Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People; Annette Kogolo and Others on behalf of the Ngurrara..
[2006] NNTTA 101
•3 August 2006
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People; Jeffrey James and Others on behalf of the Martu People; Annette Kogolo and Others on behalf of the Ngurrara People/Western Australia/New Standard Exploration NL, [2006] NNTTA 101 (3 August 2006)
Application No: WF06/25
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikurnu) on behalf of the Martu People (WC96/78) (First Martu native title party)
- and -
Jeffrey James and Others on behalf of the Martu People (WC96/78)
(Applicant, Second Martu native title party)
- and -
Annette Kogolo and Others on behalf of the Ngurrara People (WC96/32)
(Ngurrara native title party)
- and -
The State of Western Australia (Government party)
- and -
New Standard Exploration NL (Grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place:Perth
Date:3 August 2006
Catchwords: Native title – future acts – application for determination for the grant of petroleum exploration permits – named applicants not signed state deed – logistical difficulties – native title parties consent to the determination – consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth), ss 35, 38, 41, 109
Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Western Australia v Jidi Jidi Aboriginal Corporation [2002] NNTTA 114; (2002) 169 FLR 470
Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner)
Hearing date: 25 July 2006
Representative of the Mr Gordon Hill, Executive Chairman,
grantee party: New Standard Exploration NL
Counsel for the Mr Malcolm O’Dell
Martu native title parties: Ngaanyatjarra Council (Aboriginal Corporation)
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Paul Revell, Department of Industry and Resources
REASONS FOR FUTURE ACT DETERMINATION
On 11 August 1999, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of petroleum exploration permits EP11/98-9 and EP12/98-9 (‘the proposed permits’) under the Petroleum Act 1967 (WA) to New Standard Exploration NL (‘the grantee party’). Details of the proposed permits are as follows:
EP11/9-9: Great Sandy Desert region, from Lat 20deg 15min South, Long 123deg 45min East, extending South Easterly approx 230km to Lat 22deg South, Long 125deg East, covering parts of Gwenneth and Percival Lakes in the shire of East Pilbara;
EP12/98-9: Great Sandy Desert region, from Lat 20deg 45min South, Long 125deg 30min East, extending South Easterly approx 200km to Lat 22deg South, Long 126deg 50min East, covering Tobin Lake in the shire of East Pilbara.
The native title parties with respect to these proceedings, and the extent to which each registered claim overlaps the proposed permits, are as follows:
Mr Jeffrey James and Others on behalf of the Martu People (Claim No. WC96/78) –4.2 % overlap of proposed permit EP12/98-9;
Ms Annette Kogolo and Others on behalf of the Ngurrara People (Claim No. WC96/32) – 83.4% overlap of proposed permit EP11/98-9 and 49.2 % overlap of proposed permit EP12/98-9;
Western Desert Lands Aboriginal Corporation (Prescribed Body Corporate) (Claim No. WC96/78) - 32.2% overlap of proposed permit EP11/98-9 and 25.3 % overlap of proposed permit EP12/98-9.
Findings relating to the Ngurrara native title party
The persons comprising the Ngurrara native title party have executed State Deeds agreeing to the grant of the proposed permits to the grantee party. These Deeds have also been executed by the Government party and grantee party. The Deeds have been lodged with the Tribunal as required by s 41A(1)(a) of the Act, but this on its own does not comprise an agreement of the kind mentioned in s 31(1)(b) of the Act as such an agreement must be between the government party, grantee party and each native title party. It is for this reason that the tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
Because the Ngurrara native title party has executed State Deeds which were lodged with the Tribunal the Ngurrara native title party played no active part in these proceedings. A Tribunal Case Manager has been informed by a representative of the Kimberley Land Council the recognised representative body under the Act for the area of the Ngurrara claim that there is no objection to a consent determination where a State Deed has been executed. A Tribunal Case Manager has sighted the State Deeds and informs me that they are in order and on this basis I am satisfied that the Ngurrara native title party consents to the grant of the proposed permits.
Findings relating to the First Martu native title party and Second Martu native title party
On 4 July 2006, being a date more than six months after the s 29 notice was given, Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the First Martu native title party and Second Martu native title party, made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the application’). These native title parties requested that the future act determination be made by consent.
The application was accompanied by a document entitled ‘Consent Determination under Section 38 of the Native Title Act 1993 (Cth)’ for the proposed permits, executed by Mr Malcolm O’Dell on behalf of the First and Second Martu native title parties and subsequently by Mr Gordon Hill on behalf of the grantee party and Mr Jeff O’Halloran on behalf of the Government party:
‘Determination
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993
2. The Government Party, the First and Second Native Title Parties and the Grantee Party have complied with the requirements of s.31(1)(b) of the Native Title Act 1993
3. The Government Party, the First and Second Native Title Parties and the Grantee Party consent to a determination under section.38 of the Native Title Act 1993 that the ‘act’ being the grant of Petroleum Exploration Permits 11/98-9 and 12/98-9 may be done.’
The Tribunal has the power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title parties) are legally represented and those representatives have advised the Tribunal of the consent. Ngaanyatjarra Council is the recognised representative body under the Act for the Martu native title parties. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
Paragraph 10 of the application states the following in describing why a consent determination is being sought:
‘MARTU WAD6100/98 – WC96/78 – FIRST AND SECOND NATIVE TITLE PARTIES
The Government Party, Grantee Party, the First Native Title Party and the Second Native Title Party have reached agreement that the act being the grant of Petroleum Exploration Permit Applications 11/98-9 and 12/98-9 may be done.
The First Native Title Party on its own behalf and on behalf of the Second Native Title Party together with the Grantee Party have executed an ancillary agreement entitled “Land Access Agreement” for Petroleum Exploration Permit Application.
While the First and Second Native Title Parties have reached agreement on the grant of Petroleum Exploration Permit Applications 11/98-9 and 12/98-9, the Second Native Title Party has not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth (“State Deed”).
The reason a State Deed has not been able to be executed relates to the considerable logistical difficulties of obtaining the requisite signatures including arranging for travel for a solicitor from the Ngaanyatjarra Council (Aboriginal Corporation) to travel from Perth to various locations in the Pilbara and central desert to obtain signatures, the time taken to arrange a meeting with the named applicants and the burden attending such meetings place on the individual applicants themselves many of whom are elderly or in poor health.
In order to enable timely grant of both applications, the Grantee Party, the Government Party and the First and Second Native Title Parties agree to this future act determination by consent. The proposed consent determination minute will be executed by each of these parties. A copy has been attached herewith (see Appendix 8).’
The inquiry
On 25 July 2006 the Tribunal conducted a hearing. All parties confirmed their consent to the determination in the terms sought. Mr O'Dell, counsel for both Martu native title parties, advised he was satisfied that he had been properly instructed by both Martu native title parties to consent to the determination. He confirmed the matters set out in paragraph 10 of the application, including that an ancillary agreement between both Martu native title parties and the grantee party had been signed. Mr O’Dell also advised that with respect to the First Martu native title party which is a registered native title body corporate the decision to enter into the ancillary agreement and consent to the determination had been properly made in accordance with the rules of the body corporate which mirror the procedures required for a ‘native title decision’ in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (Western Australia v Jidi Jidi Aboriginal Corporation [2002] NNTTA 114; (2002) 169 FLR 470).
The Tribunal has previously accepted statements by Mr O’Dell and the Ngaanyatjarra Council where logistical difficulties in obtaining signatures of a native title party to a State Deed have existed as a legitimate basis for seeking a consent determination (see for example Wilma Freddie and Others on behalf of Wiluna/Newmont Yandal Operations Pty Ltd/Western Australia, NNTT WF05/3, WF05/4, WF05/5, [2005] NNTTA 47 (14 July 2005), Hon C J Sumner). I adopt the Tribunal’s findings in paragraph [9] of that determination in relation to the responsibilities of the Ngaanyatjarra Council as a representative body under the Act to protect the interests of native title holders, the manner in which the Tribunal is to carry out its responsibilities under s 109 of the Act and that for these reasons the Tribunal is entitled to accept as evidence the advice of the Ngaanyatjarra Council’s legal representative that the appropriate consent has been given by his clients. I am satisfied that both Martu native title parties consent to the determination.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permits EP11/98-9 and EP12/98-9 to New Standard Exploration NL, may be done.
Hon C J Sumner
Deputy President
3 August 2006
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