Alfred Nathan & Ors (Pitta Pitta )/Holloman Minerals Pty Ltd/Queensland,

Case •

[2009] NNTTA 103

•

28 October 2009

NATIONAL NATIVE TITLE TRIBUNAL

Alfred Nathan & Ors (Pitta Pitta )/Holloman Minerals Pty Ltd/Queensland, [2009] NNTTA 138 (28 October 2009)

Applications No:      QF09/2

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  (native title party)

-  and  -

Holloman Minerals Pty Ltd           (grantee party)

-  and  -

State of Queensland           (government party)

FUTURE ACT DETERMINATION

Tribunal:   John Sosso

Place:        Brisbane

Date:         28 October 2009

Hearing date:  16 October 2009

Native Title Party:              Mr Brett Hartley, Queensland South Native Title Services

Grantee Party:  No attendance

Government Party:             Ms Sara Newrick, State of Queensland

Catchwords:     Native title – future act – application for determination for the grant of exploration permits– 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); Dorrie Prowse & Ors (Yulluna); Dorrie Prowse & Ors (Yulluna #2)/Gryphon Minerals Limited/Queensland [2008] NNTTA 96 (29 July 2008) Deputy President Sosso

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

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

David Allie & Ors (Gudjala People), Alfred Nathan & Ors (Pitta Pitta People/ Queensland/ Ausgold Exploration Pty Ltd; Holloman Minerals Pty Ltd, [2009] NNTTA 118 (2 October 2009) 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 8 January 2009, the government party gave notice under section 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permit EPM 17510 (“the proposed tenement”) to Holloman Minerals Pty Ltd (“grantee party”) pursuant to the Mineral Resources Act 1989 (Qld).

  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 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 the proposed tenement attracted the expedited procedure – s. 29(7).

  3. The proposed tenement is located in western Queensland south of Mount Isa within the Diamantina and Boulia Shire Councils.  EPM 17510 is located approximately 82 kilometres north of Bedourie and covers an area of approximately 380 square kilometres.  The proposed tenement is situated 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 17 June 2009 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 each of the proposed tenement. On 29 September 2009 the government party, pursuant to s.32(7), withdrew its assertion that the grant of the proposed tenement attracted the expedited procedure. Consequently, on 2 October 2009 the Tribunal formally dismissed the native title party’s expedited procedure objection application pursuant to s.148(a) – David Allie & Ors (Gudjala People), Alfred Nathan & Ors (Pitta Pitta People/ Queensland/ Ausgold Exploration Pty Ltd; Holloman Minerals Pty Ltd, [2009] NNTTA 118 (2 October 2009).

  6. On 29 September 2009 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 (18 February 2009) – s.35(1)(a). On 12 October 2009 the future act determination application was accepted pursuant to section 77.

  7. In the 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 Deed of Variation had not been fully executed.  The reason for this was explained as follows:

    “... The Pitta Pitta People and Holloman Minerals Pty Ltd have reached agreement about the grant of the exploration permit and are seeking to vary a previous agreement to include EPM 17510.  The Deed of Variation cannot be executed due to the ill-health and lack of capacity of Mr Henry Marion.  Hence, the parties request that the National Native Title Tribunal make a determination that the act can be done subject to the terms of the previous agreement between the Pitta Pitta People and Holloman Minerals Pty Ltd.”

  8. Mr Brett Robert Hartley, a solicitor employed by Queensland South Native Title Services Limited (“QSNTS”) provided a Statutory Declaration sworn on 18 September 2009 in support of the future act determination application.  QSNTS is the representative body for the area covered by the proposed tenement and is the legal representative for the native title party.  So far as is relevant, Mr Hartley deposed as follows:

    “3. QSNTS has standing instructions from the Applicant for the Pitta Pitta People to negotiate section 31 ancillary agreements and, where appropriate, deeds of variation to those agreements.  The terms of the deed of variation negotiated with Holloman Minerals Pty Ltd in relation to EPM 17510 (Deed of Variation) reflect those instructions.

    4.   The Deed of Variation amends an earlier ancillary agreement reached between the Pitta Pitta People and Holloman Minerals Pty Ltd to include EPM 17510.  The earlier ancillary agreement was the subject of a future act determination by the National Native Title Tribunal – Alfred Nathan & Ors (Pitta Pitta)/Holloman Minerals Ltd/Qld [2008] NNTTA 100 (31 July 2008).

    5.   The Deed of Variation has been signed by three of the five individuals constituting the Pitta Pitta Applicant.

    6.  One of the two remaining individuals constituting the Applicant, Alice James is deceased and Henry Marion remains incapacitated due to illness and is unable to provide QSNTS with further instructions.

    7.   Henry Marion’s continued incapacity is supported by an affidavit provided by Ms Christine Doyle.”

  9. Mr Hartley refers to an Affidavit of Ms Christine Marie Doyle, an aged care worker. Ms Doyle provided extensive details in her Affidavit (sworn on 9 September 2009) of Mr Marion’s current medical condition. It is not necessary to quote from the Affidavit, suffice it to say, it confirms that Mr Marion is incapacitated and is being treated for diabetes and dementia.

  10. On 23 September 2009 Mr John Risinger, a Director of Holloman Minerals, advised the Tribunal as follows:

    “Holloman Minerals have now reached agreement with the Pitta Pitta People in relation to EPM 17510 in the form of a Deed of Variation and the company fully supports the tribunal making a consent determination in this matter.”

  11. Finally, Ms Jacinta Dwyer, on behalf of the government party, made formal submissions dated 26 October 2009 in support of the Tribunal making a consent determination.

  12. 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.

  13. 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].

  14. To date the Tribunal has made three consent determinations to facilitate the making of agreements between the native title party and various grantee parties. In addition to the determination quoted above at [13] the Tribunal also made consent determinations in Alfred Nathan & Ors (Pitta Pitta)/Holloman Minerals Ltd/Queensland [2008] NNTTA 100 and Alfred Nathan & Ors (Pitta Pitta)/Cloncurry Precious Metals Pty Ltd/Queensland [2008] NNTTA 101. It will be noted that the Tribunal has previously facilitated the effectuation of an “in principle” agreement reached between the native title party and the grantee party.

  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 Tribunal has previously made a future act determination pursuant to section 38 to facilitate the making of an agreement between the native title party and the grantee party.

  16. The Tribunal has also before it material lodged by both the government and grantee parties which unequivocally demonstrate 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 17510 to Holloman Minerals Pty Ltd, 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) as varied by the “Deed of Variation” between Holloman Minerals Pty Ltd and Alfred Nathan, Alice James, Neville Aplin, Henry Marion and Jean Jacks on behalf of the Pitta Pitta People in relation to Exploration Permit for Minerals 17510 both as filed with the National Native Title Tribunal.

John Sosso

Deputy President

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0