Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People
[2015] NNTTA 40
•7 September 2015
NATIONAL NATIVE TITLE TRIBUNAL
Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (7 September 2015)
| Application No: | NF2015/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd
(grantee party)
- and -
Alfred Boney, Maureen Sulter, Clifford Toomey, Lyall Munro Junior, Norman McGrady, Madeline McGrady, Leslie Woodbridge, Jason Wilson, Michael Anderson, Alfred Priestly, Ray Tighe, Greg Griffiths, Burrul Galigabali, Susan Smith, Richard Green, Raymond Welsh Senior, Elaine Binge, Bob Weatherall and Anthony Munro on behalf of the Gomeroi People
(native title party)
- and -
The State of New South Wales
(Government party)
FUTURE ACT DETERMINATION
Tribunal: | President RJ Webb QC |
Place: | Sydney |
Date: | 7 September 2015 |
| Catchwords: | Native title – future act – s 31(1)(b) agreement – Tribunal jurisdiction – agreement in principle – authority of applicant to execute agreement by majority – partially executed s 31 deed – effect of ss 41(1) and (2) – authorisation – authority and role of the applicant – native title party – registered native title claimant – conditions to be placed on determination – Tribunal to take into account any agreement on issues relevant to determination – the act may be done |
| Legislation: | Native Title Act 1993 (Cth), ss 28, 28(1)(g), 29, 30, 31, 31(1)(b), 30A, 33, 35, 36, 37(a), 38, 38(1)(b), 38(2), 39, 39(1), 39(4), 41(1), 41(2), 41A, 61(2), 66B, 148(a), 253 |
| Cases: | Daniel v Western Australia [2002] FCA 1147 (‘Daniel’) Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 (‘Evans’) QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019 (‘QGC’) State of Western Australia/Albert Darby Winder and others on behalf of The Malgana Shark Bay People/Hypermarket Pty Ltd [2009] NNTTA 173 (‘Hypermarket’) |
| Representatives of the grantee party: | Mr G Scott and Ms N Cooley, Ashurst |
| Representative of the native title party : | Mr P Teitzel, Teitzel & Partners |
| Representatives of the Government party: | Mr E Lee of counsel instructed by Mr M Ryan, Crown Solicitor’s Office (New South Wales) |
REASONS FOR DETERMINATION
This determination that the act may be done is made with the agreement of all parties, but in the absence of an agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). The agreement referred to in s 31(1)(b) is the agreement of the native title party to the doing of the proposed act, with or without conditions (s 31(1)(b) agreement). Had there been an agreement of that kind, the Tribunal would have been barred from making a determination by s 37(a) of the Act.
The question of whether there was a s 31(1)(b) agreement was highlighted in the future act determination application (the application) made by the grantee party on 20 May 2015 in relation to the proposed grant of mining lease application 404 (MLA 404).
The application referred to the right to negotiate process for MLA 404 which commenced on 22 September 2011. This was the notification date stated in the notice given by the Government party under s 29 of the Act of its intention to grant MLA 404 to the grantee party.
MLA 404 lies entirely within the area covered by the registered Gomeroi People native title determination application. Accordingly, the Gomeroi People are the native title party for the purposes of the negotiation procedure set out in s 31 of the Act. There is no other native title party in relation to MLA 404.
Section 31(1)(b) of the Act requires the grantee party, the native title party and the Government party, to negotiate in good faith with a view to obtaining the agreement of the native title party to the grant of MLA 404, either with or without conditions to be complied with by any of the parties. A party may not make a future act determination application until at least six months have passed from the notification day.
According to the grantee party’s application in this matter, despite extensive negotiations ‘parties have not been able to reach agreement about the act within 6 months of the notice being given’. The ‘act’ refers to the grant of MLA 404. The application explains further:
The grantee party and the native title party have reached agreement in principle about the doing of the act. Sixteen of the eighteen members of the Gomeroi Applicant have executed the agreement under section 31(1)(b) of the Native Title Act 1993 (Cth) (Section 31 Deed). However, two members of the Gomeroi Applicant have not executed the s 31 Deed to allow the act to be done.
The partially executed ‘Section 31 Deed’ was attached to the application (the Deed). The ancillary agreement said to form part of the Deed for the purposes of ss 41(1) and (2) of the Act was not provided, and is subject to a claim for confidentiality by the grantee party. The relevant effect of ss 41(1) and (2) is that if there is an agreement of the kind mentioned in s 31(1)(b) that an act may be done subject to conditions being complied with, those conditions have effect as if the conditions were terms of contract among the negotiation parties. If, as in this case, the native title party is a registered native title claimant, all persons in the native title claim group will also be bound by the conditions.
The partially executed Deed raises the issue whether there is, in fact, agreement of the native title party to the grant of MLA 404 whether or not subject to conditions. In particular, the signing of the agreement by sixteen of the eighteen members of the applicant highlights the question whether the applicant has authority to act by a majority in relation to a s 31(1)(b) agreement.
Although the native title party was represented before the Tribunal by Mr Tietzel, NTSCORP had previously acted for the native title claim group at the time of two meetings of the native title claim group in June 2011 and May 2013, and during negotiations in respect of the proposed grant of MLA 404. In order to pursue the question of the applicant’s authority, Mr Tietzel and NTSCORP between them provided the following documents:
(a)Meeting Protocol of the Gomeroi named applicant group (also annexed to the affidavit of Alf Priestly affirmed 16 July 2015 and said to be the protocol followed at Gomeroi Applicants’ meetings since September 2011);
(b)Extract from Gomeroi Authorisation meeting minutes – Friday 24 June 2011 and Saturday 25 June 2011;
(c)Extract from Gomeroi Authorisation meeting minutes – Friday 10 May 2013 and Saturday 11 May 2013; and
(d)Extract of Resolution # 10 from the 11 May 2013 meeting which sets out the agreed ‘Authority and Role of the Applicant’.
The material provided did not disclose any resolution that the applicant could act by a majority in relation to a s 31(1)(b) agreement, or generally, although the extract from the Gomeroi Authorisation meeting of 25 June 2011 indicated that the Gomeroi People native title claim group may make decisions by majority.
Resolution #10(d) from the 11 May 2013 meeting, discloses an ‘expectation’ that ‘[t]he Applicant must not execute any future act agreement ... unless they are expressly authorised by a resolution of the Gomeroi People native title claim group’. Apparently relying on this resolution, on 20 February 2015, NTSCORP (then representing the native title party in negotiations) advised the grantee party that ‘any agreement reached will require authorisation of the agreement by the Gomeroi People native title claim group, prior to execution of the agreement by the Gomeroi People Native Title Applicants’. Whatever the legal effect on the authority of the applicant of the ‘expectation’ expressed in Resolution #10(d), it was confirmed by Mr Tietzel that there was no resolution of the Gomeroi native title claim group authorising the applicant to execute the s 31(1)(b) agreement in this case.
I note also that neither the grantee party nor the Government party have signed the Deed, however as I understand the Government party’s position, it would be willing to proceed with the grant of MLA 404 on the basis that there is agreement of the kind mentioned in s 31(1)(b) if it were able to be satisfied that the applicant had authority to act by a majority in executing the agreement. The Government party has not indicated it has so been satisfied.
The native title party’s position is that there exists a s 31(1)(b) agreement, despite partial execution of the Deed by the native title party. To support this position reliance was placed, in the main, on a submission made by counsel for the Gomeroi Applicant during a hearing in the Federal Court on 10 March 2015 before Justice Jagot. That submission was based on counsel’s understanding that at the 2013 group meeting ‘there was a resolution ... that the applicant could act by majority’. Having seen the relevant extracts of the minutes of that meeting, that submission does not appear to have any evidential basis.
The native title party’s reliance on Daniel v Western Australia [2002] FCA 1147 as authority for the proposition that ‘not all persons who comprise the applicant need sign the relevant document, nor can a single person who is a member of the applicant veto the decision of the majority of the persons comprising the applicant’, is based upon a misreading of that case.
In the factual circumstances of Daniel, the question was whether a named applicant who had acted against a decision of the claim group and had not executed a State agreement had exceeded the authority given to him by the group. The overriding decision in the circumstances of that case was not ‘the decision of the majority of the persons comprising the applicant’ but the decision of the claim group which had, in accordance with its adopted decision making process, authorised the execution of a State agreement. It was for the applicant to put this into effect; the failure of one named applicant to execute the agreement led the Court to make an order under s 66B of the Act, replacing the applicant.
If there is any proposition to be derived from Daniel which may be relevant to this application, it is that a single person who is a member of the applicant cannot veto a decision of the claim group, where the authority of the applicant is subject to the direction of the group. In the present application, even if the ‘expectation’ in resolution #10(d), discussed at paragraph [11] above, had been expressed to have binding effect on the applicant, it has been confirmed that there has been no resolution of the Gomeroi native title claim group authorising the applicant to execute the s 31(1)(b) agreement.
The proposition to be derived from QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019, is to similar effect. In that case, the court considered that the applicant’s role is to represent the wider claim group, and that one or more members of the applicant could not veto an indigenous land use agreement where the authorisation process shows that the wider claim group has authorised it.
Both the grantee party and the Government party submit that there was no s 31(1)(b) agreement, but for different reasons. The Government party’s position is based upon an interpretation of ‘native title party’ in s 30 of the Act, which led it to submit that each member of the applicant was separately a ‘native title party’ and each of the persons who are a member of the applicant were required to sign the Deed. The flaw in that interpretation is the failure to have regard to s 61(2) of the Act, which when read with the definition of ‘registered native title claimant’ in s 253, and s 30, makes clear that the native title party is the ‘person..., or the persons [who] are jointly, the applicant’. I do not accept that a different interpretation is to be applied to ‘registered native title claimant’ when used in relation to future act determination applications than when used in relation to s 61(2) applications.
The grantee party relies upon not only the partial execution of the Deed by the native title party, but also the non-execution by both the grantee party and the Government party. In its terms, the Deed is expressed not to commence and become binding until it has been signed by all negotiation parties.
While s 31(1)(b) focuses on the consent of the native title party to the act being done, with or without conditions, what is required is an agreement between the ‘negotiation parties’, in this case, a tripartite agreement. While there is no express requirement that a s 31(1)(b) agreement is to be in writing, it is implicit in s 41A of the Act which requires copies of agreements be provided to the Tribunal. I agree with the grantee party that the requirement for a binding written agreement reflects the serious consequences of invalidity which follows where the requirements of s 28 of the Act are not met. Relevantly s 28(1)(g) ensures the validity of a future act if a s 31(1)(b) agreement is made.
I agree with the grantee party that the partially executed Deed is not a s 31(1)(b) agreement. Having formed the view that there is no s 31(1)(b) agreement, there is no statutory bar to the Tribunal proceeding to make a determination in this application.
I am required to make one of three determinations, namely that: the act must not be done; the act may be done; or the act may be done subject to conditions to be complied with by any of the parties. Section 38(2) of the Act prohibits the determination of a condition that has the effect of entitling native title parties to payments worked out by reference to the amount of profits made; any income derived; or any things produced by the grantee party. Parties can voluntarily enter into an agreement in such terms: s 33. Nor can the Tribunal determine any compensation pursuant to Division 5 of Part 2 of the Act: see Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193, 196-205.
In making a determination, I must have regard to the criteria enumerated in s 39 of the Act. These include the effect of MLA 404 on: the enjoyment by the Gomeroi people of their registered native title rights and interests; the development of their social, cultural and economic structures; their freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Gomeroi people in accordance with their traditions.
I am also required to take into account the interests, proposals, opinions or wishes of the Gomeroi people in relation to the management, use or control of the land or waters affected by MLA 404; the economic or other significance of MLA 404 to Australia, the State of New South Wales, the local region and the Aboriginal peoples and Torres Strait Islanders who live there; the public interest in MLA 404; and the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and the existing use of the land or waters by persons other than the Gomeroi people. Lastly, I must take into account any other matter that I consider to be relevant.
If there are any issues relevant to the determination on which the negotiation parties agree, and if all the negotiation parties consent, in making my determination I must take that agreement into account, and need not take into account the matters I have referred to in paragraphs [24] and [24] above, to the extent that the matters relate to the issues agreed: see s 39(4).
The grantee party initially sought a ‘consent determination’ which reflects the ‘in principle’ agreement between negotiation parties about the grant of MLA 404. It was submitted that I could make a determination that the act could be done, subject to a condition that the parties be ‘bound by’ the terms of the ancillary agreement, which has not been provided to the Tribunal. The condition was sought ‘to ensure that the consent determination binds the parties to the commercial arrangement they have negotiated for the grant of [MLA 404], having regard to the effect of s 41(1) of the Act’.
The grantee party submitted that making it a condition of the determination that the parties ‘be bound’ by the ancillary agreement does not make the terms of the agreement themselves conditions of the determination, relying on State of Western Australia/Albert Darby Winder and others on behalf of The Malgana Shark Bay People/Hypermarket Pty Ltd [2009] NNTTA 173 (Hypermarket) at [35]. In Hypermarket (at [33]), the Tribunal drew a distinction between a determination made ‘subject to’ or ‘pursuant to’ an agreement, and a determination made on condition that the parties are ‘bound by’ an agreement.
Even if such a distinction can be drawn (of which I am not convinced), in circumstances where I have concluded that there is no s 31(1)(b) agreement it is not then a matter for me to interfere in contractual relations between the parties by purporting to give binding effect to an incomplete agreement. This is particularly so where there remains an outstanding question as to whether the future act agreement requires a resolution of the Gomeroi native title claim group.
In my view, the appropriate course is to use s 39(4) of the Act which requires that, if negotiation parties consent, I take into account any agreement on issues relevant to my determination. This may include any conditions to be determined. To this end, I directed parties to confer for the purpose of reaching agreement in relation to issues relevant to the determination, including any conditions to be imposed. The directions provided each party with the opportunity to make submissions in relation to the criteria in s 39(1) of the Act and any conditions to be imposed which are not agreed.
After conferring, the parties filed joint submissions setting out the following areas of agreement:
(a)that parties have negotiated in good faith in accordance with s31(1)(b) of the Act;
(b)in relation to the effect of the grant of MLA 404 on the matters set out in s 39(1)(a) of the Act:
i.the native title party and the grantee party agree that the grant will have no significant adverse effect on those matters; and
ii.the Government party relies upon the agreement of the native title party and the grantee party as above and makes no further submissions;
(c)parties have conferred as to the matters set out in s 39(1)(b)-(f) and each party agrees to make no further submissions on these matters;
(d)parties have conferred as to whether any condition should be imposed on the determination, and each party agrees that no condition should be imposed;
Each party consented to me taking the matters in paragraph [30] above into account for the purpose of making a determination under s 38 of the Act. The joint submission was that I determine under s 38(1(b) of the Act that the grant of MLA 404 may be done without conditions.
In accordance with that submission, I make the following determination.
Determination
The determination of the Tribunal is that the act, being the grant of mining lease 404 under the Mining Act 1992 (NSW) may be done.
Raelene Webb QC
President
7 September 2015
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