Alfred Nathan & Ors (Pitta Pitta); Dorrie Prowse & Ors (Yulluna); Dorrie Prowse & Ors (Yulluna #2)/Gryphon Minerals Limited/Queensland

[2008] NNTTA 96

NATIONAL NATIVE TITLE TRIBUNAL

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

Applications No:      QF08/2

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

-  and  -

IN THE MATTER of an 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  (first native title party)

Dorrie Prowse, Hazel Sullivan and Valery Punch on behalf of the Yulluna People  (second native title party)

Dorrie Prowse, Alan Naumann, Stan Sullivan and Robin Sellers on behalf of the Yulluna People #2  (third native title party)

-  and  -

Gryphon Minerals Limited                                    (grantee party)

-  and  -

State of Queensland           (government party)

FUTURE ACT DETERMINATION

Tribunal:   John Sosso

Place:        Brisbane

Date:         29 July 2008

Hearing date:             16 July 2008

Representatives:

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

Second Native Title Party:           Mr Michael Neal, P & E Law

Third Native Title Party:             Mr Michael Neal, P & E Law

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 – application 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

Foster v Copper Strike Ltd (2006) 2000 FLR 182

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

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 19 September 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 15682, (“the proposed tenement”) pursuant to the Mineral Resources Act 1989 (Qld) to Gryphon Minerals Limited (“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 also 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 Mt Isa;

   (b)    it is situated in the Cloncurry and Boulia Shires and is approximately 132  kilometres east-south-east from Duchess.  The tenement covers an area of 133 square kilometres within the boundaries of the Pitta Pitta People (QUD6025/99), the Yulluna People (QUD6012/99) and Yulluna People #2 (QUD6004/02) registered native title determination applications.

4. On 18 January 2008 the second and third native title parties lodged with the Tribunal expedited procedure objection applications pursuant to s. 32(3) of the Act. On 18 June 2008 the government party withdrew its assertion that the proposed future act attracted the expedited procedure. The Tribunal formally dismissed the expedited procedure objection applications lodged by the second and third native title parties on 20 June 2008 – 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 parties to either the doing of the proposed future act conditionally or unconditionally.

5. On 1 July 2008 the first native title party made 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).

6. In its future act determination application, the first native title party stated that while agreement had been reached in principle with the grantee party for the proposed tenement, the agreement had not been executed.  The reason for this was explained as follows:

   “… 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 (sic) deceased.  One person is incapacitated due to illness.  The Pitta Pitta native title claim group has at meetings agreed that this agreement should be executed by the people who make up the applicant.”

7. 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.”

8. The legal representative for the second and third native title parties, Mr Michael Neal of P & E Law, by letter dated 16 July 2008 informed the Tribunal as follows:

   “I confirm there is a Native Title and Heritage Protection Agreement between Gryphon Minerals Ltd ACN 107 690 657 (Gryphon) and Yulluna People #1 relating to EPM 15682 dated 29 February 2008. There is a similar agreement dated the same date between Gryphon and Yulluna People #2.

   I confirm that each of the Applicants in Yulluna People #1 and Yulluna People #2 will consent to the Tribunal making a determination to the effect that EPM 15682 may be granted subject to Gryphon complying with the terms and conditions in each of the above mentioned agreements.”

9. Mr James Sunter, Group Manager – Licensing, Environmental & Licensing Professionals Pty Ltd, the representative of the grantee party, in a letter dated 25 July 2008  provided the Tribunal with the following confirmatory information:

   “I confirm the contents of Mr Neal’s letter, namely that there is a Native Title and Heritage Protection Agreement between Gryphon Minerals Ltd (Gryphon) and Yulluna People #1 relating to EPM 15682 dated 29 February 2008. There is a similar agreement dated the same date between Gryphon and Yulluna People #2.

   I advise that there is also a Native Title Heritage Protection Agreement between Gryphon and the Pitta Pitta People. I am instructed that Gryphon has executed an agreement with the Pitta Pitta People. I have sighted a copy executed by Gryphon but do have instructions on the date of signing by either party.

   I confirm that Gryphon will consent to the Tribunal making a determination to the effect that EPM 15682 may be granted subject to the parties to those agreements complying with the terms and conditions in each of the above mentioned agreements.”

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. After a very comprehensive and helpful outline of the relevant facts and law,  Ms Dwyer submitted:

    “6.4 The State consents to the Tribunal making the Determination sought for reasons as detailed in these submissions.

    6.5 Therefore, a consent determination in the terms sought is appropriate in these circumstances.”

11. The following five persons comprise the Applicant of the Pitta Pitta People native title determination application: Mr. Alfred Nathan, Mr. Henry Marion, Mr Neville Aplin, Ms. Alice James and Ms. Jean Jacks.  The Tribunal accepts the uncontested material lodged which demonstrates that one of those persons (Ms. Alice James) is deceased and another (Mr. Henry Marion) is incapacitated due to illness.

The Law

1. Section 38 provides that the Tribunal must make a determination either that the proposed future act must not be done or that it may be done conditionally or unconditionally. In making such a determination the Tribunal must take into account the criteria provided for in section 39. A key provision is subsection 39(4) which requires the Tribunal to ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. In such an event the Tribunal in making its determination must take that agreement into account, and need not take into account the matters outlined in subsection 39(1) to the extent that they are dealt with in the agreement reached. The Tribunal has given an expansive interpretation to the term “agreement” so that it covers both partial agreements and “in principle” agreements which cannot be formally executed – Foster v Copper Strike Ltd (2006) 200 FLR 182 at 189 – 190.

2. The relevant legal principles underpinning the Tribunal’s approach to the making of consent determinations are fully 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.

3. Ms Dwyer, on behalf of the government party submitted that in determining whether a consent determination is appropriate, the Tribunal will take into account the following considerations, amongst others:

   (a)whether an “in principle” agreement has been reached between the negotiation parties;

   (b)whether the “in principle” agreement has the support of the native title claim group as a whole;

   (c)whether the “in principle” agreement is properly made; and

   (d)whether the negotiation parties consent to the determination sought being made.

I accept that this is an accurate, and succinct, outline of some of the key considerations in determining whether the Tribunal will make a consent determination.

1. In addition to those factors other key issues which the Tribunal takes into account are:

   (a)whether the native title party (or parties) are legally represented;

   (b)the position of the relevant representative body for the area of the proposed tenement;

   (c)whether there is a history of the relevant native title party entering into similar agreements with the grantee party, or other explorers and miners;

   (d)whether the failure to execute the agreement was due to disputes within the Applicant over the terms of the agreement, or in fact opposition to the doing of the future act; and

   (e)what steps were taken by the representative of the native title party to ensure that the agreement was fully executed.

Findings

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

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

   (b)the legal representative was the relevant representative body for the area of the proposed tenement;

   (c)the “in principle” agreement reached with the grantee party  is similar to another agreement entered into with the grantee party previously;

   (d)similar agreements have been reached with at least two other exploration companies (Cloncurry Metals Limited and Holloman Minerals Pty Ltd);

   (e)Mr. Marion has previously been a signatory to those agreements;

   (f)the reason for the Mr. Marion not executing the agreement is unrelated to the terms of the agreement or the doing of the future act;

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

   (h)the broader Pitta Pitta claim group has given standard instructions to CLCAC to negotiate agreements the terms of which are reflected in the “in principle” agreement in this instance;

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

   (j)the Tribunal has perused the “in principle” agreement and its terms are in accord with standard commercial agreements dealing with the grant of exploration permits and there is nothing in the agreement which would militate against the Tribunal making a consent determination.

2. The Tribunal therefore finds that the consent determination sought by the first native title party is appropriate insofar as the terms of the Native Title and Heritage Protection Agreement between the grantee party and the first native title party, as lodged with the Tribunal, address the matters of which the Tribunal must be satisfied under section 39 of the Act.

3. The grantee party and the second and third native title parties have successfully negotiated agreements under s.31(1)(b) of the Act. The Tribunal has been provided with a copy of each of those agreements. The persons collectively comprising the Applicant of the second and third native title parties are capable of executing s.31(1)(b) agreements and for those agreements to be binding on the contracting parties – Doolan v Native Title Registrar (2007) 158 FCR 56. Nonetheless, for the purposes of this matter, both the second and third native title parties have consented to the Tribunal making a determination for the doing of the future act under section 38, subject to the grantee party complying with the terms and conditions of the agreements entered into.

4. As a general rule where there is more than one native title party and the other native title party or parties has or have executed agreements with the grantee party, and those other native title parties consent to the Tribunal making a determination to facilitate the “in principle” agreement negotiated by the first native title party, it is appropriate that the consent determination be made conditional on the grantee party complying with the terms and conditions of existing agreements entered into with the other native title parties.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the grant of Exploration Permit 15682 to Gryphon Minerals Limited may be done subject to compliance with the terms of each of the “Native Title and Heritage Protection Agreements” as filed with the National Native Title Tribunal in relation to the Pitta Pitta People (QUD6025/99), Yulluna People (QUD6012/99) and Yulluna People #2 (QUD6004/02).

John Sosso

Deputy President