Bradley Foster & Ors (Waanyi Peoples)/Summit Resources (Aust) Pty Ltd/Queensland

[2006] NNTTA 164

NATIONAL NATIVE TITLE TRIBUNAL

Bradley Foster & Ors (Waanyi Peoples)/Summit Resources (Aust) Pty Ltd/Queensland; [2006] NNTTA 164 (21 December 2006)      

Application No:        QF06/8 & QF06/9

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

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

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Summit Resources (Aust) Pty Ltd   (grantee party)

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State of Queensland   (government party)

FUTURE ACT DETERMINATION

Tribunal:  John Sosso

Place:        Brisbane
Date:         21 December 2006         

Hearing date:            19 December 2006
Government party:   Ms Leanne O’Neill, Department of Natural Resources and Water
Native title party:     Ms Clare Farley, Carpentaria Land Council Aboriginal Corporation

Grantee party:          Mr Eddie Paul, Hetherington Exploration & Mining Title Services Pty Ltd

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:Foster v Copper Strike Ltd (2006) 200 FLR 182

Foster/Queensland/Summit Resources (Aust) Pty Ltd [2006] NNTTA 151 and 152 (17 November 2006)
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

REASONS FOR FUTURE ACT DETERMINATION

1. On 8 February 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 15186 and 15187 (“the proposed tenements”) pursuant to the Mineral Resources Act 1989 (Qld) to Summit Resources (Aust) Pty Ltd (“the grantee party”).

2. The notice stated that the Exploration Permits would authorise the applicant to explore for minerals for a term not exceeding 5 years with a right to renew for a further 5 year term. The notice 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 1.1(a), 22 August 2003. The government party further asserted that the grant of each of the proposed tenements would attract the expedited procedure.

3. Details of the proposed tenements are set out below:

   (a)    both tenements are located in north west Queensland and north of Mount Isa;

   (b)    EPM 15186, is located in the vicinity of Gregory Downs in the Mount Isa and    Burke Shires and covers an area of approximately 320 km²;

   (c)    EPM 15187, is located in the vicinity of Doomadgee in the Burke Shire and   covers an area of approximately 45km²; and

   (d)    both tenements are located within the boundaries of the Waanyi Peoples registered native title determination application (Federal Court QUD6022/99) (“the native title party”). 

4. On 5 June 2006 the native title party lodged with the Tribunal expedited procedure objection applications pursuant to section 32(3). The Tribunal convened a Preliminary Conference on 30 June 2006 and subsequently a number of Status Conferences to ascertain if agreement could be reached in each matter or whether each matter should be listed for hearing. On 16 November 2006 the Tribunal was advised by the government party, pursuant to section 32(7), of its withdrawal of the assertion that each proposed future act attracted the expedited procedure. On 17 November 2006 the Tribunal formally dismissed each of the expedited procedure objection applications – Foster/Queensland/Summit Resources (Aust) Pty Ltd, [2006] NNTTA 151 and 152 (17 November 2006).

5. 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 as mandated by section 31 applied. In short, each of the negotiation parties (the government party, the native title party and the grantee party – section 30A) was required to negotiate in good faith with a view to obtaining the agreement of the native title party to either the doing of the act unconditionally or with conditions – section 31(1).

6. On 22 November 2006, the native title party made application pursuant to section 35 of the Act for future act determinations under section 38. Each application was made in conformity with section 35(1)(a), more than six months after the notification day.

7. In its section 35 applications, the native title party stated that agreement had been reached “in principle” for each of the proposed tenements but outlined the reason why the agreements were incapable of finalisation. In relation to each agreement Ms Farley deposed:

   “this agreement has not been executed due to four of the 28 people who make up the applicant not having signed the agreement.  Three of these people are deceased.  One person has refused to sign for personal reasons that are unrelated to the content of the agreement.  The Waanyi native title claim group has at meetings agreed that this agreement should be executed by the people who make up the applicant.” 

8. 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. 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 all future act matters. 

9. For the purposes of this determination the Tribunal relies upon the final Affidavits filed by Ms Farley and dated 8 December 2006. These affidavits replaced two earlier versions which were filed with the Tribunal. Ms Farley’s affidavits set out in a comprehensive and very useful manner the relevant facts and circumstances. Relevant extracts from the affidavits are set out below:

   “The Native Title Party’s Instructions to CLCAC

   16. The Waanyi people met in Doomadgee on 22 and 23 August 2006 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.

   17. The Waanyi people emphasised their desire for all future act negotiations to be progressed smoothly and positively.

   18. The proposed ancillary agreement for EPM 15186 is almost in the same terms as that used for the conditions attached to the act consented to for EPM’s 15071 and 15073 following the decision in the consent determination for Bradley Foster (Waanyi Peoples)/Copper Strike Ltd/Queensland [2006] NNTTA 61 (19 May 2006).

   19. The only difference between the ancillary agreement proposed for Summit Resources and that consented to for EPMs 15071 and 15073 is the rate of pay for monitors and survey participants which is lower under the Summit agreement but still higher than the pay provided under the Native Title Protection Conditions.

   Waanyi Native Title Applicant

   20. There are 28 people who make up the applicant for the Waanyi native title claim. Of these, three people are deceased.

   21. The agreement could not be executed by the deceased persons who are Mr Peter Bell, Mr Henry Daly and Mr Roy Seccin.

   22. Attached to this affidavit and marked Annexure ‘A’ is a certified copy of the death certificates for Mr Peter Bell.

   23. Attached to this affidavit and marked Annexure ‘B’ is a certified copy of the death certificate for Mr Henry Daly.

   24. Attached to this affidavit and marked Annexure ‘C’ is a certified copy of the death certificate for Mr Roy Seccin.

   25. The surname ‘Seccin’ belonging to Mr Roy Seccin is spelt differently on the Native Title Register as ‘Second’.

   26. Attached to this affidavit and marked Annexure ‘D’ is an affidavit of Ms Daisy Smart stating that Mr Roy Seccin and Mr Roy Second are one and the same person.

   27. Twenty-four (24) people have executed the ancillary agreement.

   28. Twenty-four (24) people have signed the deed pursuant to section 31 of the Native Title Act 1993.

   Missing signatures for the Ancillary Agreement

   29. Mr Peter O’Keefe has refused to sign the agreement. Mr O’Keefe was invited to but did not attend the meeting held in Doomadgee on 22 and 23 August 2006. Mr Peter Cameron, a member of the Waanyi claim group, asked Mr O’Keefe to sign the agreement on a number of occasions when he visited him at his residence in Doomadgee.  Mr Cameron then advised me 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 Summit agreement.

   30. 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.

   31. Some other Waanyi People who comprise the Applicant are aware of Mr O’Keefe’s refusal to act according to their instructions.

   32. Staff of CLCAC have attempted to talk to Peter O’Keefe and explain the importance of signing these agreements, but have been unsuccessful.

   33. I do not believe that Peter O’Keefe has raised any concerns regarding the negotiations with Summit Resources. To the best of my knowledge Peter O’Keefe has made no comments in relation to the content of the agreement.

   Missing signature for the section 31 Deed

   34. Mr Peter O’Keefe has refused to sign the section 31 Deed for the same reasons as those for which he has refused to sign the ancillary agreement.

   The Benefit of the Summit Agreement to the Waanyi People

   35. A copy of the Summit resources agreement is attached.

   36. The Summit agreement provides benefits, which are substantially superior to the Native Title Protection Conditions.

   37. 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.

   38. The Summit 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 high impact activities which are defined in clause 2 of schedule 2 to the agreement and excludes aerial surveys.

   39. The Summit agreement provides for a pay rate of $350 per monitor and survey participant per day. The NTPCs provide for a pay rate of $300 per monitor and survey participant per day.

   40. One or more monitors are permitted during a range of activities.  If requested by either party under the Summit agreement, an Anthropologist is permitted to attend Surveys.  The NTPCs require consent from the Explorer.

   41. A cultural induction workshop is permitted under the Summit agreement. Cultural attendants are paid $100 per day. Under the NTPCs a cultural induction workshop is not guaranteed.

   42. 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.

   43. The Summit agreement provides for full or part-time employment for one person from the claimant group as a field assistant during the term of the agreement. There is no such opportunity under the NTPCs.

10. On 19 December 2006 I convened a Directions Hearing at which 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 that the future acts be done subject to the terms of the Ancillary Agreements reached between the native title party and the grantee party. The oral submissions of the parties were consistent with previous written contentions which were filed with the Tribunal.

11. In previous determinations I have dealt with the difficulties encountered by the Waanyi Peoples executing agreements and with the operation of the Queensland native title protection conditions. For the purposes of this determination I refer to my findings in Foster v Copper Strike Ltd (2006) 200 FLR 182. I have specifically considered the terms of the native title protection conditions made pursuant to the Mineral Resources Act 1989 (Qld) before making a determination under section 38.

12. 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.

13. As stated in the affidavit of Ms Farley the Tribunal has 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. By the time the Waanyi Peoples met in Doomadgee on 22 and 23 August 2006 and gave general approval to proceed with ancillary agreements that were more beneficial than the native title protection conditions, each of the named persons had passed away.

14. As will be noted, amongst the named persons who collectively comprise the Applicant is Mr Roy “Second”.  The Death Certificate supplied to the Tribunal is of a Mr Roy “Seccin”.

15. Clarification of this issue was assisted by the filing of the affidavits of Ms Daisy Smart which were annexed to Ms Farley’s affidavits.  Ms Smart deposes that her father’s brother, King Darby of Lawn Hill, was Roy Seccin’s father.  According to Ms Smart, many people knew Roy “Seccin” as “Second” and she deposed: “Both Roy Seccin and Roy Second were one and the same person. He died in Borroloola in March this year.”  I accept the veracity of the evidence provided by Ms Smart, and have no reason not to proceed on the basis that Roy “Seccin” and Roy “Second” were one and the same person.

16. 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. There is currently an impasse within the native title party brought about by two circumstances. Firstly, and primarily, the fact that 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.

17. 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.

18. 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.

19. 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 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. In this matter I have taken into account that the accord reached does provide superior benefits and is of a type that has been endorsed “in principle” by the wider claim group.

20. It is also of some importance that the native title party is legally represented. In this matter the native title party is 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.”

21. In this matter it is clear that the native title party 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 party for the Tribunal to make section 38 determinations has been the result of a considered process of negotiation.

22. 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. In that matter the Tribunal determined that it was appropriate to make a consent determination in accordance with the submissions of the negotiation parties;

    (b)     the terms of the ancillary agreements provide benefits to the native title party that exceed comparable provisions in the native title protection conditions;

    (c)     the Waanyi Peoples specifically determined at a meeting in Doomadgee on 22 and 23 August 2006 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 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 the refusal is founded on unrelated and personal matters;

    (e)     three of the persons comprising the Applicant 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 party is legally represented, and throughout the negotiations received independent advice;

    (g)     the legal representative of the native title party is the representative body for the area of the proposed tenements;

    (h)     both the government and grantee parties have filed  material with the Tribunal, and presented oral submissions, which unequivocally demonstrate their support for consent determinations.

1. 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).

2. The government party submitted that it would be 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. A similar submission was made in Foster v Copper Strike Ltd. In that matter I determined that it was appropriate not to require the formal attachment of the terms of the agreements to the body of the determination, but simply to refer to their terms. A similar approach is also appropriate in this matter.

Determination

1. By consent, the determination of the Tribunal is that the acts, namely the grant of Exploration Permits 15186 and 15187 to Summit Resources (Aust) Pty  Ltd, may be done subject to compliance with the terms of the “Native Title and Heritage Protection Agreement” as filed with the National Native Title Tribunal.

John Sosso

Member