Alfred Nathan & Ors (Pitta Pitta )/Cloncurry Precious Metals Pty Ltd/Queensland

[2008] NNTTA 101

NATIONAL NATIVE TITLE TRIBUNAL

Alfred Nathan & Ors (Pitta Pitta )/Cloncurry Precious Metals Pty Ltd/Queensland, [2008] NNTTA 101 (31 July 2008)

Applications No:      QF08/3

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of Inquiry into a Future Act Determination Application

Alfred Nathan, Henry Marion, Neville Aplin, Alice James and Jean Jacks on behalf of the Pitta Pitta People  (native title party)

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Cloncurry Precious Metals Pty Ltd                        (grantee party)

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State of Queensland           (government party)

FUTURE ACT DETERMINATION

Tribunal:   John Sosso

Place:        Brisbane

Date:         31 July 2008

Hearing date:  16 July 2008

Native Title Party:               Ms Kristy Thatcher, Queensland South Native Title Services

Grantee Party:            Mr James Sunter, Environmental & Licensing Professionals Pty                 Ltd.

Government Party:              Ms Jacinta Dwyer, A/Principal Lawyer, Department of Natural   Resources and Water

Catchwords:     Native title – future act – applications for determination for the grant of exploration permit – consent determination that the act may be done.

Legislation:        Mineral Resources Act 1989 (Qld)

Native Title Act1993 (Cth), ss 29, 30A, 31, 32, 35, 38, 39, 75

Cases:            Alfred Nathan & Ors (Pitta Pitta People); Dorrie Prowse & Ors (Yulluna People)/Queensland/Gryphon Minerals Ltd; Cloncurry Precious Metals Pty Ltd; Holloman Minerals Ltd [2008] NNTTA 77 (20 June 2008) Deputy President Sosso.

Alfred Nathan & Ors (Pitta Pitta); Dorrie Prowse & Ors (Yulluna); Dorrie Prowse & Ors (Yulluna #2)/Gryphon Minerals Limited/Queensland QF08/2 [2008] NNTTA 96 (29 July 2008) Deputy President Sosso.

Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361.

Foster v Copper Strike Ltd (2006) 200 FLR 182

REASONS FOR FUTURE ACT DETERMINATION

1. On 13 June 2007, the government party gave notice under section 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permit EPM 15946, (“the proposed tenement”) pursuant to the Mineral Resources Act 1989 (Qld) to Cloncurry Precious Metals Pty Ltd (“grantee party”).

2. The notice stated that the Exploration Permit would authorise the grantee party to explore for minerals for a term not exceeding 5 years with a right to renew for a further 5 years. The notice also stated that it was proposed to grant the Exploration Permit subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 1, 1 October 2003 and the Native Title Protection Conditions Version 1.1(a) of 22 August 2003. The government party further asserted that the grant of the proposed tenement attracted the expedited procedure – s.29(7).

3. Details of the proposed tenement are set out below:

   (a)    the proposed tenement is located in western  Queensland, south  of Mount Isa;

   (b)    the proposed tenement is located in the Cloncurry and Boulia Shires and is approximately 63 kilometres west from Middleton, within the boundaries of the Pitta Pitta Peoples registered native title determination application (QUD6025/99).

4. The Pitta Pitta People native title determination application was entered on the Register of Native Title Claims on 5 March 2001. The persons who collectively comprise the Applicant are Mr. Alfred Nathan, Mr. Henry Marion, Mr. Neville Aplin, Ms. Alice James and Ms. Jean Jacks.  The Tribunal has previously been advised that one of these persons (Ms. Alice James) is deceased and another (Mr. Henry Marion) is incapacitated due to illness.

5. On 11 October 2007 the native title party lodged with the Tribunal an expedited procedure objection application pursuant to s.32(3) of the Act against the government party’s assertion of the expedited procedure with respect to the proposed tenement. On 18 June 2008 the government party, pursuant to s.32(7), withdrew its assertion that the grant of the proposed tenement attracted the expedited procedure. Consequently, on 20 June 2008 the Tribunal formally dismissed, pursuant to s.148(a), the expedited procedure objection application of the native title party – Alfred Nathan & Ors (Pitta Pitta People); Dorrie Prowse & Ors (Yulluna People)/Queensland/Gryphon Minerals Ltd; Cloncurry Precious Metals Pty Ltd; Holloman Minerals Ltd [2008] NNTTA 77. As a result of the withdrawal of the assertion that the expedited procedure applied to the grant of the proposed tenement, the normal negotiation procedure mandated by section 31 of the Act applied. Each of the negotiation parties (s.30A) was required to negotiate in good faith with a view to obtaining agreement of the native title party to either the doing of the proposed future act conditionally or unconditionally.

6. On 1 July 2008 the native title party lodged a future act determination application pursuant to sections 35 and 75. The application was made more than six months after the notification day – s.35(1)(a). On 8 July 2008 the future act determination application was accepted pursuant to section 77.

7. In its future act determination application, the native title party stated that while agreement in principle had been reached with the grantee party for the proposed tenement, the Native Title and Heritage Protection Agreement (“the ‘in principle agreement’”) had not been fully executed.  The reason for this was explained as follows:

   “The Applicant and the Grantee Party have effectively reached agreement, however, this agreement has not been executed due to two of the 5 people who make up the applicant not having signed the agreement.  One of these people are deceased.  One person is incapacitated due to illness.  The Pitta Pitta claim group has at meetings agreed that this agreement should be executed by the people who make up the applicant.”

8. Subsequently Ms. Belinda Stanley, the Greater Mount Isa Regional Coordinator of the Carpentaria Land Council Aboriginal Corporation (“CLCAC”) provided a Statutory Declaration, in support of the future act determination application. The CLCAC was during most of the relevant period, the representative body of the area covered by the proposed tenement and was the legal representative of the first native title party. Since 1 July 2008 the first native title party has been represented by the successor body to CLCAC, Queensland South Native Title Services.  The key information deposed to is set out below:

   “2. On or around 18 March and 8 April 2008 I requested that the Carpentaria Land Council Aboriginal Corporation Capacity Development Officer at that time, Paul Walker to attend the residence of Pitta Pitta applicant, Mr. Henry Marion to advise him of the Section 31 ancillary agreements and deeds and obtain his signature if he approved of the terms in those agreements and deeds.

   3.   On or around 20 March 2008 I attended Mr Marion’s house twice, at 9.00 am and at 5.00 pm to discuss the Section 31 ancillary agreements and deeds with him and to obtain his signature if he agreed with its terms.  At 9.00 am I spoke with Mr Marion’s niece, Ms Sylvia Marion and she said that Mr. Marion would be present that afternoon and to return then.  I left the agreements to Mr Marion to sign.  Mr. Marion was asleep when I returned at 5.00 pm and his sister Ms Ursula Marion said she could not locate the agreements.

   4.   I returned to Mr. Marion’s residence at 9.00 am on 25 March 2008 and there was no one present.

   5.   I returned to Mr. Marion’s residence twice in the week commencing 31 March 2008.  Ms Sylvia Marion informed me that Mr. Marion was ill and was in Hospital in Townsville and would return to Mount Isa the following week.

   6.  I attended Mr. Marion’s residence in the week commencing 14 April 2008 and was advised by Ms Ursula Marion that Mr. Marion was in Mount Isa Hospital under observation.  At this time Ms Sylvia Marion informed me that Mr. Marion was physically unable to agree to or sign the document due to his ill health.

   7.  I have read the Section 31 Ancillary agreements and deeds and I am aware that it is of a similar nature to other agreements that the Pitta Pitta applicant, including Mr. Marion have signed in the past.

   8. I am aware that the Carpentaria Land Council Aboriginal Corporation has received standard instructions from the Pitta Pitt People to negotiate terms in such agreement and the terms of the section 31 ancillary agreements reflect our instructions.

   9.   Please be advised that when referring to Section 31 Ancillary agreements and deeds above, I refer to the following specific agreements as listed:

   Gryphon Minerals Limited EPM 15682, Cloncurry Metals Limited EPM 15946, Holloman Minerals Pty Ltd EPM’s 16103, 16095, 16097, 16098, 16099, 16100, 16101, 16102, 16104.”

9. On 25 July 2008 Mr James Sunter, representative of the grantee party, advised the Tribunal as follows:

   “I advise that Cloncurry Metals Ltd has executed a Native Title and Heritage Protection Agreement with the Pitta Pitta People.

   I confirm that Cloncurry Metals will consent to the Tribunal making a determination to the effect that EPM 15946 may be granted subject to the parties to that agreement complying with the terms and conditions in the agreement.”

10. Finally, Ms. Jacinta Dwyer, on behalf of the government party, made formal submissions dated 25 July 2008 in support of the Tribunal making a consent determination.

11. The legal basis for the Tribunal making a consent determination is comprehensively set out in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 at 368 – 371 and Foster v Copper Strike Ltd (2006) 200 FLR 182 at 189 – 193. I adopt the principles outlined in those determinations for the purposes of this determination.

12. The key factors that the Tribunal takes into account in making a consent determination under section 38 were outlined in a recent related determination, also involving the Pitta Pitta People. I adopt for the purposes of this determination the approach outlined in Alfred Nathan & Ors (Pitta Pitta); Dorrie Prowse & Ors (Yulluna); Dorrie Prowse & Ors (Yulluna #2)/Gryphon Minerals Limited/Queensland [2008] NNTTA 96 at [14] – [15].

13. On the basis of the uncontested material before the Tribunal the following findings can be made concerning the native title party:

    (a)at all times the native title party was legally represented;

    (b)the legal representative was the representative body, or the body performing the functions of a representative body, for the area of the proposed tenements;

    (c)the broader Pitta Pitta claim group has given standard instructions to its legal representative to negotiate agreements the terms of which are reflected in the “in principle” agreement before the Tribunal’;

    (d)the Tribunal has been provided with a copy of the “in principle” agreement;

    (e)the Tribunal has perused the “in principle” agreement and there are, prima facie, no provisions the terms of which would militate against the Tribunal making a consent determination;

    (f)the “in principle” agreement is of a type that can be properly made the subject of conditional determinations pursuant to s.38(1)(c);

    (g)the failure of Mr. Marion to execute the agreement is totally unrelated to the terms of the “in principle” agreement, nor is there any material indicating that Mr. Marion is opposed to the doing of the proposed future act; and

    (h)the legal representative of the native title party has used reasonable endeavours to obtain the signature of Mr. Marion.

14. The Tribunal has material lodged by both the government and grantee parties which unequivocally demonstrates their support for the making of a consent determination.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of Exploration Permit 15946 to Cloncurry Precious Metals Pty Ltd may be done subject to compliance with the terms of the “Native Title and Heritage Protection Agreement” between Cloncurry Metals Ltd ACN 122 162 396 and Alfred Nathan, Alice James, Neville Aplin, Henry Marion and Jean Jacks on behalf of the Pitta Pitta People (QUD 6025/99) in relation to Exploration Permit 15946 as filed with the National Native Title Tribunal.

John Sosso

Deputy President