Energetica Resources Pty Ltd/ Valerie Holborow & Ors on behalf of the Yaburara & Mardudhunera People/State of Western Australia

[2010] NNTTA 113

NATIONAL NATIVE TITLE TRIBUNAL

Energetica Resources Pty Ltd/ Valerie Holborow & Ors on behalf of the Yaburara & Mardudhunera People/State of Western Australia, [2010] NNTTA 113 (30 July 2010)

Application No:        WF10/13

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

The State of Western Australia (Applicant/Government party)

- and -

Valerie Holborow and Others on behalf of the Yaburara & Mardudhunera People (WC96/89) (native title party)

- and -

Energetica Resources Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Mr Daniel O'Dea, Member

Place:Perth

Date:30 July 2010

Catchwords:  Native title — future acts — application for determination for the grant of petroleum exploration permit — named applicant not signed agreement — native title party as a whole consent to the determination — consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss. 29, 31, 35, 38, 203BC

Petroleum and Geothermal Energy Resources Act 1967 (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 Christopher Sumner, Deputy President

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing date:  30 July 2010

Representative for the        Mr Ronald Bower, Corser & Corser

native title party:                 

Representative for the        Mr Len Diekman

grantee party:

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

1. On 12 August 2009, 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 13/08-9 EP (‘the proposed permit’) under the Petroleum and Geothermal Energy Resources Act 1967 (WA) to Energetica Resources Pty Ltd (‘the grantee party’).

2. The proposed permit comprises an area of 559.7 square kilometres located in the Northern Carnarvon Basin within the Shire of Roebourne.  It is 77.21 per cent overlapped by the registered claim of the Yaburara & Mardudhunera People (WC96/89 – registered from 1 August 1996).

3. The native title party with respect to this proceeding is Valerie Holborow and Others on behalf of the Yaburara & Mardudhunera People, the named applicants to the claim being Mr Kevin Cosmos, Mr Robert Boona and Ms Valerie Holborow.

4. On 16 July 2010, 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.

5. Appended to the application are counterparts of a minute of consent determination in the following terms executed by Ms Chau Savas on behalf of the native title party and Mr Len Diekman, Managing Director of the grantee party.  A counterpart of the minute was later executed by Mr Jeff O’Halloran of the State Solicitor’s Office on behalf of the Government party:

   ‘CONSENT DETERMINATION UNDER SECTION 38 OF

   THE NATIVE TITLE ACT 1993 (CTH)

   1.The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act1993.

   2.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.

   3.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 13/08-9 EP may be done.’

6. 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.  Corser and Corser is a law firm 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) (“Monkey Mia”).

7. As to the reason that a consent determination is sought, the application states that the native title party representative indicated that the matter would need to be resolved by consent determination.

The Inquiry

1. On 30 July 2010, the Tribunal conducted a preliminary conference attended by the representatives of the parties.  At that conference, Mr Ronald Bower, a partner of Corser & Corser and a representative of the native title party, confirmed that one of the named applicants has broken away from the native title party and there are currently difficulties in communicating with that person.  Mr Bower also provided further information that satisfied me that the applicant’s refusal to sign the agreement with the grantee party is due to factors unrelated to the agreement, and that the Yaburara and Mardudhunera People have approved the signing of the agreement.

2. At the preliminary conference, I indicated my view that it was appropriate to rely upon the information provided to me by Mr Bower, who is a senior legal practitioner and representative of the native title party, and make the consent determination.

3. All parties confirmed their consent to me making the consent determination on the basis I outlined. 

Findings with respect to the Yaburara & Mardudhunera native title party

1. In light of the information provided by Mr Bower at the preliminary conference on 30 July 2010, I am satisfied that the Yaburara & Mardudhunera native title party has consented to the determination in accordance with a process of the kind referred to in s 203BC(2)(b) of the Act.

2. The situation is not dissimilar to that in Monkey Mia where there was a refusal of two of 38 named applicants to sign the relevant agreement and other similar matters where the Tribunal considered it was appropriate to make a consent determination. 

3. 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 Christopher 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).

4. 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

1. By consent the determination of the Tribunal is that the act, namely the grant of petroleum exploration permit 13/08-9 EP to Energetica Resources Pty Ltd, may be done.

Daniel O'Dea
Member
30 July 2010