William Webb and Others on behalf of South West Boojarah #2/ERM Gas Pty Ltd/State of Western Australia
[2009] NNTTA 90
•12 August 2009
NATIONAL NATIVE TITLE TRIBUNAL
William Webb and Others on behalf of South West Boojarah #2/ERM Gas Pty Ltd/State of Western Australia, [2009] NNTTA 90 (12 August 2009)
Application No: WF09/15
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a Future Act Determination Application
William Webb and Others on behalf of South West Boojarah #2 (WC06/4)
(Applicant/native title party)
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ERM Gas Pty Ltd (grantee party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 12 August 2009
Catchwords: Native title - future act - application for determination for the grant of petroleum exploration permit - named applicants not signed state deed - logistical difficulties - native title party as a whole consents to the determination - consent determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38
Mining Act1978 (WA)
Cases:Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385
Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182
Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia; [2001] NNTTA 50; (2001) 164 FLR 361
William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia, NNTT WF09/10 [2009] NNTTA 59 (22 June 2009) Daniel O’Dea
Hearing date: n/a
Representatives for the Ms Maryse Aranda and Mr Richard Hickson
native title party: South West Aboriginal Land and Sea Council
Representative for the
grantee party: Mr Tony Peterson, ERM Gas Pty Ltd
Representatives for the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Maryie Platt, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
On 30 January 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of a future act, namely the grant of petroleum exploration permit 11/07-8 EP (‘the proposed permit’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to ERM Gas Pty Ltd (‘the grantee party’).
The proposed permit comprises an area of 662.8 square kilometres located approximately 22 kilometres north east of Karridale between Lake Jasper and the Blackwood River within the Shire of Nannup. It is 100 per cent overlapped by the registered claim of the South West Boojarah #2 (WC06/4 – registered from 6 October 2006).
The native title party with respect to this proceeding is William Webb and Others on behalf of the South West Boojarah #2.
On 22 July 2009, being a date more than six months after the s 29 notice was given, the native title party made an application pursuant to s 35 of the Act for a determination under s 38 of the Act in relation to the proposed permit ('the application') and requested that the future act determination be made by consent.
Appended to the application is a minute of consent determination in the following terms executed by Richard Hickson on behalf of the native title party. The minute was later executed by Mr Jeff O’Halloran, State Solicitor’s Office, on behalf of the Government Party and by Tony Peterson, WA Director, on behalf of the grantee party:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act1993.
The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of section 31(1)(b) of the Native Title Act1993.
The Government Party, the Native Title Party 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 Permit 11/07-8 may be done.’
The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. South West Aboriginal Land and Sea Council (‘SWALSC’) is the recognised representative body under the Act for the native title party and represents the native title party in these proceedings. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
Paragraph 10 of the application explains why a consent determination is sought:
‘1. The negotiating parties have not been able to execute a formal agreement of the type mentioned in paragraph 31(1)(b) of the Native Title Act 1993 (Cth) in respect of the future act, however, the parties have finalised the terms of an agreement.
2. There are logistical difficulties in arranging for South West Boojarah 2 (WC06/4) to execute a State Deed in respect of the tenements sought by the Grantee Party by section 31(1)(b) of the Native Title Act.
3.South West Boojarah 2 (WC06/4) consents to the proposed act being done, that is the grant of Petroleum Exploration Permit 11/07-8 the subject of this consent determination. The Grantee Party and South West Boojarah 2 (WC06/4) confirm that they have an agreement between them and the Grantee Party agrees to abide by the provisions of that agreement and that Petroleum Exploration Permit 11/07-8 can therefore be granted in pursuant [sic] to the consent determination’
Also appended to the application is the affidavit of Ms Maryse Aranda, Senior Legal Officer of SWALSC sworn on 10 July 2009 in which she deposes instructions to consent to the determination were obtained from the native title party at a working party meeting held on 18 June 2009. A copy of the native title party resolution is attached as ‘Exhibit A’ to Ms Aranda’s affidavit.
The inquiry
On the basis of the information contained in the application, attached affidavit, executed minute, and with no objection from the parties’ representatives, I consider it appropriate to conduct the inquiry and make a determination on the papers without a hearing.
Findings
The Tribunal has previously accepted the logistical difficulties in obtaining the signatures of all persons comprising the native title party applicant on the basis of an affidavit from its legal representative (see William Webb and Others on behalf of South West Boojarah #2/Tito Pesce/State of Western Australia, NNTT WF09/10 [2009] NNTTA 59 (22 June 2009) Daniel O’Dea).
Further, the Tribunal has on numerous occasions held that a native title party is all the persons named as the applicant for a native title determination acting jointly or collectively and not each individually named person (see for example Gary Dimer and Others on behalf of the Widji People; Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon C J Sumner; Foster and Others v Copper Strike Ltd and Another [2006] NNTTA 61; (2006) 200 FLR 182; and Dimer and Others v Stewart and Others [2006] NNTTA 70; (2006) 200 FLR 385). In this matter I am satisfied that based on the evidence provided to the Tribunal, the native title party, as a whole, has agreed to the grant of the proposed permit and consents to a determination in the terms sought.
Determination
By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 11/07-8 EP to ERM Gas Pty Ltd, may be done.
Daniel O'Dea
Member
12 August 2009
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