Alfred Nathan & Ors (Pitta Pitta )/Holloman Minerals Ltd/Queensland - [2008] NNTTA 100

NATIONAL NATIVE TITLE TRIBUNAL

Alfred Nathan & Ors (Pitta Pitta )/Holloman Minerals Ltd/Queensland, [2008] NNTTA 100 (31 July 2008)

Applications No: QF08/4; QF08/5; QF08/6; QF08/7; QF08/8; QF08/9 and QF08/10

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

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IN THE MATTER of Inquiries into Future Act Determination Applications

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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Holloman Minerals Limited (grantee party)

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State of Queensland (government party)

FUTURE ACT DETERMINATIONS

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 Ross Boyd, Finlaysons

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

Catchwords: Native title – future acts – applications for determination for the grant of exploration permits – consent determination that the acts 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 DETERMINATIONS

On 3 October 2007, the government party gave notice under section 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permits EPM 16095, 16097, 16099, 16100, 16101, 16102 and 16104, (“the proposed tenements”) pursuant to the Mineral Resources Act 1989 (Qld) to Holloman Minerals Limited (“grantee party”).
The notice stated that the Exploration Permits 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 Permits subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 2, 14 March 2007 and the Native Title Protection Conditions Version 1.1(a) of 22 August 2003. The government party further asserted that the grant of each of the proposed tenements attracted the expedited procedure – s. 29(7).
Details of the proposed tenements are set out below:
(a)    the proposed tenements are located in western Queensland, south of Mount Isa;
(b)    the proposed tenements are located in the Diamantina Shire;
(c)    EPM 16095 is located approximately 73 kilometres north west of Bedourie and covers an area of approximately 313 square kilometres;
(d)    EPM 16097 is located approximately 50 kilometres north, north west from Bedourie and covers an area of approximately 313 square kilometres;
(e)    EPM 16099 is located approximately 65 north, north east from Bedourie and covers an area of approximately 313 square kilometres;
(f)     EPM 16100 is located approximately 63 kilometres north east from Bedourie and covers an area of approximately 313 square kilometres;
(g)    EPM 16101 is located approximately 59 kilometres north west from Bedourie and covers an area of approximately 313 square kilometres;
(h)    EPM 16102 is located approximately 87 kilometres north from Bedourie and covers an area of approximately 313 square kilometres;
(i)     EPM 16104 is located approximately 36 kilometres north from Bedourie and covers an area of approximately 297 square kilometres; and
(j)     all of the proposed tenements are situated within the boundaries of the Pitta Pitta Peoples registered native title determination application (QUD6025/99).
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.
On 1 February 2008 the native title party lodged with the Tribunal expedited procedure objection applications pursuant to s.32(3) of the Act against the government party’s assertion of the expedited procedure with respect to each of the proposed tenements. On 18 June 2008 the government party, pursuant to s.32(7), withdrew its assertion that the grant of the proposed tenements attracted the expedited procedure. Consequently, on 20 June 2008 the Tribunal formally dismissed, pursuant to s.148(a), the expedited procedure objection applications 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 tenements, 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.
On 1 July 2008 the native title party lodged future act determination applications pursuant to sections 35 and 75. Each application was made more than six months after the notification day – s.35(1)(a). On 8 July 2008 each of the future act determination applications were accepted pursuant to section 77.
In each of its future act determination applications, the native title party stated that while agreement in principle had been reached with the grantee party for each of the proposed tenements, 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.”
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.”
On 16 July 2008 Mr Ross Boyd, the legal representative of the grantee party, advised the Tribunal as follows:
“Holloman Minerals Pty Ltd fully supports the National Native Title Tribunal making a determination by consent that EPMs 16095, 16097, 16099, 16100, 16101, 16102 and 16104 be granted to Holloman Minerals. Holloman Minerals Pty Ltd acknowledge that they have come to a native title agreement ancillary to the s. 31 Deed with the Pitta Pitta people (Ancillary Agreement) in relation to the above named tenements and agree to be bound by the terms of the Ancillary Agreement and agree that the conditions subject to which the Honourable Tribunal’s Determination is made shall be the terms of the Ancillary Agreement.”
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.
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.
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].
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 representatives to negotiate agreements the terms of which are reflected in the “in principle” agreement before the Tribunal’;
(d)the Tribunal has been provided with copies 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 acts; and
(h)the legal representative of the native title party has used reasonable endeavours to obtain the signature of Mr. Marion.
The Tribunal has also before the material lodged by both the government and grantee parties which unequivocally demonstrate their support for the making of a consent determination.

Determination

By consent, the determination of the Tribunal is that the acts, namely the grant of Exploration Permits 16095, 16097, 16099, 16100, 16101, 16102 and 16104 to Holloman Minerals Limited may be done subject to compliance with the terms of the “Native Title and Heritage Protection Agreement” between Holloman Minerals Pty Ltd ACN 120314016 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 Permits 16095, 16097, 16098, 16099, 16100, 16102 and 16104 as filed with the National Native Title Tribunal.

John Sosso

Deputy President