Andrew Anderson & Ors (Gudjala People)/Ausgold Exploration Pty Ltd/Queensland
[2009] NNTTA 171
•21 December 2009
NATIONAL NATIVE TITLE TRIBUNAL
Andrew Anderson & Ors (Gudjala People)/Ausgold Exploration Pty Ltd/Queensland, [2009] NNTTA 171 (21 December 2009)
Applications No: QF09/3
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into a Future Act Determination Application
Andrew Anderson, Christine Hero, William Santo, Elizabeth Dodd, Priscillia Huen and Gloria Santo on behalf of the Gudjala People (native title party)
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Ausgold Exploration Pty Ltd (grantee party)
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State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 21 December 2009
Hearing date: 3 December 2009
Native Title Party: Ms Kate McKenzie, Barrister at Law
Grantee Party: Mr Brian Martin, Hetherington’s Exploration & Mining Title Services
Government Party: Ms Sara Newrick, State of Queensland
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:Butchulla People v Queensland (2006) 154 FCR 233
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
Doolan v Native Title Registrar (2007) 158 FCR 56
Foster v Copper Strike Ltd (2006) 200 FLR 182
Leedham Papertalk & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd, WF09/24 [2009] NNTTA 159 (30 November 2009) Deputy President Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Sambo v Western Australia [2008] FCA 1575
REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION
On 15 October 2008, the government party gave notice under s.29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permit EPM 17068 (“the proposed tenement”) to Ausgold Exploration Pty Ltd (“grantee party”) pursuant to the Mineral Resources Act 1989 (Qld).
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).
The proposed tenement is located north north-east of Pentland within the Charters Towers Regional Council local government area and covers an area of approximately 232 square kilometres. The proposed tenement is situated wholly within the boundaries of the Gudjala People’s registered native title determination application (QUD80/2005).
The Gudjala People’s native title determination application was entered on the Register of Native Title Claims on 22 April 2005. The persons who collectively comprised the Applicant until 2 October 2009 were Mr David Allie, Mr. Gavin Allingham, Mr. Allan Huen, Mr. Roe Hero, Mr William Santo and Ms Gloria Santo. On 2 October 2009 Logan J ordered that Ms Elizabeth Dodd, Mr Andrew (Smokey) Anderson, Ms Gloria Santo, Mr William Santo, Ms Christine Hero and Ms Priscilla Michelle Huen jointly replace the then Applicant.
On 13 November 2008 the native title party lodged with the Tribunal an expedited procedure objection application pursuant to s. 32(3) of the Act in response to the government party’s assertion of the expedited procedure with respect to the proposed tenement. On 2 October 2009 the government party, pursuant to s. 32(7), withdrew its assertion that the grant of the proposed tenement attracted the expedited procedure. On the same day the Tribunal 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).
On 26 October 2009 the native title party lodged a future act determination application pursuant to ss.35 and 75. The application was made more than six months after the notification day (15 October 2008) – s. 35(1)(a). On 3 November 2009 I was appointed as the Member to conduct the future act determination inquiry and on 19 November 2009 I accepted the future act determination application pursuant to s. 77.
In the future act determination application, the native title party explained 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 at that time by all of the persons who then comprised the Applicant
Ms Kathryn McKenzie, the legal representative for the native title party, provided the Tribunal with a Statutory Declaration sworn on 2 June 2009. So far as is relevant, Ms McKenzie deposed as follows:
“1. I am a Barrister practicing at the Townsville Bar.
2. I hold instructions from the Applicants in the Gudjala People Native Title Determination Application QUD 80/05 (“the Claim”) to act on their behalf in a number of future act applications within the area of the Claim.
3.Ausgold Exploration Pty Ltd has applied for the granting of EPMs 17068, which lies within the area of the Claim.
4.On 13th November 2008 I filed a Form 4 Objection with the National Native Title Tribunal, in relation to this EPM.
5.The Gudjala Applicants indicated their desire to ensure that all future acts falling within the area of the Claim should be dealt with as promptly as possible. My instructions were that negotiations should progress in such a way as to avoid delays and maximise the opportunity for cultural heritage protection and management within the area of the claim.
6.Accordingly, I hold instructions to negotiate an Ancillary Agreement to a s.31 Deed in respect of EPM 17068.
7.Negotiations with Ausgold Exploration Pty Ltd in relation to an ancillary agreement to a s.31 Deed commenced in February 2009 and were completed in late April 2009.
8. The proposed Ancillary Agreement between the Gudjala People and Ausgold Exploration Pty Ltd in respect of EPM 17068 (“the Agreement”) contains conditions which afford the Gudjala People substantially better benefits than those provided for under the Native Title Protection Conditions (“the NTPCs”).
9.Aspects of the proposed Agreement which differ significantly from the NTPCs include (but are not limited to):
· The rates of pay for ‘monitors’ or field inspection participants;
· The number and nature of field inspection participants;
· The annual premium payable by the Explorer for each EPM; and
· Dispute resolution procedures and conditions.
10.Each of the above variations contained within the proposed Agreement, provide substantially greater benefits to the native title party than those secured by the NTPCs.
11. The Gudjala Applicant comprises six (6) members of the group.
12. Five (5) people have executed the Agreement.
13. Five (5) people have signed the deed pursuant to section 31 of the Native Title Act 1993 (“the s.31 Deed”).
14. Mr Gavin Allingham has failed to sign the Agreement or the s.32 Deed.
15.During the period of 2005 to date, in which I have held instructions from the Gudjala Applicants in relation to their future act business, Mr Allingham has repeatedly voiced to me his wish to be removed as an applicant on the Gudjala Peoples claim (QUD80/05).
16. On each such occasion I have advised Mr Allingham that I do not have carriage of the Claim and am, therefore, unable to effect his removal or replacement on the Claim. I have advised him to contact the relevant land council (CQLC, the NQLC since 1st July 2008).
17. Mr Allingham stated then that he was not prepared to go on as an applicant and would not be conducting any future Gudjala business and added that I need not bother to contact him again or send him any future materials.
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26. On 16th December 2008, Lizzie, Mr Allingham’s wife, phoned me to advise that Mr Allingham had told her to call me and let me know that he would not be signing any further documents with respect to any aspect of the Gudjala native title claim or business relating to it. When I asked Lizzie if Gavin had given her any reason for this, she stated that he had told me many times that he did not want to be an applicant, but felt he was being ignored in his requests to be removed from the Claim as an applicant. He had therefore decided that he would refuse to conduct any of the business required of an applicant.
27.I asked Lizzie if she was aware of any worries or reservations Gavin had about the specific terms of the agreement with Liontown and she stated that he would not even look at the documents. I concluded from this that Mr Allingham’s reservations could not relate to the terms and conditions contained in the agreement.”
As Ms. McKenzie highlights, the failure of Mr. Allingham to execute the relevant documentation was in no way connected to concerns about the terms of the agreement or the doing of the proposed future act. If this was the only issue in this matter, then it would be a relatively straightforward case of a consent determination. However, there are other factors that complicate this matter and which are set out below.
The future act determination application was lodged on 26 October 2009, approximately three weeks after Logan J ordered the replacement of the persons comprising the Applicant. The application was made in the names of the persons who now collectively comprise the Applicant. The difference between the persons previously comprising the Applicant and the current persons is significant. Apart from the fact that Mr. Allingham is no longer amongst the persons comprising the Applicant, additional persons were removed on 2 October 2009: David Allie, Allan Huen and Roe Hero. Of the current six persons comprising the Applicant, only Gloria Santo and William Santo were previously performing that role.
In addressing this situation, Ms. McKenzie corresponded with the Tribunal on 3 December 2009 in the following terms:
“I confirm that my instructions from the new applicants on the Gudjala People (Core Country) Claim QUD 80/05 are that they support the application to the NNTT for a Consent Determination in respect of the above EPM, to enable the terms and conditions of the ancillary agreement executed by the former applicants (with the exception of Mr Gavin Allingham) to be given effect to.
The new applicants were nominated by the wider claim group to prosecute the claim and manage the future act business of the group, on their behalf. The replacement of the former applicant by the new applicant was undertaken specifically to overcome the difficulties the group was encountering in respect of a failure of one of the former applicants to carry out his obligations in this respect. This failure was significantly adversely effecting the interests of the claim group.”
On the same day Ms. Sara Newrick, on behalf of the government party, made formal submissions in support of the Tribunal making a consent determination. So far as is relevant the government party submitted as follows:
“I can confirm that, in principle, the State supports the Tribunal making a consent determination in the form requested by the Native Title Party, that the act be done subject to compliance with the conditions of the Ancillary Agreement as provided by Ms McKenzie on behalf of the Gudjala People with her correspondence to the Tribunal dated 20 October 2009.
The State is aware that since the abovementioned agreement was executed, the persons comprising the applicant for the Gudjala People’s claimant application have been replaced. The State understands from information provided by Ms McKenzie at the Preliminary Conference on 3 December 2009 that the persons comprising the current applicant are unanimous in their accord that the Tribunal make the consent determination in accordance with the terms of the Ancillary Agreement reached between the parties, as provided to the Tribunal. The State further understands that the persons comprising the applicant were appointed on the basis that they further the interests of the claim group by entering into agreements such as this.”
Finally, on 18 December 2009 Ms. Alicia Tongpao, on behalf of the grantee party, supported the making of a consent determination. She submitted: “I confirm that my client, Ausgold Exploration Ltd, supports the making of a Consent Determination to give effect to the ancillary agreement negotiated between Ausgold and the Gudjala People for EPM 17068.”
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 matter.
This matter raises a set of circumstances that are somewhat unusual. In the normal course a consent determination is requested where one or more of the persons collectively comprising the Applicant either refuse to execute an agreement, cannot be located, or suffer from a physical or mental ailment that precludes them executing the relevant documentation. This was the situation in this matter until 2 October 2009. Mr Allingham refused to execute the agreement, not on the basis of any concerns with the agreement or generally, but because of a set of circumstances totally unrelated to the doing of the future act.
So far as the situation pertaining up until 2 October 2009 the Tribunal has before it the following uncontested material:
(a)at all times the native title party was legally represented;
(b)all of the persons, other than Mr. Allingham, comprising the Applicant in place prior to 2 October 2009 executed the Ancillary Agreement;
(c)Mr. Allingham refused to execute the agreement for reasons unconnected with the terms of the document or any stated concerns about the doing of the future act;
(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); and
(g)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.
[17] The persons currently comprising the Applicant are unanimous in their support for the effectuation of the agreement previously executed by all but one of the persons comprising the original Applicant. For logistic and other reasons the re-execution of the agreement has presented difficulties, and the native title party has sought the assistance of the Tribunal by means of a consent determination.
[18] There is no evidence before the Tribunal that the Gudjala People are not supportive of the execution of the agreement. Indeed, all the material indicates that they are very keen to advance their broader interests and aspirations by negotiating agreements with grantee parties.
[19] The Tribunal has traditionally taken a liberal approach to the making of consent determinations. One recent example of such an approach is Leedham Papertalk & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd, [2009] NNTTA 159 (30 November 2009) (“Leedham Papertalk”). It is also the case that in a number of decisions, the Federal Court has looked beyond the persons comprising the Applicant to ascertain what are the wishes and aspirations of the claim group, and has held that unanimity is not necessarily a pre-requisite for action by the Applicant: see Butchulla People v Queensland (2006) 154 FCR 233 and Doolan v Native Title Registrar (2007) 158 FCR 56. Whether that principle of law should be followed subsequent to the 2007 amendments to the Act (see Sambo v Western Australia [2008] FCA 1575), is not necessary to consider for present purposes. What is clear is that it is appropriate, in particular circumstances, for the Tribunal to look beyond the persons comprising the Applicant to ascertain what are the wishes of the broader claim group when determining whether the make a consent determination.
[20] I am of the view that it is open to the Tribunal to make a consent determination even if, as is the case in this matter, a majority of the persons collectively comprising the Applicant, have neither executed the Ancillary Agreement or State Deed. In Leedham Papertalk, for example, the State Deed was not executed by any of the persons comprising the Applicant on a matter of principle but the Tribunal rectified this omission by the making of a consent determination. In this matter there is no matter of principle that has prevented the new Applicant re-executing the agreement, only logistic issues. Here there is an agreement negotiated and almost fully executed, which agreement is endorsed by the new Applicant and by the broader claim group. In these circumstances it is not only open to the Tribunal to make a consent determination, but also appropriate to do so.
Determination
By consent, the determination of the Tribunal is that the act, namely the grant of Exploration Permit 17068 to Ausgold Exploration Pty Ltd, may be done subject to compliance with the terms of the Ancillary Agreement between Ausgold Exploration Pty Ltd and Mr Andrew Anderson, Ms Christine Hero, Mr William Santo, Ms Elizabeth Dodd, Ms Priscillia Huen and Ms Gloria Santo on behalf of the Gudjala People (QUD 80/2005) as filed with the National Native Title Tribunal.
John Sosso
Deputy President
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