. Typically, the total area of disturbance around the rig would be 55 metres by 25 metres. The typical duration to drill a well is between 2-3 weeks and 30 personnel in total are involved. The actual well bores are approximately 12.23 inches in diameter at surface level, narrowing to about a 6 inch diameter bore sub-surface. If the well did not produce commercial accumulation of oil, the well shaft would be plugged and abandoned as happened with several of the previous Crest wells. Rehabilitation is largely successful, such that on Thevenard Island, previous abandoned and plugged wells are expected to become indistinguishable from surrounding vegetation within a matter of years. (Thevenard Island Terrestrial Environmental Monitoring 4th Triennial Report 1998-2000 annexed to the Fritz Affidavit, p 320.). Alternatively, if there were sufficient reserves, the grantee party has the technical options of: accessing the oil accumulation by a deviated well drilled from the existing WAPET lease area and accessed through a wellhead physically located on the lease; or by turning the exploration well into a productive one. In this latter case a wellhead would remain on the Reserve and an area of some 6 metres by 6 metres around the wellhead would be fenced off for safety reasons. In addition a 6-inch diameter flowline would need to be laid upon concrete supports above the ground surface to connect the new wellhead with the existing processing facilities. The wellhead would require weekly checks by the operator who would access it by a new access track. Any new personnel required for additional projects would be accommodated at existing backup accommodation on the Mackerel lease. Apart from the need for a wellhead, flowlines and track to remain in place after the exploration process, the only significant difference between a petroleum exploration permit and production licence is that royalties must be paid to the Government when the grantee is flowing the well under a production licence. In practical terms, exploration for petroleum causes more impact to ground surface than facilities for production.
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
The Thalanyji native title claim WC99/45 was registered on 7 February 2000. The external boundaries encompass a large area of north-west Western Australia including the Onslow townsite and extend offshore to include Thevenard Island. The Register of Native Title Claims records that:
‘The native title rights and interests claimed are the rights and interests as against the whole world (subject to any native title rights and interests that may be shared with any other persons who establish that they are native title holders) in particular comprising:
a)rights and interests to possess, occupy, use and enjoy the area;
b)the right to make decisions about the use and enjoyment of the area;
c)the right to access the area;
d)the right to control the access of others to the area;
e)the right to use and enjoy resources of the area;
f)the right to control the use and enjoyment of others of resources of the area;
i)the right to maintain and protect places of importance under traditional laws, customs and practices in the area; and
j)the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.’
These identified interests apply to the claim area generally. For the purposes of this inquiry, I must assume that these are the rights and interest that could potentially be affected. However, it is ordinarily the responsibility of the native title party to produce evidence of how these registered rights and interests are enjoyed and exercised so that the Tribunal can consider the likely impact of the future act (WMC Resources Ltd/State of Western Australia/Evans (NNTT WF99/4, 23 December 1999 at p 10-11)). While the Tribunal may conduct its own enquiries, as a matter of general practice it will not where the parties are represented before the Tribunal. There is no onus of proof on any of the parties although parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge (Waljen at 162).
Will native title be extinguished by the grant of the Production Licence?
The native title party contended, as it did throughout the good faith hearing, that any native title rights and interests on Thevenard Island may be extinguished by the grant of the Production Licence based on their interpretation of the judgement of the Full Federal Court in Western Australia v Ward [2000] FCA 191; 99 FCR 316; 170 ALR 159 (native title party contentions at paragraph 5). It said there was a ‘real risk’ of extinguishment which must be taken into account. It contended that a petroleum production licence is an exclusive tenure except for limited rights of others holding an access authority and this created rights in third parties which are inconsistent with the continued right to enjoy native title. Ward held that Western Australia mining leases issued under the Mining Act 1978 had extinguished native title as being inconsistent with the co-existence of native title. The native title party contended that the reasoning which lead to the Federal Court to find extinguishment of native title by grant of a mining lease also applied to a petroleum production permit. They referred to a High Court decision which considers a petroleum production licence granted under the Petroleum (Submerged Lands) Act 1967(Cth). In that matter, Justice Gaudron noted that (at paragraph 80):
‘An exploration permit confers a licence which for practical purposes is an exclusive licence to explore for petroleum, and to carry on such operations and execute such works as are necessary for the purpose, in the permit area’. (The Commonwealth of Australia v WMC Resources Ltd (1998) HCA 8)
On this basis, they assert that the Production Licence, like the mining leases considered in Ward, grant exclusive rights which are wholly inconsistent with and therefore extinguish native title rights and interests.
The Government and grantee parties refute this last contention. As emphasised by counsel for the Government party at the good faith hearing (Mr Wright at p 122 of the good faith hearing Transcript), the Ward case deals with historical leases and the impact of the grant of certain leases on native title rights at common law. Even so, it contends that a mining lease is distinguishable in important respects from a petroleum production permit and that application of Ward principles would not result in a finding of extinguishment in the latter case because a petroleum production permit does not confer exclusive possession rights of the kind held to extinguish native title in Ward. I agree with the Government party’s contention that the judgement in Ward applies to the effect of historical grants under common law. However, whatever the position at common law in relation to the extinguishing effect of mining leases or petroleum production licences granted prior to commencement of the NTA, I also accept the Government party’s contention that the NTA now determines the issue. The future act under consideration is clearly subject to the statutory regime of the NTA which provides that the non-extinguishment principle applies to it (ss 24MD(3)(a), 238). The High Court in Western Australia v Commonwealth (The Native Title Act Case) 1994-1995; 183 CLR 373 (at 458) said that where the non-extinguishment principle operates native title is not extinguished but merely suspended so far and for so long as is necessary to allow the future act to operate and have effect. Under the new NTA the sections dealing with extinguishment of native title were recast. Section 24MD(2) now specifically provides that native title is extinguished by a future act which compulsorily acquires them, whereas in the case of other future acts (including grant of a petroleum production licence) the non-extinguishment principle applies. In my view native title will not be extinguished by the grant of the Production Licence and the determination is made on that basis.
Native title and the existing interests on the eastern end of Thevenard Island
The Tribunal is only entitled to make a determination in relation to a future act which, by definition (s 233(1) NTA), is one which affects native title. Where native title has been extinguished the Tribunal does not have jurisdiction to make a determination (Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467; Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People), NNTT WF00/2, WF00/3, WF00/4 & WF00/5, Hon C J Sumner, Mr J Sosso and Ms Jennifer Stuckey-Clarke, 8 December 2000). Previously granted interests on Thevenard Island may have extinguished native title or otherwise impacted on aspects of the registered native title rights and interests either at law or in practice. The effect of the act under consideration (the grant of the Production Licence) must be considered in that context. It is also obvious that the Tribunal is only concerned with the effect of the grant of the Production Licence including the rights exercised and activities conducted under it. The Tribunal is not concerned with previous interests which have been granted except to the extent that they have extinguished or otherwise affected native title (s 39(2) NTA).
The following is the situation with respect to native title and the existing interests over the eastern end of Thevenard Island.
Mackerel Island Pty Ltd special leases: Special Leases 3116/9594 (tourist facility) and 3116/9596 (airstrip) to Mackerel Island Pty Ltd are specifically excluded from the registered native title claim (Section B(3)(iii)) and hence are of no relevance in these proceedings.
Unallocated Crown Land: There is a small area of unallocated Crown land which lies adjacent to Special Lease 3116/9594 between the high water mark and the low water mark. The Tribunal has no jurisdiction to make a determination specifically in respect of this area and there is no evidence to suggest that any activity carried out under the Production Licence will affect any native title rights which may exist over it.
Thevenard Island Nature Reserve (Reserve 33174): This ‘C’ Class Reserve was created on 14 March 1975 for the purpose of the conservation of flora and fauna. It was vested in the National Parks and Nature Conservation Authority on 29 April 1988. Colloquially it is know as a Conservation and Land Management Department (‘CALM’) Reserve.
The WAPET Lease: The WAPET Lease comprises some 25 hectares and adjoins the Mackerel Island special leases. It was granted on 8 July 1988 under s 17 of the Petroleum Pipelines Act 1969 which empowers a public authority to grant a lease to construct a pipeline and operate, inspect, maintain and repair that pipeline. The lessor was the Director General of the Department of Land Management (a body corporate under s 38 of the Conservation and Land Management Act 1984), because at the time he was the relevant ‘public authority’ (referred to in the Petroleum Pipelines Act) with responsibility for the care and management of Reserve 33174 notwithstanding it was vested in the National Parks and Nature Conservation Authority. Although this lease is not specifically referred to in it, the registered claim excludes areas the subject of a previous exclusive possession act or where native title rights and interests have otherwise been extinguished (Section B(2) and (3)). The Government and grantee party contended that native title over the area of this lease had been extinguished as it was a previous exclusive possession act (s 23B NTA) over which native title was confirmed to have been extinguished by the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (s 121). In the alternative, they contended native title had been extinguished by operation of the common law (Western Australia v Ward (2000) 170 ALR 159). The Government and grantee party further contended that the use to which the WAPET Lease has been put was permanently inconsistent with the continued existence of native title and for this reason is also excluded from the registered claim (Section B(3)(ii)).
The WAPET Lease area contains a number of wellheads for the Saladin oil field where the wellhead is on Thevenard Island but rather than the wellhead being connected to a reservoir underneath Thevenard Island it is connected to a reservoir in offshore waters which is accessed by a directional underground drill. The Saladin and certain other fields are also exploited through offshore platforms with pipelines running along the seabed onto Thevenard Island and then to the processing plant. There are also the wellheads for Crest Well 6 and water disposal wells. The processing plant on the WAPET Lease receives fluid from a number of offshore wells. This is separated (gas, oil and water); some of the gas is compressed and reinjected underground to minimise the amount of gas which is flared; the water is disposed of; and the crude oil initially stored in tanks. It is then transported via pipelines some six kilometres offshore to tankers which berth at a buoy mooring. Gas which is of sufficient quality is also exported via a pipeline part of which is on the WAPET Lease. In addition, there is a jetty, a residential camp, a flare, flare pit, a production office and control room, a sump and bunded area. There are also some areas of dunes and vegetation. I have no hesitation in finding that the WAPET lease is for all practical purposes intensively devoted to production and associated facilities for oil and gas which at present is sourced from reservoirs situated offshore.
In my view the Government and grantee parties contentions are likely to be right in that for one or other of the reasons specified above, the WAPET Lease has been excluded from the native title claim. However, whatever the technical legal position there is no doubt that the activities currently performed on the WAPET Lease have so adversely affected the enjoyment of any native title rights that the grant of the Production Licence is not likely to have a further adverse impact on them. I have concluded that the grant of the Production Licence will have no practical effect on any native title rights (even assuming they have not been extinguished) which may exist over the WAPET Lease areas. For this reason any conditions to be imposed will only relate the balance of the Island (that is, outside the area of the Makerel Island Pty Ltd and WAPET Leases). The pipeline and storage facilities on the WAPET Lease are authorised by a petroleum pipeline licence issued under the Petroleum Pipelines Act. As they do not confer any actual rights or interests in land the grant of the licence itself does not at law affect native title. However, for the reasons stated above, the activities undertaken pursuant to the licence are in fact inconsistent with the existence of native title and certainly mean that they are incapable of enjoyment in any practical sense.
Native title on the balance of Thevenard Island
Thevenard Island Nature Reserve (Reserve 33174): The Government and grantee party contended:
any native title right to take fauna on parts of Thevenard Island covered by the Reserve had been extinguished (WA v Ward (2000) 170 ALR 159 at [493]-[496] and [504]); and
by virtue of the Conservation and Land Management Act 1984 and the Wildlife Conservation Regulations 1970 any exclusive right to possess, occupy, use and enjoy the nature reserve (registered right (a)) and any right to control the access of others to the nature reserve (registered right (d) have been extinguished (Ward 506-508).
On the approach which I have taken to this matter, there is no need to make a decision on these contentions. Even if the registered native title rights and interests claimed were not affected by this prior interest my determination would have been the same in relation to the balance of the Island.
Petroleum Exploration Permit EP65: The balance of the Island is also subject to petroleum exploration permit EP65 which was originally granted in 1971 and has been renewed through to 11 September 2002. Native title will not have been extinguished by the grant, but has been the subject to the exploration rights granted since 1971.
The grantee party contended that land disturbance caused during petroleum exploration is far greater than what occurs at the production stage (see discussion above). It then said that the proposed future act (the grant of the Production Licence) would not grant any new rights to explore beyond what is already permitted under the exploration permit. It contended that the present grant will not permit disturbance beyond that which is already permitted by the exploration permit and it therefore is untenable to suggest that there could be an effect on native title from the grant of the Production Licence beyond what is already permissible or which has already occurred under the exploration permit. I cannot accept this contention. The rights given to a production licensee include the right to explore (s 62 Petroleum Act). The level of disturbance permitted by an exploration permit is also permitted by a production licence and the Tribunal is entitled to assess any effect on native title rights and interests taking this into account. At law the fact that the same level of disturbance is permitted under an already existing exploration permit is irrelevant. The grantee party’s contention could only be accepted if the grant of the exploration permit was permanent and not subject to renewal. It is not and for that reason I consider that the effect of the grant of the Production Licence must be considered without taking into account whether the rights granted are effectively the same as those granted under an exploration permit. In a particular case the activities carried out under a prior exploration permit may have in practice impacted on the manner in which native title rights and interests are exercised and therefore be relevant to the effect of any supervening title. However, in this case, there is no evidence that activities conducted under the exploration licence outside the WAPET Lease area have had any effect on the registered native title rights. I note that Crest Wells 4 and 5 which were drilled outside the WAPET Lease have largely been rehabilitated to their original state.
Evidence of native title rights and interests
The evidence which relates to the existence and enjoyment of native title rights and interests on Thevenard Island can be summarised as follows:
The affidavit of Brian Hayes, a Thalanyji person, dated 21 September 1999 filed in the Federal Court in support of the native title party’s application to combine its claims (Government party document 10). Mr Hayes said that he maintains his connection to Thalanyji country and to the islands in the claim area. These islands, particularly Thevenard and Ashburton are of spiritual significance to the Thalanyji People. Mick Fazeldean had passed on knowledge of the islands to him and Les Hayes. Mick Fazeldean told him that turtles used to nest on Thevenard Island and that Thalanyji people would go there to camp and hunt turtles. Mr Hayes says Mick Fazeldean had told him how to collect shellfish and turtles. He says that he continues to use the resources of the sea to feed his family although he does not depose specifically to catching turtles on Thevenard Island. Mr Hayes says that he has visited ‘these islands’ (including Thevenard) and continues to take his children on fishing trips to the island by boat and hunting trips in Thalanyji country to teach them his knowledge of Thalanyji culture in the same manner as his parents taught him. He further deposes that his parents told him of the Wanamangurra water/rainbow serpent which lives in the Ashburton River on the mainland.
The affidavit of Leslie Hayes, a Thalanyji person and an elder lawman, dated 25 June 1999 and filed in the Federal Court in support of the native title party’s application to combine its claims (Government party document 10). Mr Hayes deposed that Mick Fazeldean told him that the islands ‘on the Peetamulla side’ were of special importance to the Thalanyji People; that Ashburton River is associated with the water snakes/rainbow serpent known as Wanamangurra; and that decisions relating to sacred or spiritual places on Thalanyji land are the responsibility of Thalanyji Elders and must be made by Thalanyji Elders.
Affidavit of Trudy Hayes dated 27 February 2001 and filed in the Tribunal for the purposes of the good faith hearing. Ms Hayes said there were culturally sensitive issues in relation to Thevenard Island and that it was significant to Thalanyji People. The spirit of the water serpent resides there and protects them. Thevenard Island is sacred. The traditional custodians are responsible if the spirit is disturbed and sickness may result.
Evidence of Trudy Hayes at the good faith hearing on 1 March 2001 (Transcript p 93). Ms Hayes testified that Thalanyji People had not been able to access Thevenard Island for a number of years. She explained that the reason for this was that in the past Aboriginal people needed permits to travel. As a result older people have been conditioned to think that it is still the case that they are restricted to certain areas. It was difficult for the older people to go to Thevenard Island and to take their children there for cultural purposes.
Schedule to the native title party’s contentions and unexecuted affidavit of Albert Hayes. The native title party attached Schedule 1 to its contentions which purported to be an ‘Impact Statement’. This document describes the water serpent (Wanamangurra) dreaming which is stated to live under Thevenard Island and move around the surrounding area on both land and sea. The dreaming is attributed with bringing water to dried out pools; protection against natural disasters; and being the bearer of such catastrophes when the Thalanyji have neglected their traditional responsibilities to country. The affidavit states that the Thalanyji people believe the granting of the Production Licence will disturb the water serpent and cause dire consequences for the health of the people and environment. They also claim the traditional social organisation of the native title claimants will be disrupted if such consequences occur because the family that is primary custodian for Thevenard Island (the Fazeldean family) will be held accountable.
When filed the document was not in a form which I was prepared to receive in evidence without the consent of the other parties which was not given. This was pointed out to Ms Bruce at the Listing Hearing and the Tribunal directed that the native title party was required to resubmit Schedule 1 in the form of a sworn affidavit. This direction was conveyed to Ms Bruce by facsimile letter on 3 May 2001.
On 10 May 2001, an unexecuted affidavit from Albert Hayes was filed with the Tribunal purporting to depose to matters in similar terms to the ‘Impact Statement’. The Tribunal was informed that the affidavit would be affirmed and filed at a later date. At the time of making this determination it has not been received. Albert Hayes is described as a Thalanyji elder who is authorised to speak about the traditional Aboriginal dreaming connected with Thevenard Island.
The Tribunal must act on probative evidence. I agree with the Government and grantee party’s submission that the ‘Impact Statement’ or draft affidavit ought not be received in evidence or relied upon in these proceedings in the absence of some verification of it through oral evidence or at least a properly affirmed affidavit. The native title party was placed on notice of the difficulties which the Tribunal had in receiving this evidence in the form originally submitted but did not rectify the position. The Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109(3) NTA) and technically could receive these documents. Despite this provision, in the circumstances, where the matters deposed to were in dispute, I was not prepared to receive them as evidence and even if I did would have given them little weight. I have, therefore, not had regard to the ‘Impact Statement’ or draft affidavit of Albert Hayes in making my determination. However, for the reasons specified below my determination and conditions would have been no different had this evidence been properly before me.
The Government party objected to the receipt of the Albert Hayes affidavit after the time for filing contentions and documents had passed. My ruling was that I would receive an affidavit (properly executed) after the date for submissions (and indeed after the Listing Hearing) provided it was in substantially the same form as the ‘Impact Statement’. I have emphasised in the past and do so again, that these proceedings are not meant to be conducted in the adversarial manner of a Court. Of course, directions should be complied with on time and the proceedings must eventually be brought to a close. However, in this case where the six month time limit in s 36(3) of the NTA had not expired and there may have been relevant evidence submitted after the time for doing so had expired which could impact on a decision and the justice of the case, then it was appropriate for the Tribunal to receive this evidence, subject of course to according procedural fairness to the other parties. In the event this was not necessary as the evidence was not filed in an acceptable form.
Evidence of WAPET employees. In her affidavit filed for the purposes of the good faith hearing Christine Sammut said that there were no Aboriginal communities living on Thevenard Island and that as far as she was aware no Aboriginal people visited the Island. She had been the Production Supervisor on Thevenard during 1998 and 1999 working a two week rotation shift and had other involvement since 1996.
The Bindon Report. On 6 February 1987, Peter Bindon (who I presume is a qualified archaeologist) provided a Report entitled ‘Archaeological Investigations of Thevenard Island, Onslow’. It was prepared for WAPET for the purpose of environmental compliance in connection with the Saladin oilfield development (oil from this source is processed on Thevenard). In the report Peter Bindon refers to a previous work by T. MacCourt which was published in 1975 and referred to a finding of some Bailer shells in a shell midden. Both authors ultimately concluded that it was unlikely these shells were in fact Aboriginal in origin and were more likely to have been introduced by sea voyagers stopping at the island.
Mr Bindon’s conclusions were:
‘(1)There are no remaining traces of any occupation of Thevenard Island by Aboriginal groups.
(2)The geomorphic history of the formation of the island precludes occupation of Thevenard during more remote periods of time.
(3)No Aboriginal interest in Thevenard island was discovered amongst Aborigines currently resident in Onslow.
(4)Aboriginal voyages to the island in pre-European times seem unlikely, given both the age of the island and the sea conditions in this area.
(5)It is likely that the shell dishes found on the island have a modern origin, being manufactured from old shells, or are the result of natural weathering processes. It is not possible now to establish their origin any more clearly.’
The native title party contended that this report was flawed as the Thalanyji people were not spoken to by Mr Bindon. There is no record in the report of which Aboriginal people Mr Bindon spoke to and thus, on the evidence, is impossible to draw any firm conclusions on whether proper consultations were carried out. Nevertheless, Conclusion (3) clearly indicates that some consultation with Aboriginal people occurred and were factored into Mr Bindon’s findings.
Conclusion on the effect of the act on registered native title rights and interests
Leaving aside the question of the Wanamangurra dreaming and the significance of Thevenard Island as a site or area, I have no hesitation in finding that the proposed act will have at worst only a minimal effect on the enjoyment of the registered native title rights of the Thalanyji people. At best the evidence demonstrates that currently there is very occasional resort to the Island for fishing and teaching of culture purposes. The nature of petroleum exploration and production is such that the permanent impact on the Island generally and the enjoyment of native title rights in particular is likely to be minimal.
The more difficult issue is whether the whole of Thevenard Island is an area or site of particular significance to the Thalanyji People. The existence of the Wanamangurra serpent dreaming in connection with the Island would suggest it is. The manner in which the evidence relating to this issue has been dealt with during the negotiations and arbitration is somewhat unsatisfactory. Although reference was made to it in Brian and Leslie Hayes’ affidavits filed in the Federal Court, it was not referred to formally during any of the negotiations. Trudy Hayes says she spoke to Zuwa Omoregie (WAPET’s negotiator) about it during informal discussions (p 83 – good faith hearing transcript). He denies that she made reference to the Wanamangurra dreaming but says she made some mention of hunting and fishing but gave no information about any spiritual connection with the Island. What can be said with certainty is that the issue was not formally raised during the negotiations by either the Thalanyji negotiators, or their legal representatives. At the good faith hearing Trudy Hayes said that Aboriginal people had concerns about discussing issues of a spiritual nature with non-Aboriginal people, but conceded that these concerns were never taken up with Mr Omoregie. Proposals to deal with these sensitivities do not seem to have been raised in any formal context by Thalanyji legal representatives. The Tribunal is entitled to be concerned about accepting evidence of the Wanamangurra dreaming when it does not seem to have been a major issue of concern to Thalanyji people during the course of the negotiations. The failure to produce further evidence of it in an acceptable form during the hearing reinforces this reluctance. However, despite these concerns (and excluding from consideration the ‘Impact Statement’) the Tribunal has before it some evidence that Thevenard Island is a place or area of spiritual significance to the Thalanyji people in that the dreaming story of the Wanamangurra serpent in relation to the mainland at Ashburton River extends also to Thevenard Island. The material in the ‘Impact Statement’ and Albert Hayes’ draft affidavit, if relied on, would have corroborated the evidence from Brian Leslie and Trudy Hayes of the Wanamangurra dreaming but would not have resolved the issue. While the evidence before the Tribunal was not directly contested by either the Government or grantee party, clearly the Bindon Report calls it into question.
In the circumstances, I am not prepared to make a positive finding about whether Thevenard Island is an area or site of particular significance to the native title party. On the other hand I cannot ignore the possibility that the Wanamangurra dreaming story does extend to Thevenard Island and this may be more clearly established in the Federal Court claim proceedings. I have decided that the question of the particular significance or otherwise of Thevenard Island to the Thalanyji People can be left for consideration under State legislation if application is made to use the Production Licence for exploration or construction of extraction facilities (which is by no means certain). The Production Licence will contain an endorsement drawing the grantee party’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA). The Aboriginal Heritage Act applies to all sites whether on the Register or not. Through these proceedings the grantee party is aware of the evidence relating to the Wanamangurra dreaming. In these circumstances, any defence available under the Aboriginal Heritage Act (s 62) for interference with a site is unlikely to be available to it. A condition which gives the native title party notice of any proposal for further exploration or construction of production facilities will ensure that the native title party can utilise the provisions of State legislation to pursue the issue of the significance of Thevenard Island and other concerns it may have about the potential effect of the proposal on the matters referred to in s 39(1)(a) of the NTA. I acknowledge that the Aboriginal Heritage Act does not provide complete protection for sites or areas of significance in that the Minister can authorise interference with them. There may be circumstances where it is not appropriate, on the evidence before it, for the Tribunal to rely on the provisions of State legislation to address s 39(1)(a) issues, including those in s 39(1)(a)(vi) relating to sites of particular significance. However, the likely minimal effect that any exploration or production facility will have on native title rights and interests and the state of evidence about the special significance of the Island makes a notice condition and reliance on State legislation appropriate in this case. For these reasons I also do not consider it necessary to require the Government party to make compliance with the Aboriginal Heritage Act a condition of the grant.
Section 39 (1)(a)(ii) - way of life, culture and traditions
There is no Aboriginal community living on Thevenard Island and the frequency and purpose of any visits has been considered above. Apart from that described above under s 39(1)(a)(i) there was no evidence of the effect of the grant on this factor.
Section 39(1)(a)(iii) - development of social, cultural and economic structures
The native title party has not submitted any evidence specific to this criterion which is not recorded under s 39(1)(a)(i). There is a general assertion that the grant would further erode Thalanyji culture. My finding is that the grant is unlikely to have any effect on the social, cultural and economic structures of the native title party, except possibly in relation to the Wanamangurra water serpent dreaming which I have dealt with above.
Section 39 (1)(a)(iv) - freedom of access – freedom to carry out rites, ceremonies and other activities
There is no evidence of any access by the native title party for the purpose of conducting any rites or ceremonies. With respect to other activities the evidence is very limited. At best it points to a few of the native title party group visiting the island for the purpose of fishing and transmission of culture. The current proposal to re-open Crest Well 6 will have no repercussions for access on the Island as the only access restrictions imposed by the grantee party are directed to their own staff. The only potential impact on native title party access to the Island would occur if further exploration activity were undertaken. This would result in some restrictions for a limited time around the drill site and also a fenced off area of approximately 6 metres square for the life of the well, should a wellhead be installed on the Reserve. Otherwise, the native title party would need to abide by any access authorities regulated by CALM.
Section 39(1)(a)(v) – areas or sites of particular significance
There is one site on the Interim Register kept by the Aboriginal Affairs Department classified as a midden which is presumably the shell scatter referred to in the Bindon report. There seems to be a discrepancy between the description of the site location on the Interim Register and the physical location identified by employees of the grantee party and the Register itself describes the information as unreliable. In any case, there has been no mention of the site throughout the evidence of the native title party and nothing to suggest that it is a site of particular significance to them in accordance with their traditions. The grantee party is aware of the obligations under the Aboriginal Heritage Act. It intends to undertake further work to more precisely locate this site and if ground disturbance on Thevenard Island is proposed will conduct a further archaeological survey. There is nothing in the evidence to suggest that a condition relating to a site survey should be imposed by the Tribunal. The evidence relating to the Wanamangurra water serpent dreaming has been dealt with above under s 39(1)(a)(i).
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party
In the good faith hearing Trudy Hayes said that the native title party did not want to be restricted forever from visiting the Island in future and renewing cultural ties (Transcript 1 March 2001 at p 99). This concern is addressed by a condition securing access for the native title party to the island except for the WAPET/Mackerel Lease areas. Apart from the wish for access, the native title party’s position in relation to this criterion is reflected in its contentions and proposed conditions. These are considered below.
Section 39(1)(c) - economic or other significance
On the current evidence, the economic significance of the grant itself is not likely to be great. However, I accept that it will assist the economics of the grantee party’s overall production from the existing facilities on Thevenard Island in that there is need to exploit the remaining resources to avoid these facilities becoming a declining asset; and will assist in the recovery of the exploration costs of some $2.6 million. It will also result in some royalties being paid to the State. Insofar as the grant is used to reactivate Crest Well 6, this in itself will have no effect on native title rights and interests. There is no basis for giving any adverse weight to the fact that the economic significance will not be great in respect of the grantee party’s current intentions. Otherwise the economic or other significance of the grant is that it will allow exploitation of the Mardie Greensland reservoir under Thevenard Island either through the Crest Well 6 or possibly by further exploration and recovery operations on the Island.
Section 39(1)(e) - public interest.
There is a public interest in the maintenance of a viable petroleum industry in Western Australia (Evans v Western Australia (1997) 77 FCR 193 at 215; Western Australia v Thomas (1996) 133 FCR 124 at 175) and the grant of the Production Licence contributes to that in a general sense. There are no countervailing public interest or other factors in this case which would reduce the weight to be given to the importance of facilitating the orderly and properly regulated grant of petroleum titles.
Section 39(1)(f) – any other matter that the arbitral body considers relevant
Environmental Protection
The Tribunal is entitled to take into account environmental protection measures which relate to the factors specified in s 39(1)(a) (WMC Resources Ltd/Western Australia/Evans (Koara), NNTT WF99/4, Hon C J Sumner, 23 December 1999 at 11, 28). A comprehensive environmental protection regime is already in place on Thevenard Island and will also apply to the Production Licence. I have already dealt with the conditions to be imposed on the grant and the Ministerial directions to comply with the Schedule of Onshore Petroleum Exploration on Production Requirements – 1991. In addition s 117 of the Petroleum Act requires operations to be carried out in a manner that does not cause interference to the surface of the land or the conservation of the resources of the soil or the Earths crest to a greater extent than is necessary for the reasonable exercise of the rights given.
The States’ environmental protection regime has been described in Koara No.2 (at pp 23-27) and I adopt those findings. Depending on the nature of the proposal the applicant for a petroleum production licence must obtain the necessary approvals from the Department of Environmental Protection (‘the DEP’), including conducting an environmental assessment through impact statements if required. Under the Environmental Protection Act 1986 (WA) an independent statutory authority, the Environmental Protection Authority (‘the EPA’), is given responsibility for protecting the environment. It works in close cooperation with the DEP, which in practice does most of the EPA’s administrative work. Environmental conditions are imposed in consultation with DME, which is also responsible for monitoring compliance. A detailed Environment Management Program has been developed between DME, CALM and DEP for the grantee’s operations on Thevenard Island in respect of the Saladin and other oil field developments. It will be applied to any operations under the Production Licence. Further, in the present case, as Thevenard Island is a ‘C’ Class Conservation Reserve for the preservation of flora and fauna, there are additional regulations under the Conservation and Land Management Act 1984, the Conservation and Land Management Regulations and the Wildlife Conservation Regulations 1970. Ground disturbance cannot be commenced until formal written approval is obtained from the Minister for Mines who must consult with the Minister for the Environment and conditions may be imposed (s 15A(3) and (4) Petroleum Act 1967).
The Environment Management Program summarises the CALM conditions in respect of the WAPET Lease which are issued as guidelines to staff. The following are examples of some guidelines relating to environmental protection:
WAPET will comply with all State and Federal Acts including the Conservation and Land Management Act 1984 and the Wildlife Conservation Act 1950.
WAPET will avoid and prevent the uncontrolled escape of petroleum or any other dangerous or inflammable liquid from the company operations. Any leak or spill shall be cleaned up and rehabilitated to the satisfaction of CALM and DME.
WAPET will comply with the Environment Management Plan.
WAPET will comply with the Australian Petroleum Exploration Association Code of Environmental Practice.
No vehicle will be used or operated on Thevenard Island outside the boundaries of the WAPET Lease without CALM approval, except for the purposes of cleaning up an oil spill or fighting a fire.
A decommissioning and rehabilitation plan shall be submitted to CALM 12 months prior to WAPET leaving the island.
All holes and excavations shall be filled in and consolidated by WAPET as part of decommissioning.
All rubbish shall be removed from the lease as part of decommissioning.
WAPET staff may enter the Nature Reserve for purposes of biological studies, environmental monitoring and for certain recreation only.
All WAPET staff shall be trained in environmental matters.
To implement the above conditions and general good practice, there are protective mechanisms implemented through internal company policy relating to Thevenard Island management. These include both restrictions on personnel access and behaviour and rehabilitative procedures post-exploration. For example, Christine Sammut provides details in her affidavit, of transects across the Island connecting observation points used to monitor ground water, fauna and flora (paragraphs 15-18 of the Sammut affidavit). The goal of the grantee party is to rapidly rehabilitate and maintain the ecological standard in disturbed areas, such as to be indistinguishable from undisturbed sites within a matter of years. The grantee party employs an environmental consultant firm, Astron Environmental, to conduct these studies and report back to the grantee party.
In addition to the original approvals required for both the grant of exploration and production tenements and the general regulatory regime, each new project requires specific approvals. New projects must comply with:
the project specific environmental management strategy;
the Environmental Management Program TVI Region routine operations;
conditions of approval set out by DME, DEP and CALM;
ministerial conditions; and
company commitments.
An example of company policy, should there be any new disturbance (whether through exploration, production or other ongoing operations) outside of the WAPET Lease, is outlined in an internal memoranda stating that;
the site be delineated;
archaeological survey be conducted by an independent consultant;
any sites or artefacts be reported under s 15 of the Aboriginal Heritage Act 1972; and
efforts be made to avoid disturbance in the first instance or seek consent to do so under the Aboriginal Heritage Act if necessary. (Appendix SJF 7 of the Fritz affidavit at p 323).
The Government and grantee parties contended that these safeguards to minimise any impact from further ground disturbance means that there is no need for the Tribunal to impose further conditions in respect of them. I accept this contention in this case particularly given the limited evidence of the existence and enjoyment of native title rights on the Island. Should any exploration or recovery facilities be proposed outside the WAPET Lease area there are detailed environmental procedures which will assist to minimise any impact on any native title rights which are exercised on the island. As a result of this hearing the native title party is fully aware of what activity may occur on the Island and fully aware of the existing legislative and other protective measures which are in place. If a proposal is made for ground disturbing activity outside the WAPET Lease, the notice conditions which I intend to attach to the determination will mean that the native title party can assess the proposal and activate any concerns through the existing State regulation process. This approach may not be sufficient protection in all cases but on the evidence in this case it will be.
Under this criterion the Tribunal is entitled to have regard to the interests of the grantee party and take into account that expenditure was incurred pursuant to an exploration permit which gave it rights to be granted the Production Licence (Koara No.1 at 98).
Native title party’s proposed conditions
The native title party proposed a number of conditions which I summarise and comment on as follows.
Consultation/Notice of future activities: The native title party proposed that it be given notice of any activities proposed by the grantee party so that it could be given the opportunity to make submissions to it and any relevant State bodies in respect of the possible impact of the activities. It wanted the opportunity to visit the island and communicate with the water serpent prior to any such activity being carried out. It also required the grantee party to take into account reasonable directions of the native title party as to means to avoid or limit interference with sites of significance and the spiritual connection (such as the dreaming); or as to the rehabilitation of the flora/fauna habitat or environment. For the reasons specified above I consider that a provision requiring the grantee party to give notice of its future activities is warranted but that there is no basis for a grantee party to be subject to any directions of the native title party. The grantee party would be subject to any State legislation, regulations and directions given by the Government party including those applicable under its environmental protection regime.
Liaison Committee: The native title party proposed a Liaison Committee comprising at least two people nominated by them and two people nominated by the grantee party to provide a forum for exchange of information and to coordinate a cultural awareness training program. In my view there is insufficient evidentiary basis in this case to justify the establishment of a Liaison Committee. The native title rights and interests exercised in relation to the island are limited and even if exploration or productive activity disturbance eventuates the impact of it will not be great. Apart from the temporary personnel on site for a limited time during exploration, there is unlikely to be additional staff employed as a result of the grant of the Production Licence. Any additional resource will be processed through the existing facilities.
Cultural Awareness Program: For similar reasons to those in relation to the Liaison Committee I don’t consider that a Cultural Awareness Program is warranted in this case. The grantee party may consider it appropriate to institute such a program as part of its induction program for its employees but the evidence does not justify a condition requiring such a program to be developed.
Heritage Survey - Protection of Sites of Significance: The native title party proposes that the grantee party should be prohibited from conducting any exploration, mining or production activities on Thevenard Island until it has first caused a heritage survey to be conducted involving representatives of the native title party and anthropologists and archaeologists to be nominated by them. There should be a prohibition on exploration, mining producing operations on sites indicated by the survey except with a written consent of the native title party. I have dealt with this proposed condition above and for the reasons specified do not consider that such a condition is warranted on the evidence in this case.
Access: I have agreed to a condition relating to access.
Employment and Training Opportunity; Business and sub-contracting opportunities: The native title party proposed that the grantee party establish and maintain a recruitment and training policy and program with a view to providing employment for members of the native title party or in the alternative that financial assistance be provided to them for training and education. I agree with the grantee party’s contention that a condition of this kind would be inappropriate given the evidence that any staff on the Island beyond those already employed pursuant to previously granted titles would be small. There are not the wide variety of employment and sub-contracting opportunities which might be available on a large scale mining project. There is also no evidentiary basis for the native title party to seek unspecified financial assistance for training and education.
Notice: I propose to impose a condition requiring the grantee party to provide the native title party with the details of the grant of the petroleum licence, including conditions and endorsements.
Conclusions and Conditions
The Tribunal’s task is a discretionary one that involves weighing the various criteria in s 39 on the basis of the evidence before it (Waljen at 165-166). The Tribunal does not look at the grant from a ‘worst case’ scenario whereby it would consider the impact on native title rights and interests if the greatest level of disturbance authorised by the grant should occur, assuming that all registered native title rights were exercised and enjoyed in full (Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon C J Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’) at 30-31; WMC Resources Ltd/Western Australia/Evans (Koara), NNTT WF99/4, Hon C J Sumner, 23 December 1999 at 11). The Tribunal must consider the evidence of what the grantee party proposes to do and then how that will affect the matters of interest to the native title party in s 39(1)(a). In this case the Tribunal knows what the grantee party initially intends to do (ie reflow Crest Well 6). It also knows what is involved if further exploration or recovery operations are undertaken. What it doesn’t know with certainty is whether this will happen.
The evidence of the exercise of native title rights is very limited such that there is no case for a determination that the act may not be done and only minimal conditions are warranted. The native title party has expressed a desire that access to the Island not be restricted. The grantee party does not intend to do this and the Government party would only do so in pursuance of the obligation in relation to the CALM Reserve. A qualified condition securing access for the native title party will be imposed. Although at present unlikely, the Tribunal cannot ignore the possibility that ground disturbing activity will occur in future outside the WAPET Lease area. This possibility is accommodated by requiring the grantee party to give notice of the grant with full details of the conditions and endorsements imposed and notice of any proposed exploration or production work to be carried out pursuant to the Production Licence. The conditions are framed (including by defining the term ‘Thevenard Island’) to ensure that the conditions only apply to areas outside the WAPET and Mackerel Island leases.
Determination and Conditions
Determination
The determination of the Tribunal is that the petroleum production licence application L1/97-8 may be granted to West Australian Petroleum Pty Limited and Shell Development (Australia) Pty Ltd subject to the following conditions (1-10), to be complied with by the Government party, the native title party and the grantee party.
Conditions
Access
Any right of the native title party to access or use Thevenard Island (as defined) is not to be restricted except for reasons of safety and security and to the extent necessary for the reasonable exercise of rights under and management of non-native title interests on Thevenard Island.
Notice of grant
The grantee party must give to the native title party details of the grant of the petroleum production licence, including the conditions and endorsements, within 21 days of the date on which it was granted.
Exploration or production activity outside of the WAPET Lease
If the grantee party submits a notice to the Government party of a proposal to do any petroleum exploration or production work pursuant to the petroleum production licence on Thevenard Island (as defined), then at the same time the grantee party must give to the native title party:
(a)a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposal and details of any associated infrastructure not currently in existence;
(b)details and a map marking any additional restricted access areas for safety or security purposes;
(c)details and a map of any access tracks that need to be cleared to facilitate the project; and
(d)any proposals for rehabilitation of the Tenement.
General Conditions
Assignment
4.1These conditions apply to any assignee of the grantee party (other than a mortgagee, chargee or other security holder not in possession of the Tenement).
4.2The grantee party must not assign the production licence unless and until the assignee executes and delivers to the native title party a deed expressed to be for the benefit of the native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(i)to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the Tenement, or if it appoints a receiver to enter into possession of the Tenement; and
(ii)not to transfer the petroleum production licence under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the native title party by which the assignee agrees to be bound to these conditions as if it were the grantee party.
4.3Upon the delivery to the native title party of a duly executed deed in compliance with condition 4.2, the native title party must execute a deed expressed to be for the benefit of the assignee by which the native title party undertakes to be bound by these conditions.
4.4For the purposes of conditions 4.1 and 4.2 grantee party includes any person to whom the petroleum production licence is assigned.
Application of conditions
5.1These conditions only apply to that part of the Tenement which remains subject to:
(i)the native title claim;
(ii)another claim made by or on behalf of the native title party (either alone or in conjunction with others); or
(iii)an approved determination that the native title party holds native title (either alone or in conjunction with other persons) in respect of that part of the Tenement.
5.2These conditions only apply while the petroleum production licence (including renewals) is in force.
5.3These conditions do not apply to the grantee party if it ceases to be the holder of the petroleum production licence and an assignee of the petroleum production licence executes a deed as required by condition 4.2. This condition does not relieve the grantee party of any liability incurred under these conditions prior to it ceasing to be the holder of the petroleum production licence.
Notices
6.1For the purpose of these conditions, the registered native title claimant (from time to time) is authorised to give or receive any notice or other document on behalf of the native title party.
6.2Notices or other communications under these conditions may be given by delivery, post or facsimile and each party must nominate a postal address and facsimile address for that purpose. Until a party has made such a nomination, its address for service will be taken to be the address of the party’s representative at the future act determination application proceedings.
6.3Any party may by notice in writing change its addresses or facsimile numbers.
6.4A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.
General
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents, servants and contractors.
The Government party must make conditions 1, 3 and 4.2 conditions of the petroleum production licence.
The Government party must endorse on the petroleum production licence the fact that the grantee party and any assignee is subject to the conditions of a determination by the National Native Title Tribunal dated 1 June 2001.
Definitions
For the purpose of these conditions, the following terms have the following meanings:
“assign” includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; “assignment” and “assignee” have corresponding meanings.
“exploration or production” means the activities referred to in s 62 of the Petroleum Act 1967 (WA) that are authorised by the grant of a petroleum production licence under that Act.
“Government party” means the State of Western Australia.
“grantee party” means Western Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd.
“native title claim” means the native title determination application (in its form from time to time) made under the Native Title Act 1993(Cth) by Leslie Hayes, Glenys Hayes, Judy Hughes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the native title party and which is identified by the Native Title Tribunal number WC99/45.
“native title party” means:
(i)the registered native title claimants in respect of a native title claim and all persons on whose behalf the native title claim is made; and
(ii)in a case where an approved determination is made that the native title party holds native title to the whole or party of the Tenement (either alone or in conjunction with other persons), means the native title holders.
“petroleum production licence” means petroleum production licence the subject of application number L1/97-8.
“registered native title claimant”
(i)has the meaning given in the Native Title Act 1993(Cth), and if there is more than one person who constitutes the registered native title claimant, means the first named registered native title claimant; and
(ii)in the event of an approved determination that the native title party holds native title to the area of the Tenement, means the registered native title body corporate in respect of the native title claim.
“Tenement” means the area of the petroleum production licence over the land area of Thevenard Island above the mean high water mark
“Thevenard Island” means the land area of the Island on the landward side of the mean high water mark, not including the land the subject of special leases 3116/9594 and 3116/9595, and the lease from the Director General of the Department of Conservation and Land Management to West Australian Petroleum Pty Ltd dated 8 July 1988.
Hon C J Sumner
Deputy President
1 June 2001
Key Legal Topics
Areas of Law
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Indigenous Peoples & Native Title Law
Legal Concepts
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Native Title
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Legitimate Expectation
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Adverse Possession
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