Bradley Foster & Ors (Waanyi Peoples) & Alfie Johnny & Ors (Gangalidda & Garawa Peoples #2)/Terence John Burt, Judy-Anne Galway & Robert William Kirkby/Queensland
[2007] NNTTA 50
•5 June 2007
NATIONAL NATIVE TITLE TRIBUNAL
Bradley Foster & Ors (Waanyi Peoples) & Alfie Johnny & Ors (Gangalidda & Garawa Peoples #2)/Terence John Burt, Judy-Anne Galway & Robert William Kirkby/Queensland; [2007] NNTTA 50 (5 June 2007)
Application No: QF07/1, QF07/2 & QF07/3
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into a future act determination application
Bradley Foster and Ors on behalf of the Waanyi Peoples (first native title party)
- and -
Alfie Johnny and Ors on behalf of the Gangalidda & Garawa Peoples #2
(second native title party)
- and -
Terence John Burt, Judy-Anne Galway and Robert William Kirkby
(grantee party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 5 June 2007
Representatives:
Government party: Mr Malcolm Heather, Department of Natural Resources and Water
Native title party: Ms Clare Farley, Carpentaria Land Council Aboriginal Corporation
Grantee party: Mr Terence John Burt
Catchwords: Native title – future act – application for determination for the grant of exploration permits – mineral tenements – 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:Butchulla People v Queensland (2006) 154 FCR 233
Button v Chapman [2003] FCA 861 (20 August 2003)
Doolan v Native Title Registrar [2007] FCA 192 (23 February 2007)
Foster v Copper Strike Ltd (2006) 200 FLR 182
Foster/Johnny/Queensland/Burt, Galway and Kirkby [2007] NNTTA 27 (26 March 2007)
Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 164 (21 December 2006)
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
REASONS FOR FUTURE ACT DETERMINATION
On 11 January 2006, the government party gave notice under section 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permits EPM 15129, 15136 and 15154 (“the proposed tenements”) pursuant to the Mineral Resources Act 1989 (Qld) to Terence John Burt, Judy-Anne Galway and Robert William Kirkby (“the 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) and also the General Conditions Version 1 of 1 October 2003 and the Native Title Protection Conditions 1.1(a) of 22 August 2003. The government party further asserted that the grant of each of the proposed tenements would attract the expedited procedure.
Details of the proposed tenements are set out below:
(a) the tenements are located in north west Queensland, north of Mount Isa;
(b) EPM 15129 is comprised of 9 parts which are located south-west of Doomadgee in the Mount Isa and Burke Shires covering an area of approximately 110 km2 within the boundaries of the Waanyi Peoples registered native title claimant application (QUD6022/99) (“the first native title party”);
(c) EPM 15154 is located south of Doomadgee in the Mt Isa Shire covering an area of approximately 320km2 within the boundaries of the Waanyi Peoples registered native title claimant application;
(d) EPM 15136 is located west of Doomadgee near the Northern Territory border in the Burke Shire and covers an area of approximately 327km2 within the boundaries of the Waanyi Peoples registered native title claimant application and the Gangalidda & Garawa People #2 registered native title claimant application (QUD66/05) (“the second native title party”).
On 9 May 2006 the first and second native title parties lodged with the Tribunal expedited procedure objection applications pursuant to section 32(3) of the Act. The Tribunal convened a Preliminary Conference on 6 June 2006 at which time each of the objections was dealt with. Subsequently a number of Status Conferences were convened to ascertain if agreement could be reached in each matter or whether any or all of the matters should be listed for hearing.
On 22 March 2007 the Tribunal was advised by the government party, pursuant to section 32(7) of the Act, of its withdrawal of the assertion that each proposed future act attracted the expedited procedure. On 26 March 2007 the Tribunal formally dismissed each of the expedited procedure objection applications – Foster/Johnny/Queensland/Burt, Galway and Kirkby [2007] NNTTA 27 (26 March 2007). 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 were required to negotiate in good faith with a view to obtaining the agreement of the native title parties to either the doing of the future acts conditionally or unconditionally.
Each of the native title parties lodged on 26 March 2007 future act determination applications pursuant to sections 35 and 75. Each application was made more than six months after the notification day – section 35(1)(a).
In its section 35 applications, the first native title party stated that agreement had been reached in principle with the grantee party for each of the proposed tenements, but was unable to execute the necessary documentation in final form. The reason for this was set out as follows:
“The Grantee Party and the Native Title Party have effectively reached agreement, however, this agreement has not been executed due to six of the 28 people who make up the applicant not having signed the agreement. Three of these people are deceased. Two persons have refused to sign for personal reasons that are unrelated to the content of the agreement. One person has not yet had the opportunity to sign. The Waanyi native title claim group has at meetings agreed that this agreement should be executed by the people who make up the applicant.”
Subsequently Ms Clare Farley, a Legal Officer employed by the Carpentaria Land Council Aboriginal Corporation (“CLCAC”), filed sworn Affidavits outlining the relevant facts and circumstances pertaining to the first native title party. CLCAC is the representative body for the area covered by the proposed tenements. Whilst Ms Farley deposes that Chalk and Fitzgerald Lawyers and Consultants is the solicitor on the record for the Waanyi Peoples in the substantive Federal Court proceedings. CLCAC has instructions to act for the first native title party in relation to certain future act matters, including the matters before the Tribunal.
For the purposes of this Determination the Tribunal relies upon the following facts as outlined in Ms Farley’s Affidavit filed with the Tribunal on 26 March 2007 in relation to QF07/3:
“The Waanyi Native Title party’s Instructions to CLCAC
18.The Waanyi people met in Doomadgee on 15 December 2005 and gave the CLCAC instructions to proceed with all future proposed ancillary agreements that provided benefits that were substantially better than those afforded by the Native Title Protection Conditions and emphasised their desire for all future act negotiations to be progressed smoothly and positively.
19.The Waanyi people met in Doomadgee on 22 and 23 August 2006 and confirmed the CLCAC’s instructions to proceed with the ancillary agreements in relation to EPMs 15129, 15136, and 15154.
20.The ancillary agreement negotiated for EPMs 15129, 15136 and 15154 is of a standard that accords with the instructions of the Waanyi people to CLCAC obtained at the meeting on 15 December 2005.
21.The proposed ancillary agreement for EPM 15136 (the ancillary agreement) is in substantially the same terms as that used for EPMs 15186 and 15187 following the decision in Bradley Foster & Ors (Waanyi Peoples)/Summit Resources (Aust) Pty Ltd/Queensland; [2006] NNTTA 164 (21 December 2006). … …
Waanyi Native Title Applicant – missing signatures on the ancillary agreement
28.There are 28 people who make up the applicant for the Waanyi native title claim. Of these, three people are deceased.
29.The ancillary agreement could not be executed by the deceased persons who are Mr Peter Bell, Mr Henry Daly and Mr Roy Seccin.
30.The spelling of Mr Roy Second’s surname on his death certificate is shown as ‘Seccin” which differs from the spelling shown in his affidavit and on the Waanyi native title claim application.
31.Both the names Roy Seccin and Roy Second identify one and the same person for the purposes of the Waanyi native title claim application and all related future act matters. A finding of fact was made in this regard in the matter of Bradley Foster & Ors (Waanyi Peoples)/Summit Resources (Aust) Pty Ltd/Queensland; [2006] NNTTA 164 (21 December 2006.
32.23 people have executed the ancillary agreement.
33.Ms Hazel Sewter has not signed the agreement. Ms Sewter is an elderly lady and over the past 2 years has become tired and resentful of the regular need to sign documents and participate in other claim matters. In late July 2005 Ms Sewter was contacted to sign several outstanding Waanyi agreements. Ms Sewter refused to sign them and was verbally abusive to the two CLCAC officers who had contacted her. In the first week of August 2005 Ms Sewter was again contacted by telephone and asked if she would sign several agreements. Ms Sewter hung up on the CLCAC staff member. In relation to the Terrence John Burt agreements Ms Sewter again refused stating that she had told CLCAC staff on numerous occasions that she would not sign and that her position would not change as she was no longer interested in these matters.
34.Ms Sewter has, in the past, signed other ancillary agreements that have the same terms as the Terrence John Burt agreement. I believe her reasons for not signing the agreement are personal and are solely related to the process with which she has become frustrated. I believe her reasons for not signing this agreement have nothing to do with the content of the agreement.
35.Mr Peter O’Keefe has refused to sign the agreement. Mr O’Keefe was invited to, but did not attend the meetings held in Doomadgee on 4 April 2006 or 22 and 23 August 2006. Mr Peter Cameron, a member of the Waanyi claim group, asked Mr O’Keefe to sign the agreement when he visited him at his residence in Doomadgee. Mr. Cameron then contacted me by telephone and advised that Mr O’Keefe had refused to sign the agreement. It is my understanding from Peter Cameron, that Mr O’Keefe refused to sign the agreement for personal reasons, and that his refusal is not specific to the Terrence John Burt agreement.
36.I believe Mr O’Keefe will not sign any Waanyi agreements. He has refused to sign other Waanyi s31 ancillary agreements. I believe his reasons for refusing to sign are based on long standing disagreements between himself, other members of the Waanyi claim group, and other Traditional Owners in the Gulf.
37.Some of the other Waanyi People who comprise the Applicant are aware of Mr O’Keefe’s refusal to act according to their instructions.
38.Staff of the CLCAC have attempted to talk to Peter O’Keefe and explain the importance of signing these agreements, but have been unsuccessful.
39.I do not believe that Peter O’Keefe has raised any concerns regarding the negotiations with the grantee party. As far as I am aware, Peter O’Keefe has made no comments in relation to the content of the agreement.
Missing signatures on the section 31 Deed
40.Ms Hazel Sewter and Mr Peter O’Keefe have not signed the section 31 Deed for the same reasons as those for which they have not signed the ancillary agreement.
41.Mr Charlie Jack has not signed the section 31 Deed. When CLCAC field staff visited him to obtain his signature for the ancillary agreement they did not have the Deed with them. Since that time and at later stages (on 19 July 2006 and 12 October 2006), field staff have attempted to locate Mr Jack to obtain his signature on the deed but have been unable to locate him. Mr Jack moves between Borroloola, Seven Emus outstation, Doomadgee and Mt Isa and has been very difficult to locate. Mr Jack does not make his whereabouts known to field staff and is not contactable by telephone. CLCAC field staff rely on the information provided by other traditional owners and on the occasions they have gone in search of Mr Jack, this information has been incorrect.
The Benefit of the Ancillary Agreement to the Waanyi People
42.The ancillary agreement provides benefits which are substantially better than those afforded by the Native Title Protection Conditions.
43.The Waanyi People’s primary concern is cultural heritage protection. They have raised concerns on numerous occasions that the native Title Protection Conditions do not adequately protect their cultural heritage.
44.The ancillary agreement reflects the Waanyi People’s concerns. For example, if requested by the Waanyi People, Work Area Clearances (cultural heritage surveys) are allowed for all exploration activities involving a physical presence on the ground.
45.The survey team can consist of up to eight (8) Waanyi People and up to eight (8) are to be paid. The Native Title Protection Conditions (NTPCs) only allow payment for four (4) people.
46.The ancillary agreement provides for a pay rate of $370 per monitor and survey participant per day. The NTPCs provide for a pay rate of $330.47 per monitor and survey participant per day.
47.Under the ancillary agreement 2 monitors are permitted during a range of activities. If considered necessary by either party under the ancillary agreement, an Anthropologist is permitted to attend Surveys. The NTPCs require consent from the Explorer.
48.A cultural induction workshop is provided for under the ancillary agreement. Up to four Waanyi People and a Waanyi project coordinator may present the workshop to ensure better cross cultural understanding between the grantee party and native title party.
49.By way of employment opportunities there is provision for a ‘Project Coordinator’ to liaise between the Explorer and the Waanyi People for the purpose of coordinating cultural heritage surveys.
50.The ancillary agreement provides for full or part-time employment for two people from the claimant group as filed assistants during the term of the agreement. There is no such opportunity under the NTPCs.
51.I am of the opinion that the Waanyi native title party have consented to enter into the proposed ancillary agreement with the grantee party for EPM 15136 and that they have provided these instructions to the CLCAC.
The second native title party was also unable to finally execute an agreement with the grantee party due to the fact that two of the persons who collectively constitute the Applicant had passed away, namely Mr Alfred (Alfie) Johnny and Mr Jimmy Pyro. Ms Farley filed with the Tribunal copies of the Death Certificates for both persons. Mr Johnny passed away on 30 May 2005 and Mr Pyro passed away on 15 September 2005. As to the instructions provided to CLCAC by the second native title party, Ms Farley deposed as follows:
“22. On 6 and 7 July 2005 the CLCAC convened a meeting with members of the Gangalidda and Garawa native title claim group in Burketown. The Gangalidda and Garawa people instructed the CLCAC to negotiate s31 ancillary agreements that include a particular standard of benefits and cultural heritage protection.
23. The ancillary agreement between the Gangalidda and Garawa people and the grantee party for EPM 15136 is in exactly the same terms as the ancillary agreement for the Waanyi people for EPM 15136 and has been executed by all living members of the named applicant for the Gangalidda and Garawa native title party.
24. The ancillary agreement between the Gangalidda and Garawa people and the grantee party for EPM 15136 has not been executed by the two deceased members of the Gangalidda and Garawa applicant who are Mr Alfie Johnny and Mr Jimmy Pyro….
26. The ancillary agreement between the Gangalidda and Garawa people and the grantee party negotiated for EPM 15136 is of a standard that accords with the instructions of the Gangalidda and Garawa people to CLCAC obtained at the meeting of 6 and 7 July 2005.”
The Tribunal convened a Directions Hearing at which time each of the negotiation parties were represented. Each confirmed that they were in full accord and each consented to, and requested, that the Tribunal make a determination under section 38 of the Act that the future acts be done subject to the terms of the Ancillary Agreements reached between the first and second native title parties and the grantee party. The oral submissions of the parties were consistent with the written materials filed with the Tribunal.
The following twenty-eight persons collectively comprise the Applicant of the Waanyi Peoples native title determination application:
(a) Bradley Foster; (o) Peter Bell; (Deceased)
(b) Charlie Jack (Snr); (p) Peter O’Keefe;
(c) Danny Fowler; (q) Reggie Carlton;
(d) David Darby; (r) Roy Second; (Deceased)
(e) Don George; (s) Russell Rockland;
(f) Douglas Willets; (t) Tony Douglas;
(g) Edwin Jacob; (u) Troy Hookey;
(h) Gordon Douglas; (v) Ada Walden;
(i) Henry Aplin; (w) Del Burgen;
(j) Henry Daly; (Deceased) (x) Hazel Sewter;
(k) Jack Hogan; (y) Mary Cameron;
(l) Kevin Cairns; (z) Maureen Gregory;
(m) Maxwell King; (aa) Nancy George;(n) Neville Barclay; (bb) Shirley Chong.
The following ten persons collectively comprise the Applicant for the Gangalidda & Garawa People #2 native title determination application:
(a) Mr Alfred Johnny (Deceased); (b) Ms Clara Foster;
(c) Mr Murray Walden Jnr; (d) Mr Terrance Taylor;
(e) Mr Jimmy Pyro (Deceased); (f) Mr Jacky Green;
(g) Mr Jack Hogan; (h) Mr Hilton Charlie;(i) Mr Albert Charlie.
The Tribunal has previously been provided with the Death Certificates of Mr Peter Bell, Mr Henry Daly and Mr Roy Seccin. The recorded date of death respectively of each of these gentlemen is 13 February 2005, 22 July 1999 and 3 March 2006. The Tribunal has also accepted that Mr Roy “Seccin” and “Second” are one and the same person. The Tribunal has already made two consent determinations involving the first native title party: Foster v Copper Strike Ltd (2006) 200 FLR 182 and Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 164 (21 December 2006).
The evidence presented to the Tribunal in this matter is very similar to that presented in Foster v Copper Strike Ltd (2006) 200 FLR 182 and Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 164 (21 December 2006). There is currently an impasse within the first native title party brought about by two circumstances. Firstly, and primarily, the fact that initially Mr O’Keefe, and now also Ms Hazel Sewter, have unilaterally determined not to execute agreements entered into by the wider claim group. Their blanket refusal is, apparently, not predicated on the formation of a considered view about the merits or otherwise of the proposed agreements, but relates to extraneous matters. Secondly, due to the very large number of persons who collectively comprise the applicant, issues necessarily arise either due to the death, illness or absence of such persons resulting in CLCAC being unable to obtain their signatures.
When a negotiation party makes a future act determination application under sections 35 and 75, the Tribunal must make a determination pursuant to section 38. The criteria for making such a determination is set out in section 39. Normally when making a future act determination the Tribunal carries out a formal and detailed inquiry, sometimes with the benefit of oral evidence. However, the Tribunal also accepts that it can undertake an abbreviated inquiry if all of the negotiation parties are in accord and consent to the Tribunal making a particular determination. The relevant legal principles underpinning the Tribunal’s approach to consent determinations is set out in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 and Foster v Copper Strike Ltd (2006) 200 FLR 182. I adopt, for the purposes of this inquiry, the statements of law underpinning consent determinations which are set out in those determinations.
A key provision central to consent determinations is subsection 39(4). Basically that subsection provides that before making a determination the Tribunal must ascertain if there are issues on which the negotiation parties agree. If there are issues on which the negotiation parties are in accord, and the parties consent, the Tribunal must take them into account and need not take into account matters outlined in subsection 39(1) to the extent that the agreed matters relate to those issues. “Agreement” in this context should be interpreted liberally and logically would cover both partial agreements as well as “in principle” agreements which cannot be formally executed – Foster v Copper Strike Ltd (2006) 200 FLR 182 at 189 – 190.
Another key provision is subparagraph 39(1)(b) which requires the Tribunal to take into account the interests, proposals or wishes of a native title party. The “native title party” in this context is the claim group. Consequently, when making a section 38 determination, the Tribunal has both the mandate and the duty to consider the opinions and wishes of the Waanyi and Gangalidda and Garawa Peoples. The clear desire of the Waanyi Peoples was manifested at the meeting held in Doomadgee on 22 and 23 August 2006 where the claim group determined that it was in their interest to execute agreements with explorers that provided benefits that exceeded those contained in the standard native title protection conditions. Similarly, the Gangalidda and Garawa People reached a similar conclusion at the Burketown meeting held on 6 and 7 July 2005. In this matter I have taken into account that the accords reached do provide superior benefits to that provided under the Native Title Protection Conditions and are of a type that have been endorsed “in principle” by the wider claim groups.
It is also of some importance that the native title parties are legally represented. In this matter the native title parties are represented by CLCAC, the representative body for the area covered by the proposed tenements. In Monkey Mia Deputy President Sumner said (at 370 – 371):
“Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has been properly given, based on the established decision-making processes of the native title claim group. The fact that a representative Aboriginal and Torres Strait Islander body is involved in assisting the native title party (s 202 of the Native Title Act) would give weight to a decision that a consent determination is appropriate.”
In this matter it is clear that the native title parties received appropriate and independent legal advice and assistance throughout its negotiations with the grantee and government parties. There has been, ostensibly, parity of bargaining power, and the “consent” of the native title parties for the Tribunal to make section 38 determinations has been the result of a considered process of negotiation.
The key issues flowing from the evidence presented are as follows:
(a) the terms of the ancillary agreements for the proposed tenements are similar to those the subject of the determination in Foster v Copper Strike Ltd (2006) 200 FLR 182 and Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 164 (21 December 2006). In those matters the Tribunal determined that it was appropriate to make consent determinations in accordance with the submissions of the negotiation parties;
(b) the terms of the ancillary agreements provide benefits to the native title parties that exceed comparable provisions in the native title protection conditions;
(c) both native title parties specifically determined to give instructions to CLCAC to proceed to negotiate ancillary agreements that provide benefits substantially better than those afforded by the native title protection conditions;
(d) the refusal of Mr O’Keefe and Ms Sewter to execute the ancillary agreements is not unrelated to the terms of the agreements, nor does their refusal relate to an objection to the doing of the future acts. The evidence suggests that their refusal is founded on unrelated and personal matters;
(e) three of the persons comprising the Applicant of the first native title party and two of the persons comprising the Applicant of the second native title party have passed away, and their deaths occurred prior to the negotiations with the grantee party with respect to the proposed tenements;
(f) the native title parties are legally represented, and throughout the negotiations received independent advice;
(g) the legal representative of the native title parties is the representative body for the area of the proposed tenements;
(h) the government party has filed material with the Tribunal, and both the government and grantee parties presented oral submissions, which unequivocally demonstrate their support for consent determinations.
I have considered the terms of the ancillary agreements and consider that they are of a type that can be properly made the subject of conditional determinations pursuant to subsection 38(1)(c). In accordance with the previous consent determinations made in relation to the first native title party, I have determined that it is sufficient that the consent determinations simply refer to the conditions of the ancillary agreements as filed with the Tribunal, and that the agreements need not be attached to the consent determinations.
I also note for the record, that until such time as there is a rationalisation of both the Waanyi and Gangalidda and Garawa Peoples #2 native title claimant applications to remove deceased persons and replace individuals who refuse (without good reason) to execute agreements, it is likely that the Tribunal will continue to be asked to make consent determinations to facilitate commercial arrangements of the type dealt with hereunder. The consent determination jurisdiction of the Tribunal provides a mechanism to overcome some of the problems that arise when persons who comprise an Applicant fail to execute agreements for reasons that are unrelated to the merits of the document. Provided that the Tribunal is presented with appropriate material to justify the enlivening of this jurisdiction, it is desirable that every effort should be made to streamline the process to ensure that future act determinations can be made in a timely and cost effective manner for the negotiation parties. The Tribunal will work with the State of Queensland and representatives of native title and grantee interests to ensure that this jurisdiction can be accessed appropriately and that inadvertent legal impediments are cleared away to facilitate agreement making for native title claimants as well as the exploration industry.
Finally, it should be noted that there has been an increasing trend in Federal Court decisions to give explicit recognition to the fact that “the position of an applicant …does not involve a personal right” – per Kiefel J Button v Chapman [2003] FCA 861 at [9]. The Court has held that authorisation of a person to act as one or more persons as an applicant, involves acting in a representative capacity. Persons appointed as an applicant are authorised to act in that capacity until the claim group revokes that appointment or until they are unable or unwilling to act in that capacity. As Kiefel J said “the inability of one to continue does not affect the authorisation of the others” – Butchulla People v Queensland (2006) 154 FCR 233 at [43]. More recently Spender J in Doolan v Native Title Registrar [2007] FCA 192 made the following observations:
“57However, I think that an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of a native title claim group is an authorisation for the named persons to act, or so many of them as remaining willing and able to act. It is these persons who constitute the ‘applicant’. There is, in my opinion, an implication in an authorisation of a group to act collectively in a representative capacity that that authorisation has to be understood as recognising the vicissitudes that accompany joint action, particularly where (as is frequently the case) the persons authorised to make an application for a native title determination are elderly, and subject to the possible incidents of old age.
58. No differentiation, it seems to me, is to be made as to the capacity of a person in a group to act, and that person’s willingness to continue to act as a member of the group.”
The decisions of their Honours will certainly provide much more flexibility in dealing with the “vicissitudes” of decision making that often arise in commercial negotiations. However, a “consent” determination is just that. It requires the consent of each of the negotiation parties. In any particular instance, whether any or all of the negotiation parties are prepared to submit to the jurisdiction of the Tribunal will be dependent on a range of factors. Claim group decision making is inherently complex, and their Honours have both recognised that when persons are appointed as applicant, such appointment may itself be qualified. Accordingly, there will continue to be a need for parties to approach the Tribunal to make consent determinations, even though the above decisions may result in more commercial arrangements being entered into without the need for Tribunal involvement. What can be stated with some degree of certainty is that the above decisions comport comfortably with the philosophy underpinning the many Tribunal determinations on consent determinations. The core rationale of those determinations is that it is appropriate to make a determination where it is clear that a commercial arrangement has the broad support of a claim group and which advances their interests. The consent determinations collectively also reject the proposition that a minority of persons who collectively comprise an applicant can subvert the interests of a claim group where the rationale for the minority in failing or refusing to execute an agreement has nothing to do with either commercial or cultural considerations.
Determination
By consent, the determination of the Tribunal is that the acts, namely the grant of Exploration Permits 15129, 15154 and 15136 to Terence John Burt, Judy-Anne Galway and Robert William Kirkby, may be done subject to compliance with the terms of each of the “Native Title and Heritage Protection Agreement” as filed with the National Native Title Tribunal in relation to both the Waanyi People and the Gangalidda and Garawa Peoples #2.
John Sosso
Deputy President
2
6
0