Carpentaria Gold Pty Ltd/Birri People/Queensland - [2010] NNTTA 148

NATIONAL NATIVE TITLE TRIBUNAL

Carpentaria Gold Pty Ltd/Birri People/Queensland, [2010] NNTTA 148 (14 September 2010)

Applications No: QF10/5, QF10/6, QF10/7 & QF10/8

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into Future Act Determination Applications

Carpentaria Gold Pty Ltd (grantee party)

- and -

Grace Smallwood, Allan Fisher, Heather Tilberoo, Algon Walsh Jnr, Colin McLennan, David Miller, Frank Fisher & Anor on behalf of the Birri People

(native title party)

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State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 14 September 2010

Hearing dates: 25 May, 22 June and 13 July 2010

Representatives:
Native Title Party: Mr Michael Owens, Lawyer & Consultant
Grantee Party: Mr Ken Green, Green Legal

Government Party: Ms Jacinta Dwyer, State of Queensland

Catchwords: Native title – future act – application for determination for the grant of, and for variation of the conditions of exploration permits - determination that the acts may be done.

Legislation: Mineral Resources Act 1989 (Qld) s 141

Native Title Act1993 (Cth), ss 27B, 29, 30A, 31, 32, 35, 38, 39, 75, 77

Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Andrews v Northern Territory (2002) 170 FLR 138
Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF 05/3 [2006] NNTTA 3 (30 January 2006) Member Sosso
Evans v Western Australia (1997) 77 FCR 193
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF 10/9 [2010] NNTTA 119 (4 August 2010) Deputy President Sosso
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Thomas (1996) 133 FLR 124

REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION

Introduction

The State of Queensland (“government party”) issued notices under s.29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant (EPM 16204 and 16847) or vary the conditions (EPM 15098 and 15099) of various Exploration Permits for Minerals (“EPM”) to Carpentaria Gold Pty Ltd (“grantee party”) pursuant to the Mineral Resources Act 1989 (Qld). The EPMs (“the proposed tenements”) were advertised with the following notification dates: EPM 16204 – 10 April 2008; EPM 16847 – 4 March 2009; EPM 15098 and 15099 – 27 May 2009.
The notices for EPM 16204 and 16847 stated that the Exploration Permits would authorise the grantee party to explore for minerals subject to the Mineral Resources Act 1989 (Qld) for a period not exceeding 5 years with the possibility of renewal for a term not exceeding 5 years.
The notices for EPM 15098 and 15099 stated that it was proposed to vary the conditions of the granted tenements by adding costeaning to the approved work program of the EPMs pursuant to s.141C of the Mineral Resources Act 1989. These tenements had previously been granted under the Mineral Resources Act 1989 by the government party asserting that these acts attracted the expedited procedure. EPM 15098 was originally granted on 5 May 2005 and EPM 15099 on 15 May 2006.
The proposed tenements are located at various distances around the town of Ravenswood within the Burdekin Shire Council and Charters Towers Regional Council local government areas. EPM 16204 is comprised of two parts, EPM 16847 of five parts, EPM 15098 of seven parts and EPM 15099 of three parts. The area of the proposed tenements and the overlap with the boundaries of the Birri People’s registered native title determination application (QUD6244/98) is as follows:
EPM 16204     Approx area 322.67 sq km          Overlap 322.67 sq km
EPM 16847     Approx area 280.28 sq km          Overlap 0.0002 sq km
EPM 15098     Approx area 483.58 sq km         Overlap 483.58 sq km
EPM 15099     Approx area 461.18 sq km          Overlap 461.18 sq km
The Birri People native title determination application was entered on the Register of Native Title Claims on 2 April 1998.
Mapping provided by the government party indicates that the area comprising EPMs 16204, 16847 and 15098 are not currently subject to any other granted tenements. However, each of these areas has been subject to extensive prior exploration with numerous Authorities to Prospect, Mining Leases and Exploration Permits for Minerals having been granted over the years. In addition, the mapping provided indicates that EPM 15099 is subject to a number of current and previously granted prospecting and exploration tenements as well as mining leases.
The grantee party at Appendices 4 to 7 to the future act determination application enumerated all of the non-native title rights and interests in relation to the land and waters subject to the proposed tenements. Outlined in these Appendices was a comprehensive list of each of the extant exploration and mining tenements granted over the subject areas.
The uncontested assertion of the government party was that there is not known to be any Aboriginal communities on, or in the vicinity of the tenements.
A search by the government party of the Aboriginal Heritage Database and the Aboriginal Cultural Heritage Register did not identify any Aboriginal cultural heritage within or partly within EPM 15098, 16204 or 16847 and likewise there are no registered sites within any of these areas. However the government party’s searches found a large number of Aboriginal cultural heritage sites within EPM 15099.

Queensland Legislative Framework

The grant of exploration permits in Queensland is governed by Part 5 of the Mineral Resources Act 1989. The general conditions imposed on the grant of such tenements are set out in s.141 of that Act and s.14 of the Mineral Resources Regulation 2003. The environmental regulation of mining in Queensland is governed by the Environmental Protection Act 1994 (Qld). Under that statute a grantee party is required to hold an environmental authority in relation to the proposed activities to be undertaken on the subject tenements. A grantee party is required to comply with each of the relevant standard environmental conditions prescribed by the Code of Environmental Compliance for Exploration and Mineral Development Projects. Finally, a duty of care is imposed upon the grantee party by the operation of the Aboriginal Cultural Heritage Act 2003 (Qld).A more detailed explanation of the relevant provisions of those Acts is set out in Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF10/9 [2010] NNTTA 119 at [11] – [14].
These provisions were also considered by the Tribunal in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF05/3 [2006] NNTTA 3 and the following conclusion about the operation of the regulatory regimes was reached:
“[37] Summing up, the above brief and non-exhaustive overview of the current state of mining, environmental and cultural heritage law impacting on relatively low impact mining activities, highlights that Queensland possess(es) a comprehensive and well integrated regime that aims to an appropriate level of environmental and cultural protection..
[38] The material before the Tribunal demonstrates that the legislative regime cumulatively provides a protective framework which ameliorates the likely or potential effect of the future act on the native title rights and interests of the native title party.”

Tribunal Proceedings

On 6 May 2010 Mr. Ken Green of Green Legal, on behalf of the grantee party, lodged with the Perth Registry of the Tribunal a future act determination application pursuant to s.35 in relation to each of the tenements. The applications were made more than six months after the various notification days referred to previously – s.35(1)(a). On 17 May 2010 I was appointed as the Member to conduct the future act determination inquiry and on that day I accepted the future act determination applications pursuant to s.77.
The parties were notified on 20 May 2010 that the Tribunal intended to convene a preliminary conference. Following that notification on 22 May 2010, Mr. Owens, on behalf of the native title party emailed Mr. Green stating, inter alia:
“... the last we heard of this matter was some 3 to 4 years ago when an Ancillary Agreement was executed as between my client and yours.
To the best of my knowledge and belief there has not been any contact of any nature whatsoever as between our respective clients in that intervening period. Furthermore there has been no contact as between my firm or my clients with either your firm or any other solicitors for that matter during the same period.....
I understand that there may have been a delay in the State producing s31 deeds for execution.
Since execution of the Ancillary agreement, my clients have always been and remain ready willing and able to execute a s31 Agreement – but one has never been produced for execution.”
On 24 May 2010, Mr. Green responded to Mr. Owens attaching to the email a proposed Minute of Consent Determination. Mr. Green’s email was also provided to the Tribunal and the government party. Amongst the matters dealt with by Mr. Green was the following point:
“... the Grantee Party does not deny that the native title party has always been and remains ready willing and able to execute a s31 Agreement. However, at no time prior to making the application, did the Grantee Party possess a s31 Agreement in signing form to present to the Native Title Party. In those circumstances, one might ask: What was the Grantee Party expected to do?”
At the Preliminary Conference convened on 25 May 2010, Mr. Green informed the Tribunal that the government party had provided s.31 Deeds to the grantee party some months previously but that the grantee party considered that the Deeds were incorrect. He further informed the Tribunal that the government party had re-issued the Deeds on 21 May 2010, but that the grantee party still had concerns with two of the Deeds. There was a general discussion about the status of the executed ancillary agreement, and at the request of the government party the matter was adjourned for four weeks until 22 June 2010.
At the Directions Hearing convened on 22 June 2010, Mr. Owens informed the Tribunal that he had reviewed documentation and that the s.31 Deeds had been executed by four of the six persons comprising the Applicant, and that he did not foresee any difficulties in obtaining the remaining two signatures. Mr. Green advised that his client was not seeking to conclude the matters by the execution of s.31 Deeds, but rather by the Tribunal making a consent determination.
Ms. Dwyer, on behalf of the government party, stated that in the past when the State of Queensland consented to a future act determination, it was because of incapacity of one or more persons collectively comprising the Applicant. In this matter there was no suggestion that the parties were not capable of executing the s.31 Deeds. Mr. Green submitted that as no party had contended that any of the negotiation parties had not negotiated in good faith, the jurisdiction had been enlivened and that the Tribunal could make a determination pursuant to s.38. Mr. Owens submitted that his client had done nothing wrong, and was willing to execute the s.31 State Deeds when they were provided. He indicated his unwillingness to agree to a consent determination in circumstances where there was no obvious impediment to the parties reaching agreement. Further, he contended that the Minute of Consent Determination sought an unconditional determination pursuant to s.38(1)(b), whereas the appropriate determination would be pursuant to s.38(1)(c), namely that the acts be conditional on the agreements reached.
Mr. Green submitted that if within 14 days he were to receive a copy of the s.31 Deeds executed by the other negotiating parties he would be in a position to respond expeditiously. However, in light of the government party’s policy of insisting that the Minister execute the agreement last, he would need to obtain instructions from his client. He requested that the Tribunal set directions in the event that the matter didn’t progress.
No directions were set, but the matter adjourned was for three weeks to allow Mr. Green to seek instructions from his client on whether his client would be prepared to execute the s.31 Deeds in counterpart prior to the Minister executing the Deeds, and to allow sufficient time for the execution to occur if the grantee party was so willing.
On 12 July 2010 Mr. Green emailed the Tribunal as follows:
“I confirm I am unaware of the Native Title Party having signed an agreement of the kind mentioned in paragraph 31(1)(b) of the Native Title Act (Cth) (NTA) in relation to the above matter.
Further to the Directions Conference before Deputy President Sosso on Tuesday, 22 June 2010, I confirm I have met with the CEO of the Resolute Group and sought instructions as contemplated during the last Directions Conference.
I confirm that the Grantee Party will not sign any agreement of the kind mentioned in paragraph 31(1)(b) of the NTA in relation to the above matter.
Accordingly, the Grantee Party seeks appropriate directions for a determination of the above matters.”
Later on the same day Mr. Owens emailed the Tribunal and the other negotiation parties in the following terms:
“I am awaiting only the signature of Mr. Col McLennan on the 3 x s31 Agreements in the above matter. All of the other persons comprising the Birri Applicant have signed those agreements.
Col has been and is still currently working out of Townsville.
I have spoken to him a number of times about the matter and he was to return to Townsville today. However he has been delayed.
I have just spoken to him again a few minutes ago and he will be in Townsville at or about 12 noon tomorrow. He intends to come straight to my office and sign the s 31 Agreements.
Save any catastrophe along the way I have complete confidence in Col doing so.
Immediately upon him executing the 3 x s31 Agreements my staff will arrange for scanned copies to be distributed to all with the originals being sent by Priority Post to the State tomorrow.”
Mr. Owens advised that he would be unable to attend the Directions Hearing convened on 13 July 2010 but in his email of 13 July 2010 re-iterated that if the Tribunal were to make directions such directions should be pursuant to s.38(1)(c). He also said: “Preferably my client treats its obligations under the NTA very seriously and prefers that it not have orders made against it to suit the convenience of Mr. Green and his clients in circumstances where our client has done nothing wrong and Mr. Green’s client has made no attempt to sign the s31 Agreements.”
Mr. Green informed the Tribunal at the 13 July 2010 Directions Hearing that there had been no further developments since the last Directions Hearing and that his client would not sign the s.31 State Deeds. He submitted that Directions be made requiring the government party to comply first and the grantee party to comply 14 days later. Ms. Dwyer, on behalf of the government party, submitted that if Directions were made the grantee party should comply first and that there be more than 14 days interval between the compliance dates as there were four tenements involved and the documentation the government party would have to compile would be considerable. Directions were made, with the grantee party complying first, and with the standard 14 day time interval from grantee party compliance and that of the government and native title parties.
On 16 July 2010 Mr. Owens emailed the Tribunal and the other negotiation parties to advise that he had secured the signatures of all the persons collectively comprising the Applicant of the native title party on the four s.31 State Deeds.

Contentions of the Parties

Each of the parties lodged with the Tribunal contentions in accordance with the Directions of 13 July 2010. So far as is relevant, the substance of each of the contentions is set out below.
The grantee party lodged a Statement of Contentions dated 10 August 2010. The Contentions, apart from introductory material and a discussion of general legal principles, contained the following submissions on the proposed future acts:
“4.      THE FUTURE ACT
4.1    The future acts are
(1) in respect to EPM16204 and EPM16847, the grant of an exploration permit for minerals other than coal under the Mineral Resources Act 1989.
Following grant, the Mineral Resources Act 1989 (QLD) will entitle the Grantee Party to exercise the rights set out in s129 of the Mineral Resources Act 1989 (QLD) over the area of EPM16204, EPM16847 subject to the covenants and conditions referred to in s141 of the Mineral Resources Act 1989 (QLD) and such further conditions and endorsements that the Minister may at any time impose under s141(1)(j) of the Mineral Resources Act 1989 (QLD); and
(2) in respect of EPM15098 and EPM15099, the variation of conditions of an existing exploration permit for minerals other than coal under the Mineral Resources Act 1989 (QLD), namely by adding, costeaning to the approved work program of exploration permits pursuant to s141C of the Mineral Resources Act 1989 (QLD).
Following grant, the Mineral Resources Act 1989 (QLD) will entitle the Grantee Party to additionally undertake costeaning.
5. SECTION 39(1)(a)(i) - EFFECT ON ENJOYMENT OF REGISTERED NATIVE TITLE RIGHTS AND INTERESTS
5.1 The native title rights and interests of the NTP are described in the Register of Native Title Claims Federal Court number: QUD 6244/98, NNTT number: QC98/12,
5.2 Notwithstanding such claimed or determined rights and interests, s39(1)(a)(i) of the NTA obliges the NTP to provide evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a): WA v Thomas at 166-167; WMC Resources Ltd/State of Western Australia/Evans at (339-341).
5.3 Further s39(1)(a)(i) of the NTA directs attention to the "physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and … not … purely religious or spiritual relationships with the land": Western Australia v Ward [2002] HCA 28 (8 August 2002); (2002) 213 CLR 1 (WA v Ward) at [104]; and see [105]-[108].
5.4 The NTP has not provided a Submission as contemplated by s31(1)(a) of the NTA (“NTP’s S31(1)(a) Submission”).
5.5 It is submitted that the Future Acts will have negligible effect on the physical enjoyment of native title rights and interests that are of a kind that can be exercised on the relevant land.
6. SECTION 39(1)(a)(ii) - EFFECT ON WAY OF LIFE, CULTURE AND TRADITIONS
6.1 The Grantee Party is largely unaware of the way of life, culture and traditions of the NTP.
6.2 The Grantee Party contends the Future Acts will not have such an adverse effect upon the way of life, culture and traditions of the NTP as to warrant an Future Act being denied, or permitted with conditions.
7. SECTION 39(1)(a)(iii) - EFFECT ON THE DEVELOPMENT OF THE SOCIAL, CULTURAL AND ECONOMIC STRUCTURES OF NTP
7.1 The Grantee Party is largely unaware of the social, cultural and economic structures of the NTP.
7.2 However, the Grantee Party contends the grant of EPM16204 and EPM16847 and the variation to the conditions of EPM15098 and EPM15099 will not have an adverse, effect upon the development of any social, cultural and economic structures of the NTP.
8. SECTION 39(1)(a)(iv) - EFFECT ON FREEDOM OF ACCESS AND CEREMONIES
8.1 The Grantee Party is unaware of the degree to which the NTP accesses EPM16204, EPM16847, EPM15098, and EPM15099 and carries out rites, ceremonies or other activities on the relevant land.
8.2 The Grantee Party contends that the carrying out of the proposed Future Acts will not have any adverse effect upon access of the NTP to the relevant land and the carrying out of rites, ceremonies or other activities.
9. SECTION 39(1)(a)(v) - EFFECT ON AREAS OR SITES OF PARTICULAR SIGNIFICANCE
9.1 Section 39(1)(a)(v) refers to areas that have a particular significance over and above the significance of the NTP country generally: see Minister for Land/Strickland & Ors at p12.
9.2 The Grantee Party is unaware of any areas within EPM16204, EPM16847, EPM15098, and EPM15099 which are of “particular significance” to the NTP.
10. SECTION 39(1)(b) - INTERESTS, PROPOSALS, OPINIONS OR WISHES OF THE NATIVE TITLE PARTY IN RELATION TO MANAGEMENT, USE OR CONTROL
10.1 Other than in relation to matters which the NTP has a contractual right to enforce the Grantee Party is unaware of any expression by the NTP of any ongoing interests, proposals, opinions or wishes in relation to the management, use or control of the relevant land.
11. SECTION 39(1)(c) - ECONOMIC OR OTHER SIGNIFICANCE
11.1 The Grantee Party contends mineral exploration and indeed identification of minable resources assists:
(1)    the local economy by:
(a) allowing the improved management and use or development of a local resource and minerals (land); and
(b)engaging local communities (including the local Aboriginal communities) to provide services to the Grantee Party’s project;
(2)    the State:
(a) indirectly by way of such improved management and use or development of the land; and
(b) directly by payment of royalties in accordance with the Mineral Resources Act 1989; and
(3)    the nation:
(a) by the identification of economically minable resources and thereafter the earning of foreign capital from the sale of minerals; and
(b) by contribution to the national tax base.
12. SECTION 39(1)(e) - PUBLIC INTEREST
12.1 The Grantee Party contends there is a public interest in determining that the proposed Future Acts may be done (including exploration for mineral resources and allowing the management and use or development of a local resource. That is a relevant factor to be taken into account: see Evans v Western Australia at 215.)
13. SECTION 39(1)(f) - ANY OTHER MATTER
13.1 The Grantee Party does not refer to any other matter.
14. BANK GUARANTEE
14.1 The Tribunal, if justified on the evidence, can impose a condition which requires a grantee party to secure a specified amount of money by a bank guarantee in favour of the Registrar of the Tribunal (s 41(3) of NTA).
14.2 The Grantee Party contends this is not an appropriate matter for the imposition of a bond condition for similar reasons referred to in Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, [2008] NNTTA 38 (3 April 2008), namely:
(1) there is virtually no judicial authority on the assessment of compensation for the impairment of native title rights and interests by mining which might guide the Tribunal in determining the quantum of such bond; and
(2) there is nothing to suggest that the grantee party’s financial situation is such that a bank guarantee is needed as a bond or security and the native title party’s right to claim compensation through the Federal Court for any loss, diminution, impairment or other effect of the grant of the proposed lease on their native title rights and interests are not affected by this determination
15. CONCLUSION
15.1 The Tribunal should determine that the act may be done.”

The government party’s Statement of Contentions includes extensive mapping and other material comprising 19 separate annexures. So far as is relevant the government party’s contentions were as follows:
“6.      Section 39(1) of the NTA
6.1 The State is not aware of any information indicating that the grant/variation of the Exploration Permits would be likely to affect the enjoyment by the native title parties of their registered native title rights and interests.
6.2 As set out at paragraph 3.7 above, a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register undertaken by the State did not identify any Aboriginal cultural heritage within or partially within the area of EPMs 15098, 16204 or 16847. The State concedes that this of itself is not determinative of the issue. The Database and Register do not purport to be a record of all Aboriginal cultural heritage in Queensland. The ACHA protects all Aboriginal cultural heritage whether on the Database or Register or not.
6.3 A search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register identified Aboriginal cultural heritage sites within the area of EPM 15099. As noted above, the ACHA operates to protect Aboriginal cultural heritage recorded on the Database or Register.
6.4    In any event, the State contends that any effect on the enjoyment by the native title parties of their registered native title rights and interests by the grant/variation of the Exploration Permits has been contemplated by the parties and dealt with in the "Heritage Agreement for Mineral Exploration" entered into by the parties.
7.   Section 39(2) of the NTA
7.1   The area subject of the Exploration Permits is currently the subject of interests held by third parties, including freehold and leasehold interests.
8.   Section 39(3) of the NTA
8.1    As set out in paragraph 4.10 above, the ACHA protects all Aboriginal cultural heritage, whether or not it is recorded on the Aboriginal Cultural Heritage Database or Aboriginal Cultural Heritage Register.
9.   Section 39(4) of the NTA
9.1    The parties have entered into the "Heritage Agreement for Mineral Exploration" in relation to the Exploration Permits.
10.    Determination Sought
10.1 The Tribunal ought to make a determination that the future act can be done under section 38(1)(c) of the NTA, and the State contends that the terms of the "Heritage Agreement for Mineral Exploration" should be conditions of the future acts.”
Mr Michael Owens, the legal representative for the native title party, lodged with the Tribunal a Statement of Contentions dated 24 August 2010 as follows:
“1.      Introduction
1.1 For the purposes of this Determination Hearing only, the Native Title Party adopts the Statement of Contentions as filed by the Government Party in their entirety.
1.2 The Native Title Party has done nothing that would warrant it being involved in these proceedings.
1.3 The Native Title Party has never opposed nor sought to delay the grant of the EPM 16204 and 16847 nor has it opposed or sought to delay the variation of conditions for EPM's 15098 and 15099.
1.4    In essence, this matter involves a dispute as between the Grantee Party and the Government Party.
2     Comments regarding the Grantee Parties Statement of Contentions
2.1 The statement of contentions as filed by the Grantee Party are in essence merely insubstantial template comments about s39(1)(a) of the Native Title Act 1993 (Cth) ("NTA").
2.2 There is little (if anything) about the Grantee Parties(sic) statement of contentions that allows the Native Title Party to ascertain and understand either the legal basis upon which or why the Grantee Party has failed to execute the s 31 Agreements that were forwarded to it by the State on 24 May 2010.
2.3 The Grantee Party has effectively deprived the Native Title Party from making any significant submissions as to the legal basis of the Grantee Parties actions.
2.4 There is little (if anything) about the Grantee Parties (sic) statement of contentions that would assist the Tribunal in making a decision under s39(1 )(a) NTA.
2.5In the last mention of this matter in this Tribunal, the Grantee Party strongly resisted DP Sosso making orders in the manner and order in which he did.
2.6By filing an insubstantial template statement of contentions, the Grantee Party has in effect reversed the order in which the Grantee Party and the Native Title Party were to file their statement of contentions.
2.7    The Grantee Party has by such action and by having the final right to respond placed itself in the same position had the Government Party and the Native Title Party filed its statement of contentions first in time thus achieving what it failed to convince the Tribunal to do when this matter was last before this Tribunal.
3.   Actions of Grantee Party
3.1 To date, the Grantee Party has put the Native Title Party to significant cost and expense in this matter including the cost, time and effort incurred by the Native Title Party by appearing in this matter and in having the s 31 Agreements signed and forwarded to the Government Party.
3.2Despite numerous protests by the Native Title Party, the Grantee Party has not (in any way whatsoever) sought to avoid or otherwise reduce the costs as incurred by the Native Title Party.
3.3 The Grantee Party has not at any stage attempted to settle this matter or sought a more cost effective and timely means by which it could do the Future Act in circumstances where one was readily available at little or no expense to the Grantee Party and the Native Title Party.
3.4 Instead the Grantee Party has deliberately sought to force the Tribunal to make a determination under s38(1)(c) of the NTA.
3.5 The Native Title Party is of the view that the Grantee Party has deliberately used the provisions of the NTA and the office of this Tribunal to seek some form of retribution as against the Government Party and in doing so to knowingly increase the costs incurred by the Native Title Party.
3.6 The Grantee Party has (since the first mention of this matter in this Tribunal) been aware that the Native Title Party does not have any assets of significance or other resources to waste on some folly or act of retribution by the Grantee Party as against the Government Party.
3.7By proceeding, the Grantee Party has shown complete disregard and contempt for the position of the Native Title Party.
3.8 The actions of the Grantee Party are nothing other than a disgraceful indulgence in circumstances where there is no ability for the NNTT to award costs in these proceedings and the Grantee Party has the resources to adopt the course of action in continuing to seek the making of a determination in circumstances where there was a timely and cost effective alternative in signing the s 31 Agreements.
4.      Failure to Comply
By filing a mere template statement of contentions, the Grantee party has failed to substantially comply with the Orders of DP Sosso.
5.      Abuse of Process
5.1 The Grantee Party has by failing to substantially comply with the orders of DP Sosso shown contempt to the Tribunal.
5.2 The Tribunal should not condone the actions of the Grantee Party by proceeding to make a determination.
5.3 The actions of the Grantee Party are an abuse of process and the Grantee Parties (sic) application for determination should be dismissed.
5.4 Should the Tribunal refuse to make a determination, the Grantee Party would not be deprived of an avenue or means by which it could do the Future Acts in a timely and cost effective manner as it could simply sign the s31 Agreements.
6.      Determination Sought
6.1 Should the Tribunal decide to proceed to make a determination, the Native Title Party submits that the Tribunal should make a determination that the Future Act can be done under s38(1)(c) of the NTA and that the Heritage Agreement for Mineral Exploration that was entered as between the Native Title Party and the Grantee Party on 7 April 2006 (as set out in Annexure 1) be made a condition of the Future Acts.”

Legal Principles

Section 38 of the Act provides that the Tribunal must make a determination either that the relevant future act must not be done or may be done with or without conditions. The Tribunal is prevented from making a determination subject to profit sharing conditions – s.38(2).
None of the parties have contended that the Tribunal should make a determination that the future acts not be done. The fundamental difference between the parties is whether the Tribunal should determine that the future act be done unconditionally or subject to the Heritage Agreement for Mineral Exploration entered into by the grantee and native title parties on 7 April 2006 which was annexed to the native title party’s Statement of Contentions. I note that it is the preference of the native title party (para 5.2 of the Statement of Contentions) that the Tribunal not make a determination at all.
The criteria for making a future act determination are set out in section 39 of the Act. The section provides as follows:
“39 Criteria for making arbitral body determinations
(1)    In making its determination, the arbitral body must take into account the following:
(a) The effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)       the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f)   any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non-native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.”
The long accepted approach by the Tribunal to applying the criteria outlined in s. 39 was explained in Western Australia v Thomas (1996) 133 FLR 124 (at 165-166) as follows:
“We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.”
In this matter there is relatively little evidence before the Tribunal about any of the matters that need to be addressed when weighing the various criteria set out in s.38(1). Subsection 38(4), however, specifically requires the Tribunal, before making a determination, to ascertain whether there are relevant issues on which the negotiation parties agree. If there are, and the parties consent, then in making its determination the Tribunal must take that agreement into account and need not take into account the s.38(1) criteria, to the extent that they relate to those issues. This subsection has been the cornerstone of the Tribunal’s consent determination jurisprudence - Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361.
In this matter there is no unanimity of opinion between the parties on the form of determination that the Tribunal should make. The premise underlying the consent determination jurisprudence is that the parties have reached an accord in principle, but due to circumstances beyond the control of (usually) the native title party, the execution of the s.31(1)(b) agreement is rendered impossible. The parties then submit that the Tribunal make an agreed determination pursuant to s.38(1) in order to give legal effect to the agreement in principle they have reached. In these circumstances an extensive evaluation of the s.39(1) criteria is not required, as reliance can be placed on the agreement of the parties and the operation of s.39(4).

Jurisdiction of the Tribunal to make a determination

Although, in this matter, there is no consensus on the form of the determination that the Tribunal should make, all the parties agree that if the Tribunal makes a determination, then it should be one made pursuant to either s.38(1)(b) or (c). As is clear from the Statement of Contentions of the native title party, its first preference is that no determination be made at all. Although, apart from the suggestion that there had been an abuse of process, no basis for this course of action was outlined, this could only occur in the current circumstances if the Tribunal formed the view that it lacked the power or jurisdiction to make a determination pursuant to s.38.
The general principle that governs matters like this was summed up by Barton J in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 (at 428) as follows:
“... as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court in first instance, just as it may become the duty of the superior court.
On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forgo inquiry unless the objection is taken, and the objector tenders proof of facts in its support.”
The approach the Tribunal takes when a party raises a jurisdictional issue was comprehensively explained in Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 at 133-134. Ordinarily, unless the jurisdiction or power of the Tribunal is challenged, it will proceed on the assumption that it has the jurisdiction or power to make a determination. However, if it is manifestly clear that a jurisdictional issue requires resolution the Tribunal will bring it to the attention of the parties, even if they have not raised it in the first place. Where a party challenges the power or jurisdiction of the Tribunal, such challenge will be carefully considered before the Tribunal moves forward to consider the substance of the matters before it. It is not incumbent on the Tribunal to develop the basis of a challenge, when all that is raised is a suggestion that it may not have power or jurisdiction. In short, where a party raises a substantive challenge, it is incumbent on the Tribunal to deal with that challenge immediately. However, where a jurisdictional challenge is made without the legal basis of the challenge being explained, and where it is obvious that there is not necessarily a strong legal basis for such a challenge, it is appropriate for the Tribunal to proceed on the assumption that it has the jurisdiction or power to make a determination. As the Tribunal observed in Andrews v Northern Territory (2002) 170 FLR 138 (at 155/[60]): “the party making the challenge must clearly raise an issue that goes to the capacity of the Tribunal to make a determination.”
The only basis which ostensibly could found a jurisdictional challenge of the type raised by the native title party would be that the native title party has agreed to the doing of the future acts subject to conditions to be complied with by the grantee party – s.31(1)(b). If the Tribunal were to find that this was the case, then the future act determination application is taken to be withdrawn – s.35(3), and the Tribunal would not have the power to make a s.38 determination.
It is commonly understood in Queensland that the agreement referred to in s.31(1)(b) is the State Deed circulated by the government party rather than the ancillary agreement reached earlier and bilaterally between the grantee and native title parties. In this case none of the State Deeds have been executed by all of the parties. Indeed, each of the four State Deeds has only been executed by the native title party. Accordingly, the initial view that could be formed is that the agreement contemplated by s.31(1)(b) and s.35(3) has not been made and the Tribunal has the power to make a s.38 determination. As none of the parties has filed contentions on this point it would not be sensible for the Tribunal to form a final view. However, it is open for a party to contend that in certain circumstances an ancillary agreement meets the requirements of s.31(1)(b). Certainly such an agreement on its face is a binding accord between the native title and grantee parties which results in the native title party agreeing that the future act be done. The added benefit of a State Deed is that it formalises and adds to the ancillary agreement, but it is constructed on the platform of a pre-existing state of affairs that emanates from the ancillary agreement.
However, even if appropriate contentions had been filed on this point, there is an additional problem for the native title party; namely that in only two of the four matters have ancillary agreements been entered into. Even if the Tribunal were to form the view that the 2006 ancillary agreement met the requirements of s.31(1)(b), and thus the Tribunal lacked the power to make a determination because of the operation of s.35(3), there remain two other future acts where this state of affairs does not exist. Accordingly even on the best case scenario of the native title party, the Tribunal would still have the power and obligation to make a s.38 determination in relation to the two remaining proposed future acts.

To sum up, although the native title party has contended that the Tribunal should not make a determination pursuant to s.38, it has not explained why this is so, or indeed, advanced any legal basis for the Tribunal not making a future act determination other than contending that the grantee party’s future act determination applications constitute an abuse of process. In the absence of any substantive challenge, and proceeding on the basis that prima facie, the Tribunal has power to make a s.38 determination, the Tribunal is obliged then to proceed on the basis that it has the requisite power or jurisdiction to make a determination.

Conditional Determinations

As previously mentioned, s.38(1)(c) empowers the Tribunal to make a determination that the act or acts may be done subject to conditions to be complied with by any of the parties. The type of conditions that the Tribunal may impose was the subject of consideration by Carr J in Walley v Western Australia (1999) 87 FCR 565. After referring to the criteria set out in s.39(1), Carr J said (576/[13]):
“It is true that the list is open-ended, but I think that it provides a very considerable degree of guidance to what Parliament required the Tribunal to consider at the arbitral stage when making its determination. At that stage its function is to determine whether the act may or must not be done and, if it may be done, whether conditions should be imposed. Accordingly, in my view, the above list also provides an indication in broad terms of what Parliament considers might be the appropriate subject matter of conditions which the Tribunal might impose upon the doing of the act (being one of the three matters for determination referred to in s 38(1)). The list has as its common theme a relationship with the likely impact of the future act in question.”
A broad interpretation of s.38(1)(c) was also given by Nicholson J in Evans v Western Australia (1997) 77 FCR 193. His Honour said (213):
“It is necessary to go to the Act to ascertain what it was Parliament authorised in order to determine whether the conditions under challenge conform with the Act or not. Turning firstly to the language in which the power to impose conditions is created, there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2). It is apparent the conditions must be attached to ‘a determination that the act may be done’ subject to the conditions.
The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed.
The consequences flying from the exercise of the power are the proposed act may only be done as if the conditions were terms of a contract among the negotiation parties: the conditions are also subject to overrule: s 42(1); and where the conditions relate to compensation, there is the requirement for payment into trust: ss 41(3) and 52.
From the nature of these provisions there is certainly a requirement for linguistic certainty because, absent it, the conditions could not operate as in contract and provisions for payment could fail.”
Further, s.27B provides that conditions made pursuant to s.38(1)(b) may provide for procedures to be followed by the negotiation parties for dealing with issues that may arise as a result of, or otherwise in relation to, the doing of the future act.
The government and native title parties have submitted, if future act determinations are made, that the Tribunal should determine that the future acts be done subject to compliance with the terms of the 2006 Heritage Agreement for Mineral Exploration which was executed by the native title and grantee parties. That document is divided into 13 parts, namely:
(a)Definitions and interpretation;
(b)Purpose and intention;
(c)Commencement and term;
(d)Declarations and warranties;
(e)Consent;
(f)Benefits;
(g)Environmental conditions;
(h)Indemnities and undertakings;
(i)Renewals; assignments and further tenements;
(j)Disputes;
(k)Notices;
(l)Review of agreement;
(m)General;
(n)Schedule 1; and
(o)Schedule 2.
Clause 2.2 provides that that the parties intend the Agreement to be a Cultural Heritage Duty of Care Agreement for the purposes of s.23(3)(a)(iii) of the Aboriginal Heritage Act 2003 (Qld). Schedule 1 sets out comprehensive cultural heritage protection provisions, including provisions relating to proposed work programs, identification of drill pads and access routes for mobile rigs and related equipment, cultural heritage surveys, human remains and payments for cultural heritage surveys. Schedule 2 deals with administrative payments to a nominated body, as well as other payments, including an annual exploration permit fee.
The remaining provisions of the agreement are of the standard type found in most heritage protection agreements and are of a machinery kind dealing with dispute resolution (10.1 -10.7), annual reviews (12.1), the nature and form of notices (11.1-11.3) and construction of words and phrases (13.2).
The contents of this agreement clearly deal with the sort of matters dealt with in the s.39(1) criteria. Insofar as the agreement provides for cultural heritage clearances, it impacts on the enjoyment of the Birri People of some of their registered native title rights and interests as well as the their way of life, culture and traditions by ameliorating the impact of the doing of the future acts on those rights and interests as well their life, culture and traditions. The payment of various fees as set out in Schedules 1 and 2, will assist with the development of the economic structures of the native title party. Cultural heritage surveys and clearances will impact and guide access to various parts of the proposed tenement areas by the grantee party and its employees as well as assist in protecting any areas or sites of particular significance to the Birri People. In short, the various terms of the 2006 Agreement cumulatively deal with most of the matters contemplated by the enumerated criteria in s.39(1).
The Tribunal has before it uncontested evidence that there are a large number of Aboriginal cultural heritages sites within the boundaries of EPM 15099. The 2006 Agreement assists in the protection of those identified sites, but the Aboriginal Cultural Heritage Register does not contain an exhaustive list of all sites in any given area. It provides indicative assistance only. Consequently, the cultural heritage provisions of the 2006 Agreement are intended to provide more comprehensive and pro-active protection for unregistered sites.
To sum up, the power to impose conditions pursuant to s.38(1)(c) is relatively broad, but such conditions must be clear and capable of enforcement. Further, such conditions must be linked to the type of matters dealt with by the s.39(1) criteria. The terms of the 2006 Agreement fall within the type of matters which the Federal Court has determined it is appropriate for the Tribunal to consider when making a conditional determination.

Conclusion

Both the grantee party and the government party outlined in their respective contentions why the grant of the tenements would be in the public interest and would assist the local and State economies. I refer, in this regard, to the following observations of Nicholson J in Evans v Western Australia (1997) 77 FCR 193 (at 215): “Where there is evidence the proposed act will have the effect of contributing to on-going exploration activities essential to the health of the mining industry and to the economy, that will be evidence falling within the statutory description of public interest which must be taken into account.” In this matter there is very little, if any direct evidence, about the current and proposed exploration activities of the grantee party. There are contentions; but contentions are not, of themselves, primary evidence of the type that Nicholson J was referring to. Nonetheless, it is a matter of public knowledge that the grant of exploration permits is central to the maintenance of a healthy and feasible mining industry in Queensland. In this matter, then, I accept that there is a public interest and public benefit in the doing of the proposed acts – s.39(1)(e).
The grantee party contends that there is little or no direct evidence about the enjoyment of the native title party’s registered native title rights and interests, or of the possible effect on the way of life, culture and traditions of the native title party. It is the case nonetheless, as the government party submits, that Aboriginal cultural heritage has been registered in one of the tenements. More significantly, the government party points out (at para 6.4) that any effect on the enjoyment of the registered native title rights and interests has “been contemplated by the parties and dealt with in the ‘Heritage Agreement for Mineral Exploration’ entered into by the parties.”
The contention of the government party has merit. It is uncontested that in two of the four tenements there is a longstanding agreement between the grantee and native title parties dealing with the sort of issues contemplated by s.39(1)(a). That agreement was freely entered into. If the grantee party had not wished to enter into such an agreement it could have relied on the standard Native Title Protection Conditions issued by the government party. Instead it reached a voluntary accord with the native title party.
At no stage during this inquiry has it been said that there is any substantial disagreement between the grantee and native title parties. It appears that the main problem which has resulted in this matter proceeding to a determination is the unwillingness of the grantee party to execute the s.31 State Deeds in the form prepared by the State of Queensland. The grantee party has not raised any problems or issues with the capacity or willingness of the native title party to reach an accord, and there has been understandable frustration expressed by the legal representative of the native title party about this regrettable state of affairs.
The Tribunal has been presented with a very curious scenario. In this matter it is difficult to understand why it has been necessary for the grantee party to seek a future act determination. There has been no shortage of good will evinced by both the legal representatives of the government and native title parties to reach an accord. The native title party even executed all four State Deeds, including two where it had not negotiated a new ancillary agreement, all in an endeavour to avoid the Tribunal being required to make a s.38 determination. Nonetheless it is open to the grantee party to avail itself of its right to seek a future act determination, and none of the other negotiation parties has challenged the grantee party’s right to do so on the basis that it has failed to negotiate in good faith, even though, in this matter, there is no record of any negotiations having taken place with respect to two of the tenements.
Both the government and native title parties seek a conditional determination. Both contend that the Tribunal should determine that the acts be done subject to compliance with the Heritage Agreement for Mineral Exploration entered into by the grantee and native title parties with respect (inter alia) to EPM 15098 and 15099.
There would be no difficulty in making such a determination with respect to those tenements, as presumably, they would continue to apply to those tenements after the new costeaning condition is added. The more difficult issue is whether it is appropriate to make a determination that EPM 16204 and EPM 16847 should also be subject to the terms of this agreement.
I have reached the conclusion that it is appropriate to make a determination in accordance with the contentions of the government and native title parties. The Tribunal has considered the terms of the Heritage Agreement for Mineral Exploration. It is a relatively standard agreement entered into by explorers with native title parties. Its terms are not exceptional. Moreover, the terms of the agreement comport with the type of matters that arise when evaluating the criteria prescribed by s.39. In addition, it is an agreement that was negotiated by the grantee party with the native title party for two of the four tenements. No submission was made by the grantee party that the terms of this agreement were inappropriate, unjust or unconscionable. Indeed, even though the grantee party had a right of reply following the submission of the contentions of the government and native title parties, it did not avail itself of this opportunity.

Determination

The determination of the Tribunal is that the acts, namely:
(a) the grant of Exploration Permits for Mineral 16204 and 16847 to Carpentaria Gold Pty Ltd; and
(b) the variation of the conditions for Exploration Permits for Mineral 15098 and 15099 to Carpentaria Gold Pty Ltd,

may be done subject to compliance by the grantee party and the native title party with the terms of the Heritage Agreement for Mineral Exploration dated 7 April 2006 and executed by the Applicant of the Birri People and Carpentaria Gold Pty Ltd and attached to this Determination and marked “Schedule 1”.

John Sosso

Deputy President