Bradley Foster & Ors (Waanyi Peoples)/Johnny Frogg & Ors (Kalkadoon People #4)/Zinifex Australia Ltd/ Terence John Burt, Judy-Anne Galway & Robert William Kirkby/Queensland - [2007] NNTTA 92

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi Peoples)/Johnny Frogg & Ors (Kalkadoon People #4)/Zinifex Australia Ltd/ Terence John Burt, Judy-Anne Galway & Robert William Kirkby/Queensland; [2007] NNTTA 92 (24 October 2007)

Application Nos: QF07/4 & QF07/5

IN THE MATTER of the Native Title Act1993 (Cth)

- and –

IN THE MATTER of an inquiry into future act determination applications

Bradley Foster and Ors on behalf of the Waanyi Peoples (first native title party)

Johnny Frogg & Ors on behalf of the Kalkadoon People #4 (second native title party)

- and -

Zinfiex Australia Limited (first grantee party)

- and -

Terence John Burt, Judy-Anne Galway and Robert William Kirkby
(second grantee party)

- and -

State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane
Date: 24 October 2007

Representatives:

Government party: Ms Sandy Tam, Department of Natural Resources and Water
Native title party: Ms Clare Farley, Carpentaria Land Council Aboriginal Corporation

Grantee parties: Mr Terence John Burt

Catchwords: Native title – future acts – applications 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, 66B, 75

Cases:Butchulla People v Queensland (2006) 154 FCR 233
Button v Chapman [2003] FCA 861
Chapman v Queensland (2007) 159 FCR 507
Button v Chapman [2003] FCA 861 (20 August 2003)
Doolan v Native Title Registrar (2007) 158 FCR 56

Foster v Copper Strike Ltd (2006) 200 FLR 182
Foster & Ors/Connelly/Condren & Ors/Queensland/Zinifex Australia Limited/Metex Resources Limited/Burt, Galway and Kirkby/Teck Cominco Australia Pty Ltd [2007] NNTTA 64 (27 July 2007)
Foster & Ors/Johnny & Ors/Burt, Galway and Kirkby/Queensland [2007] NNTTA 50 (5 June 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
Moore v Mungeranie (2005) 193 FLR 62
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FLR 442

REASONS FOR FUTURE ACT DETERMINATIONS

On 31 May 2006, the government party gave notice under section 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Exploration Permit EPM 15283, (“the first proposed tenement”) pursuant to the Mineral Resources Act 1989 (Qld) to Zinifex Australia Limited (“the first grantee party”). On 1 December 2006, the government party gave notice under section 29 of the Act of its intention to grant Exploration Permit EPM 15391 (“the second proposed tenement”) pursuant to the Mineral Resources Act 1989 (Qld) to Terence John Burt, Judy-Anne Galway and Robert William Kirkby (“the second grantee party”).
Both notices 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 notices also stated that it was proposed to grant the Exploration Permits subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 1, 1 October 2003 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 would attract the expedited procedure – section 29(7).
Details of the proposed tenements are set out below:
(a)    the tenements are located in north west Queensland, north of Mount Isa;
(b)    EPM 15283 is comprised of 2 parts which are located south of Doomadgee in the Burke Shire covering a total area of approximately 393 km² within the boundaries of the Waanyi Peoples registered native title claimant application (QUD6022/99) (“the first native title party”);
(c)    EPM 15391 is located north of Gunpowder in the Burke Shire covering an area of approximately 324km²within the boundaries of the Waanyi Peoples registered native title claimant application;
On 28 September 2006 (EPM 15283) and 30 March 2007 (EPM 15391) the first native title party and on 2 April 2007 (EPM 15391) the second native title party lodged with the Tribunal expedited procedure objection applications pursuant to section 32(3) of the Act. The Tribunal convened preliminary conferences on 24 October 2006 and 17 April 2007, at which time each of the objections was dealt with. Subsequently, 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 18 July 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 27 July 2007 the Tribunal formally dismissed each of the expedited procedure objection applications – Foster & Ors (Waanyi People)/Connelly (Mitakoodi & Mayi People)/Condren & Ors (Kalkadoon People #4)/Queensland/Zinifex Australia Limited/Metex Resources Limited/Burt, Galway and Kirkby/Teck Cominco Australia Pty Ltd, [2007] NNTTA 64 (27 July 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 was 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.
On 2 August 2007 the first 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 – section 35(1)(a).
In its future act determination applications, the first native title party stated that while agreement had been reached in principle with the grantee party for each of the proposed tenements, the agreements had not been executed by the first native title party. The reason for this was explained as follows:
“Four of these people are deceased. One person has refused to sign for personal reasons that are unrelated to the content of the agreement. The CLCAC does not have the resources or necessary staffing capacity at present to obtain the remaining signatures. The remaining members of the applicant live in remote parts of Queensland and the majority are difficult to contact and/or locate. The Waanyi native title claim group has at meetings agreed that this agreement should be entered into for the benefit of the claim group.”

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 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 2 August 2007 in relation to QF07/5:
“The Waanyi Native Title party’s Instructions to CLCAC
18.The Waanyi people met in Doomadgee on 15 December 2005 and instructed the CLCAC to proceed with all 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 15329 (sic), 15136 and 15154.
20.On 7 June 2007 (sic) the Native Title Tribunal made a future act consent determination in relation to EPMs 15129, 15136 and 15154 may be granted subject to compliance with the terms of the ancillary agreements negotiated for each EPM.
21.The ancillary agreement for EPM 15391 is in the same terms as the agreements negotiated for EPMs 15129, 15136 and 15154.
Native Title Party’s consent to the use of the terms in the ancillary agreement
22.The Waanyi people met in Doomadgee on 18 April 2007 and passed a resolution that confirmed the instructions to the CLCAC that were obtained at the meeting on 15 December 2005.
23.I was present at the meeting of 18 April 2007 and read out the resolution referred to in paragraph 19 of this affidavit as follows:
a)    The Waanyi people confirm our instructions to CLCAC to negotiate s 31 ancillary agreements that provide substantially better benefits than those provided under the Native Title Protection Conditions.
b)    The Waanyi people agree that indicia of the standard of agreement referred to in a) includes but is not limited to the terms of the agreements negotiated for EPMs 15129, 15136 and 15154.
c)     Where the necessary time and resources are available to the CLCAC the Waanyi people instruct the CLCAC to lodge s 35 consent determination applications where in-principle exploration agreements have been reached and accord with the instructions to CLCAC in a) and b) above.
24.The resolution referred to in paragraph 20 of this affidavit was moved by Kevin Cairns, seconded by Ada Walden and carried unanimously.
25.The native title party consents to the terms of the ancillary agreement and to the making of the determination sought in these proceedings.
Waanyi Native Title Applicant – missing signatures on the ancillary agreement
26.There are 28 people who make up the applicant for the Waanyi native title claim.
27.The Waanyi applicant is unable to execute the ancillary agreement.
28.Four of the named applicant, being Mr Henry Daly, Mr Roy Second, Mr Peter Bell and Mr Reggie Carlton are deceased. A copy of the death certificate for Mr Reggie Carlton accompanies this application.
29.Mr Peter O’Keefe has refused to sign the agreement for personal reasons wholly unrelated to the terms of the agreement. These personal reasons do not differ from those accepted by the National Native Title Tribunal as evidence in the matters of Bradley Foster and Ors on behalf of the Waanyi Peoples (QC99/23) & Terrence John Burt, Judy-Anne Galway and Robert William Kirkby; (QF07/1), (QF07/2) and (QF07/3).
31.I am not aware of any reason why any claimant would object to the terms of the ancillary agreement or to the making of the determination sought in these proceedings.
The Benefit of the Ancillary Agreement to the Waanyi People
32.    The ancillary agreement provides benefits which are substantially better than those afforded by the Native Title Protection Conditions.
33.    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.
34.    The ancillary agreement reflects the Waanyi People’s concerns. For example, if requested by the Waanyi People, Work Area Clearances (cultural heritage surveys) are agreed to for all exploration activities involving a physical presence on the ground.
35.    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.
36.    The ancillary agreement provides 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.
37.    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.
38.    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.
39.    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.
40.    The ancillary agreement provides for full or part-time employment for two people from the claimant group as field assistants during the term of the agreement. There is no such opportunity under the NTPCs.
41.    I am of the opinion that the Waanyi native title group have consented to enter into the ancillary agreement with the grantee party for EPM 15391 and that they have provided these instructions to the CLCAC.
The legal representative for the second native title party in a letter dated 15 June 2007, which was attached by Ms Farley to her Affidavit, stated as follows:
“We act on behalf of the Kalkadoon People No.4 (QUD579/05) in relation to their native title claim and future act matters.
I confirm that our client consents to the future act consent determination application for EPM 15391 in the terms proposed by the Waanyi People.”

Apart from this correspondence, the government party highlighted in its submissions on QF07/05 that the second native title party had executed an agreement with the second grantee party. A copy of that agreement was annexed to the submissions of the government party and it discloses that both the second grantee party and all of the persons who comprise the applicant of the second native title party have executed the agreement, with the exception of one gentleman who has passed away. The Tribunal and the government party have previously, and in unrelated matters, been informed of that event. The remaining persons who collectively comprise the applicant of the second native title party are capable of executing the ancillary agreement and for that document to be binding on the parties – Doolan v Native Title Registrar (2007) 158 FCR 56.

[10] Both the government party and both grantee parties specifically consented in writing to the Tribunal making the determination sought. In its submissions on QF07/5 the government party contended:

“4.1 The State submits that the determination sought by the applicant is appropriate in that the respective agreements between the Grantee Party and each of the Native Title Party address the matters of which the Tribunal must be satisfied under section 39 of the NTA.”

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; (Deceased)
(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 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. On this occasion Ms Farley provided the Tribunal with a further Death Certificate, that of Mr Reginald Carlton whose recorded date of death was 17 March 2007. Consequently of the 28 persons who collectively comprise the applicant of the Waanyi Peoples native title determination application, four have passed away. Having been provided with the Death Certificates for each of the above named persons, the Tribunal now takes formal notice of their demise and no further material will be required to be produced in any future inquiry of their death. It should also be noted that section 66B was amended by the Native Title Amendment (Technical Amendments) Act 2007 which, so far as is relevant to this matter, commenced on 1 September 2007. Section 66B(1) now specifically enables a member or members of a native title claim group to apply to the Court for an order replacing the current applicant in certain specified circumstances. One of those circumstances is that one or more (by operation of section 23 of the Acts Interpretation Act 1901 (Cth)) of the persons who collectively comprise the applicant have either died or become incapacitated – section 66B(1)(a)(ii). There is now both the mechanism and the opportunity for the removal of persons who have either died or who have become incapacitated as an applicant. This is a pressing issue for this claim group, and it is hoped that the opportunity will be taken in the near future to make an application under section 66B to rationalise the situation and improve the capacity of the claim group to undertake its core activities through the mechanism of the applicant.
The Tribunal has already made three consent determinations involving the first native title party: Foster v Copper Strike Ltd (2006) 200 FLR 182, Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 164 (21 December 2006) and Foster & Ors/Johnny & Ors/Burt, Galway & Kirkby/Queensland [2007] NNTTA 50 (5 June 2007).
The evidence presented to the Tribunal in this matter is similar to that presented in the above mentioned future act determination application inquiries. 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 has unilaterally determined not to execute agreements entered into by the wider claim group. His 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.
A further circumstance has been added to those already dealt with in the previous determinations. The Mount Isa office of the CLCAC is now not fully operational due to shortage of staff, and the representative body has claimed that it does not have the resources or capacity to locate the remaining persons collectively comprising the applicant, most of whom reside in remote parts of Queensland. I will deal with the relevance of this submission below.
I outlined in the three previous determinations involving the Waanyi People set out in [13] the relevant legal principles underpinning the making of consent determinations. I adopt, for the purposes of this inquiry, those principles, and further the legal rationale expounded by Deputy President Sumner in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361.

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 People and Kalkadoon People #4. The clear desire of the Waanyi People was manifested at the meeting held in Doomadgee on 18 April 2007 where the claim group determined that it was in their interest to execute agreements with explorers that provided substantially better benefits than those contained in the standard native title protection conditions. This resolution is in similar terms to a previous one passed at a meeting held in Doomadgee on 22 and 23 August 2006 which I took into account in Foster & Ors/Johnny & Ors/Burt, Galway and Kirkby/Queensland [2007] NNTTA 50. 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 first native title parties is represented by CLCAC, the representative body for the area covered by the proposed tenements and the second native title party is represented by Michael Owens and Associates. Both Mr Owens and Ms Slocombe from that private law firm regularly appear before the Tribunal and have broad experience in future act matters. 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 their 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.
As noted earlier, the Tribunal has also received submissions from the first native title party to the effect that its legal representative CLCAC, no longer has the resources or operational capacity to obtain the signatures from all of the persons collectively comprising the applicant who are either willing or able to sign. The Tribunal, when determining to make a consent determination, must focus on whether there is a true accord between the parties, albeit one that the parties have been unable to give formal legal effect to. In these circumstances a plea of operational incapacity or resource limitations sheds no light on whether there is a true accord and, in fact if regarded as an independent factor, could easily lead to a situation where deals are negotiated between legal representatives and the wishes of either the persons comprising the applicant or the wider claim group could be ignored or avoided. As such operational and staff limitations are irrelevant to the issue of whether the preconditions for the making of a consent determination are established. However, the particular circumstances faced by CLCAC are relevant to the way in which the Tribunal will conduct consent determination inquires involving the Waanyi Peoples native title party. Where, there is evidence that the wider claim group endorses, in a general sense, the entering of agreements that are more beneficial than the terms of the native title protection conditions, and where, as here, it is clear that no person has raised a substantive and relevant issue with the proposed accord, I am of the view that the representative body should use its best endeavours to ensure that the ancillary agreement is executed by the applicant. In these circumstances “best endeavours” is directly proportionate to the resources available and the capacity of the representative body. A common sense approach should be taken, and proper regard be had to the history of the claim group, its record of negotiating agreements with exploration and mining operators, the climatic and geographic factors at play (e.g. the onset of the “wet season” and the remote locations of some persons) and the capacity of the representative body. In divining whether there is a true accord a mechanistic approach to the number of signatures on an ancillary agreement is inappropriate. The Tribunal should approach its task by going beyond the pure legal form and ascertaining if the proposed agreement meets the aspirations of the claim group and whether there is discord within the claim group on the terms of the agreement or on whether exploration or mining should be agreed to at all. The factors outlined below are critical in this regard. If it is clear that the representative body is using its best endeavours, and is not simply seeking to avoid the difficult task of collecting signatures, then it is appropriate for the Tribunal to take that matter into account in how it conducts the inquiry.
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 – see also the line of cases involving the Central West Goldfields native title party : Champion/New Hampton Goldfields Ltd/Western Australia [2004] NNTTA 82 (14 September 2004);
(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 their legal representatives 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 to execute the ancillary agreements is unrelated to the terms of the agreements, nor does his refusal relate to an objection to the doing of the future acts. The evidence suggests that his refusal is founded on unrelated and personal matters. The Tribunal has now had four separate occasions on which material has been provided relating to the refusal of Mr O’Keefe to cooperate with the other persons comprising the applicant to determine whether to reach accord with grantee parties. The Tribunal now formally takes notice of the position of Mr O’Keefe and will proceed on the assumption, in the absence of any contrary material produced, that his refusal to execute agreements in no way represents the forming of a considered view on the merits of the proposed agreement;
(e)     four of the persons comprising the Applicant of the first native title party have passed away;
(f)      the native title parties are legally represented, and throughout the negotiations received independent advice from legal practitioners with extensive experience in future act negotiations – see also Moore v Mungeranie (2005) 193 FLR 62 at 77/[58];
(g)     the legal representative of the first native title party 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.
It is also appropriate for the Tribunal, when determining whether to make a consent determination, to have regard to the clear trend of recent Federal Court authority on the meaning of the term “applicant” in section 61(2) of the Act. In this regard there have been three decisions that must be considered by the Tribunal – Butchulla People v Queensland (2006) 154 FCR 233 (Kiefel J), Doolan v Native Title Registrar (2007) 158 FCR 56 (Spender J) and Chapman v Queensland (2007) 159 FCR 507 (Kiefel J). The thrust of these cases was summed up by Spender J in Doolan v Native Title Registrar as follows (67/[56] – [59]):
“56 For my part I do not see the authorisation of a number of persons as an “applicant” as being an appointment of each of them ‘jointly and severally’ to deal with the matters arising with the matters in relation to an application. I accept that s 61(2) contemplates an authorisation of persons to act collectively, rather than each of them personally.
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.
59. In the view I take of the matter, there is no requirement for there to be an express qualification to that effect, as the submission of the Attorney-General suggest. Rather, the position is that an authorisation of the group of people to act has to be understood as meaning the authorisation of so many of them as continue to be willing and able to discharge their representative function.”
The potential implications of this approach for the making of consent determinations are considerable. Spender J is of the view that persons who are appointed to act as the applicant have an obligation to advance the interests of the claim group. If one of the persons comprising the applicant dies, or refuses to carry out their obligation to further the interests of the claim group, then the remaining persons comprising the applicant continue to have the legal authority to act as applicant. In short if, as in the Waanyi People’s situation, some of the persons comprising the applicant have died and others refuse to perform their duty and execute agreements, the remaining persons have the legal authority to execute documents. What does this mean in this context? Five scenarios are immediately discernable:
(i)The first is, when all the living persons comprising the applicant execute an agreement but some other persons comprising the applicant have passed away. In such a case, as Spender J makes it clear, there is no legal defect with the execution of a document by only the living persons comprising the applicant.
(ii)The second is where some of the persons comprising the applicant are incapacitated by illness or other cause and cannot execute the document. Again, if the remaining living and capable persons comprising the applicant execute the document, it would be enforceable.
(iii)The third scenario is where a living and competent person who is one of the persons comprising the applicant refuses to execute a document for reasons unrelated to the content of that document and unrelated to whether the future act should proceed. It will be noted that Spender J refers to persons “remaining willing and able to discharge their representative function.” A person who has been appointed (with others) as an applicant, is not discharging their representative function by avoiding their duty to scrutinise agreements and determine whether to execute them or not. A blanket refusal to cooperate with the other persons comprising the applicant is a failure to perform the core representative function of an applicant. The failure of that person to perform their duty does not carry with it the consequence that the applicant is thereby rendered incapable of action. The clear thrust of the analysis of Spender J is to the contrary: namely, that the remaining living, willing and competent persons comprising the applicant can perform their duty and can validly execute agreements.
(iv)The fourth scenario is where there is a dispute between the members of the applicant over the means of resolving whether to agree to the doing of the proposed future act. The sort of disputes that could arise are many and varied. It may relate to the terms of the agreement, or it may relate to the desirability of the doing of the future act. The dispute may raise issues of great substance, or there may, in effect, be an impasse resulting from disagreements over relatively minor matters. Whatever the case, in such matters the applicant cannot validly enter into an agreement, and absence very rare cases, there is no capacity for the Tribunal to exercise its consent determination function.
(v)The fifth scenario is where some members of the applicant cannot be located, but they have either executed agreements of a similar kind in the past or have not raised any objection to the execution of the proposed agreement in question. In such a case the applicant cannot execute a binding agreement, but the parties can seek a consent determination from the Tribunal. In such cases the Tribunal will need to be satisfied that reasonable efforts have been made to locate the missing persons, and that there are no disagreements within the claim group about the merits of either the proposed agreement or the doing of the future act.
It is certainly open in the first three scenarios for the negotiation parties to reach an accord and not to submit to the Tribunal’s consent determination jurisdiction. However, although it is open to the parties to take this course of action for any number of reasons this may not occur. If the parties for good reason choose not to execute an agreement they can still approach the Tribunal and submit to its jurisdiction.
Finally, a note of caution is required. As Spender J pointed out, the persons appointed to act as applicant perform a representative role. In previous determinations I have likened their role akin to a position of trust which carries with it fiduciary obligations. As Kiefel J said in Button v Chapman [2003] FCA 861 at [9]: “the position of an applicant…does not involve a personal right.” One matter which is not dealt with in the legislation, but which the Court has recognised, is whether persons are authorised to act in a particular capacity. In Chapman v Queensland (2007) 159 FCR 507 Kiefel J noted (510/[9] –[10]):
“The continuance of authorisation must depend upon the terms of the authorisation, a matter upon which NTA did not speak…the question as to the terms of authorisation in any given case is one of fact and the presumption may yield to other indicia of the intention of those authorising. This might arise where traditional customs, inconsistent with modern assumptions, are applied.”
As I noted in Foster v Copper Strike Ltd (2006) 200 FLR 182 (at 192/[38]), the Tribunal in exercising its consent determination jurisdiction has to ascertain if there is, in fact, an “in principle” agreement between the negotiation parties. The Federal Court decisions discussed above facilitate this exercise by making it clear that in some circumstances, despite the absence of all persons comprising the applicant executing an agreement (e.g. the death or incapacity of some of the persons comprising the applicant), there can, nonetheless be a true accord between the parties. However, care must always be exercised to avoid taking a purely mechanistic approach to the number of persons comprising the applicant either executing, or being prepared to execute, an agreement. Just as the Federal Court decisions are aimed at giving a pragmatic interpretation to the legislation and ensuring that fate or bad behaviour impacting on the applicant does not prevent the clear wishes of the wider claim group being given effect, the foundation of all native title jurisprudence is grounded in ascertaining the traditional laws and customs of a native title party. If, as was recognised by the Full Federal Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [79], persons are appointed as an applicant to represent particular family, clan or estate interests, then particular attention must be paid to the nature of the authorisation and the impact this may have on the capacity of a native title party to agree to a particular matter. In short, if a future act will have a particular impact on the family, clan or estate interests represented by a person or persons appointed jointly with others as an applicant, then particular regard must be had to the views and wishes of that family, clan or estate applicant. So, when Spender J refers to those persons comprising an applicant who are living, willing and competent, I do not read His Honour as suggesting that one should disregard the nature of the appointment of the persons comprising the applicant and the traditional laws and customs which underpin that appointment, the content of the duty those persons owe and the manner in which they will exercise their task as an applicant.

Determination

By consent, the determination of the Tribunal is that the acts, namely the grant of Exploration Permit 15283 to Zinifex Australia Limited and Exploration Permit 15391 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 Peoples and the Kalkadoon People #4.

John Sosso
Deputy President