Eureka Petroleum Pty Ltd and Bularnu Waluwarra Wangkayujuru Aboriginal Corporation RNTBC and Another - [2022] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Eureka Petroleum Pty Ltd and Bularnu Waluwarra Wangkayujuru Aboriginal Corporation RNTBC and Another [2022] NNTTA 3 (20 January 2022)

Application No:

QF2021/0002, QF2021/0003, QF2021/0004

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

- and -

IN THE MATTER of an inquiry into a future act determination application

Bularnu Waluwarra Wankayujuru Aboriginal Corporation RNTBC (QCD2014/009)

(native title party)

- and -

Eureka Petroleum Pty Ltd

(grantee party)

- and -

State of Queensland

(Government party)

DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS

Tribunal:	Ms H Shurven, Member
Place:	Melbourne
Date:	20 January 2022

Catchwords:	Good faith: Native title – future act – application for a determination in relation to three Authority to Prospect (ATP) tenements – power to make determination – whether State has negotiated in good faith – State has negotiated in good faith – Tribunal has power to proceed with future act determination inquiry Substantive inquiry: Native title – future act – application for determination in relation to proposed grant of ATP tenements – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – proposed conditions – determination that the act may be done with conditions
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 30, 35, 36, 38, 39, 109, 142, 203 Petroleum and Gas (Production and Safety) Act 2004 (Qld)
Cases:	Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (Adani Mining v Diver) Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (Cheinmora v Striker Resources) Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 (Dempsey v Queensland) Evans v Western Australia; [1997] FCA 741; Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (Koara 2) [1997] FCA 741 FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 911 (FMG Pilbara v Cheedy) FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141 (FMG Pilbara v Cox) Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation [2005] NNTTA 88; (2005) 196 FLR 52 (Gulliver v Western Desert Land Aboriginal Corporation) Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (Hogan v Hinch) Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 (Osland v Secretary, Department of Justice) Strickland v Minister for Lands for Western Australia [1998] FCA 868; (1998) 85 FCR 303 (Strickland v Minister for Lands) Western Australia v Dimer [2000] NNTTA 290; (2000) 163 FLR 426 (Western Australia v Dimer) Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas)
Representative of the native title party:	Thelma Parker, Bularnu Waluwarra Wangkayujuru Aboriginal Corporation (RNTBC)

Representatives of the grantee party:

John Phillips and Stephen Rodgers, Eureka Petroleum Pty Ltd

Representatives of the Government party:

Karen Dawson and Julieanne Butteriss, Department of Resources

Anita Cope, Crown Law

REASONS FOR DETERMINATION

On 3 October 2012, the State of Queensland (the State) notified under s 29 of the Native Title Act 1993 (Cth) (the Act) that it intended to do the future act of granting the following Authority to Prospect (ATP) applications, which are each approximately 7,000 square kilometres in size, located between 120-200 kilometres south west of Mt Isa:
·ATP 1114
·ATP 1117
·ATP 1123
Each ATP is within the external boundary of the Bularnu Waluwarra Wangkayujuru People native title determination (see Dempsey v Queensland).
The three ATP’s are adjacent to each other, forming a total area of approximately 23,000 square kilometres. Each ATP was sought by Eureka Petroleum Pty Ltd, ACN 107 185 222 (Eureka Petroleum). A grant of each ATP (through provisions of the Petroleum and Gas (Production and Safety) Act 2004 (Qld)) would authorise the holder to explore for petroleum for a term not exceeding twelve years (see, for example, s 32 and s 42).

Who are the parties to this inquiry?

Any person who, four months after the notification day, is a native title party (a registered native title claimant or a body corporate) in relation to any of the land or waters that will be affected by a future act, has a procedural right to negotiate with respect to its grant (see s 30(1)(a) and s 31 of the Act). The Bularnu Waluwarra Wangkayujuru Aboriginal Corporation (RNTBC) (Bularnu Waluwarra Wangkayujuru) is the native title party in this application. Bularnu Waluwarra Wangkayujuru hold the native title on trust for the Bularnu Waluwarra Wangkayujuru Aboriginal People.
The normal negotiation procedure is that the ‘negotiation parties’ must negotiate in good faith with the native title party with a view to obtaining their agreement to the doing of the future act (s 31(1)(b) of the Act). The ‘negotiation parties’ with respect to the ATPs in this inquiry are the State, Eureka Petroleum and Bularnu Waluwarra Wangkayujuru (s 30A of the Act). Under s 35 of the Act, any negotiation party may apply to the arbitral body for a determination under s 38 of the Act if there is no such agreement, provided at least six months have passed since the s 29 notification date.
For convenience, I have listed the main relevant entities who feature throughout the materials provided by parties, in addition to the State of Queensland:
·Eureka Petroleum – sought the ATPs. Mr Stephen Rodgers is the Company Secretary for Eureka Petroleum and applied for the future act determinations. Blue Energy Ltd owns all of the shares in Eureka Petroleum. Mr John Phillips is the Managing Director of Blue Energy and a Director of Eureka Petroleum - he provided an affidavit with 16 annexures totalling over 700 pages of information in support of the grantee party contentions.
·Bularnu Waluwarra Wangkayujuru - is the native title party. Ms Parker is the contact person on the corporations extract for the Bularnu Waluwarra Wangkayujuru Aboriginal Corporation, available on the Office of the Registrar of Indigenous Corporations (ORIC) website. At the preliminary conference, Ms Parker confirmed she is the chairperson for the Bularnu Waluwarra Wangkayujuru Aboriginal Corporation and the representative for this inquiry. The Tribunal wrote to the three addresses available on the public record for Bularnu Waluwarra Wangkayujuru, being the address on the National Native Title Register and the two addresses listed on the ORIC extract. Correspondence was sent on 15 September 2021 and 19 October 2021, providing a copy of the directions for this inquiry and a letter outlining the future act determination process.

The future act determination applications

On 6 August 2021, the National Native Title Tribunal accepted an application from Eureka Petroleum for a future act determination in relation to each of the ATPs (see ss 35 and 38 of the Act). The applications stated parties had been negotiating since 2014 but had been unable to reach agreement.
I was appointed by the Tribunal President to conduct the inquiry and make a s 38 future act determination in relation to each application.

Tribunal power to make a determination

If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith, the Tribunal must not make a determination (see s 36(2) of the Act). The implication of s 36(2) was explained by the Full Federal Court in FMG Pilbara v Cox (at [11]) as follows:
... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.
A preliminary conference was held on 18 August 2021. No lack of good faith allegations were raised against Eureka Petroleum by Bularnu Waluwarra Wangkayujuru. Ms Parker noted that, broadly speaking, the native title party was disillusioned by the State’s processes, and if she sought to press that, she would put something in writing, and would need approximately a week to seek instructions. At the preliminary conference, parties gave a brief history of the matter, including that conjunctive and disjunctive draft agreements had been exchanged between the grantee and native title party over the years of negotiating, but they could not agree on all terms. One sticking point was that Eureka Petroleum argued some terms of the draft agreement were not consistent with those agreements made between the company and other native title parties. Ms Parker argued that each native title party is unique and Bularnu Waluwarra Wangkayujuru should be treated accordingly. Ms Parker also noted a concern of the native title party was to ensure heritage and dreamings were undisturbed by the exploration process.
Materials provided by parties during the inquiry indicated that the conjunctive agreement negotiations had not progressed between 2014 and 2015, and that the disjunctive draft agreement, initially proposed in approximately 2015, had not received a substantive response between 2017 and 2019, for example.
At the preliminary conference, I noted to parties they were able to continue negotiating in parallel with the inquiry process, and I would be flexible with timelines for the inquiry depending on progress toward an agreement, but that ultimately I was bound to make a timely decision in these future act determination applications. Between the preliminary conference in August, and an oral hearing in November, it appeared little, if any, negotiation was undertaken. This mirrored a pattern in relation to these ATPs since approximately 2016, where little progress appeared to have been made toward agreement. The history of the negotiations as represented in the materials provided for the inquiry indicated the main impediment to negotiations had been difficulty in engaging Bularnu Waluwarra Wangkayujuru, despite Ms Parker and Eureka Petroleum expressing willingness to work towards an agreement.
At the preliminary conference, the State undertook to provide materials relevant to this matter and its long history to Ms Parker, which they did so on 24 August 2021, and copied in the Tribunal and Eureka Petroleum. I note Ms Parker has been engaged in the negotiations on behalf of the Bularnu Waluwarra Wangkayujuru for many years, initially represented by Queensland South Native Title Services (QSNTS) and since approximately 2020, the native title party has been self-represented.
Further attempts to clarify the Bularnu Waluwarra Wangkayujuru instructions in relation to the inquiry were not fruitful – a case management conference set for 8 September 2021 was postponed, as Ms Parker advised the day before she was no longer available, and this again occurred for the rescheduled date of 15 September 2021. Rather than persevere with further case management conferences, I set an oral hearing to be held on 26 October 2021, giving all parties notice so they could obtain any necessary instructions and gather relevant materials – this was communicated to parties on 15 September 2021. Attached to that correspondence was a copy of the directions for providing evidence, together with a letter outlining the future act determination process. The directions indicated that if parties had documents they wished to include in this inquiry, they should send them to the Tribunal and all parties on or by 19 October 2021.
On 14 October 2021, Eureka Petroleum requested the oral hearing be rescheduled to allow more time to present materials. I took no issue with that and on 19 October 2021 the Tribunal again wrote to Ms Parker and the three addresses for the Bularnu Waluwarra Wangkayujuru, providing details of the hearing rescheduled for the 26 November 2021. Correspondence was also sent on 14 December 2021, providing a copy of the draft conditions. No response was received from Bularnu Waluwarra Wangkayujuru in relation to any of the correspondence.
Given the Tribunal has a statutory imperative to make a decision in future act applications in as timely a manner as possible (taking into account ss 109 and 142 of the Act), parties were reminded by correspondence from the Tribunal that any allegations of good faith could be outlined and responded to by other parties, as needed, at the oral hearing, as well as the s 39 criteria being ventilated.

The oral hearing

At the oral hearing on 26 November 2021, parties were informed that given the lack of progress in the negotiations, I was not minded to allow further time for same. I also outlined that I would hear from parties at the oral hearing and issue my decision in due course, and in any event, before 6 February 2022 which was 6 months since the applications were accepted.
I outlined that as Ms Parker had previously raised concerns about interference with heritage and dreamings on the ATP areas, the inquiry could end with a decision that conditions be applied to mitigate such interference. Eureka Petroleum outlined that the draft Cultural Heritage Management Plan clauses in relation to these ATPs had contemplated heritage clearances and such mitigation, and agreed to send those draft clauses to the Tribunal and other parties that day, which they did. They also outlined there was flexibility in relation to the work program and well positions, to avoid cultural heritage disturbance.
Before I can make a determination about the grant of the future acts, I must be satisfied the State and Eureka Petroleum negotiated in good faith with a view to obtaining the agreement of Bularnu Waluwarra Wangkayujuru (as required by s 31(1)(b)). At the hearing on 26 November 2021, Ms Parker confirmed Bularnu Waluwarra Wangkayujuru did not wish to raise allegations of lack of good faith against Eureka Petroleum, but they did wish to allege the State had not negotiated in good faith, in the context of its native title processes. Ms Parker also noted sorry business had delayed her being able to lodge her documents for this inquiry.
To ensure procedural fairness, I allowed Bularnu Waluwarra Wangkayujuru until 3 December 2021 to lodge any documents in relation to the assertion of lack of good faith on the part of the State, and also the same period of time to provide any documents in relation to the effect of the ATP grants on the native title rights and interests. Both the State and Eureka Petroleum were also provided with a week, until 10 December 2021, to respond to any written materials provided.
No materials were provided by Ms Parker. The State responded to the broad allegations of lack of good faith made in the hearing on 26 November 2021, noting that they were captured in the good faith allegations on the basis of a misunderstanding of the State’s role in the process, specifically the suggestion that State provides funding to QSNTS (the previous representative of Bularnu Waluwarra Wangkayujuru). In fact, the State clarified to parties that QSNTS is a Native Title Service Provider funded by the Australian Government under section 203FE of the Act, and not funded by the Government of the State of Queensland. The State further outlined that QSNTS receives operational funding from the Australian Government through the National Indigenous Australians Agency, and is a Public Company Limited by Guarantee. The State confirmed they do not provide any funding to QSNTS.

The obligation to negotiate in good faith

The obligation to negotiate in good faith is set out in s 31 of the Act:
s 31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i)     the doing of the act; or
(ii)    the doing of the act subject to conditions to be complied with by any of the parties.
(2) If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph     (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of the paragraph.

Legal Principles for assessing negotiation in good faith

The effect of s 36(2) of the Act is to require the party alleging the lack of good faith to produce material to support the allegation. As explained in Gulliver v Western Desert Lands Aboriginal Corporation (at [10]):
The Tribunal has said that the practical effect of s 36(2) is to place an “evidential burden” on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Dempster, Western Australia and Bayside Abalone [1999] NNTTA 235 Hon EM Franklyn QC (at 4, 21); Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (21 December 1999) (at [21]-[28])).
The expression ‘negotiate in good faith’ is not defined in the Act and should be given its ordinary and natural meaning as it appears within the statutory context of s 31(1)(b). This incorporates both a requirement of subjective honesty of intention and sincerity and an objective standard of overall reasonableness (See Strickland v Minister for Lands and cases therein). The good faith indicia as a whole focus on conduct which is ‘unreasonable’, ‘unexplained’ or ‘unnecessary’. I must look at the overall conduct of the parties in all of the circumstances (see Western Australia v Dimer at [85] and Adani Mining v Diver at [34]).
The requirement for good faith is directed to the quality of a party’s conduct ‘to be assessed by reference to what a party has done or failed to do in the course of negotiations’ (FMGPilbara v Cox (at [20]). It is this broad, overall assessment that directs my inquiry. It is not restricted to a moment or portion of time, but rather I must look at the overall conduct of the relevant parties and be satisfied, on the basis of this overall conduct, whether they negotiated in good faith.
Ms Parker did not provide any substantive information or evidence in relation to the good faith allegations against the State, and the State explained their position in relation to the comments that were provided.

Conclusion in relation to good faith

I am satisfied the State negotiated in good faith as required by s 31(1)(b) of the Act. According to s 36(2) of the Act, I have the power to proceed to make a determination on the future act determination applications brought in respect of ATP 1114, ATP 1117 and ATP 1123.

The substantive inquiry process

Section 38 of the Act prescribes the type of decision I can make in respect of these future act determination applications, being, in summary:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.

Eureka Petroleum sought a future act determination that the acts of granting ATP 1114, 1117 and 1123 may be done by the State of Queensland (s 38(1)(b)).
All parties were given the opportunity to provide written materials in advance of the oral hearing scheduled for 26 November 2021. The State provided such materials, as did Eureka Petroleum. Bularnu Waluwarra Wangkayujuru did not provide any written materials before the oral hearing, and as outlined above, were allowed additional time to do so. No information was provided.
The Eureka Petroleum materials summarised that negotiations had been ongoing for approximately 10 years, and provided evidence of: meetings between them and the various legal representatives for Bularnu Waluwarra Wangkayujuru (which changed over the period of negotiations, with Ms Parker as the constant); exchanges of draft agreements and terms; and a request for Tribunal mediation. Ultimately, parties have been unable to reach agreement.
I considered the criteria outlined in s 39 of the Act in the context of the oral and written submissions and evidence available.

Eureka Petroleum’s intended work program

The State provided Eureka Petroleum’s intended work program for each ATP, which sets out the minimum work commitment for the first four years of the 12 year permit term.
Each ATP has similar intended work programs, including for years one and two: geological and geophysical studies; and seismic acquisition (approximately 250 kilometres of data to assist identify shale gas well locations), at a cost of approximately four million dollars. In years three and four, two wells will be drilled in each year from the previous year’s results, at a cost of approximately six to 12 million dollars each year. The wells will each be approximately 3,500 metres deep. The total expenditure across those first four years is estimated to be 31 million dollars for each ATP.

Native title rights and interests

In 2014, Bularnu Waluwarra Wangkayujuru were determined to hold exclusive native title rights and interests to possession, occupation, use and enjoyment of part of the claim area, other than in relation to water, to the exclusion of all others. A portion of ATP 1123 includes an area of exclusive native title.
In other areas of the claim, which includes areas covered by the ATPs in this inquiry, Bularnu Waluwarra Wangkayujuru were determined to hold non-exclusive rights to:
a)access, be present on, move about on and travel over the area;
b)camp on the area and for that purpose, build temporary shelters;
c)hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
d)take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
e)take and use the Water of the area for personal, domestic and non-commercial communal purposes;
f)conduct spiritual, cultural and religious activities and ceremonies on the area;
g)be buried and bury native title holders within the area;
h)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from harm;
i)teach on the area the physical and spiritual attributes of the area;
j)hold meetings on the area;
k)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
l)be accompanied on to the Non-exclusive Area by the Indjalandji-Dhidhanu law men who, though not native title holders, are people required by traditional law and custom for the performance of ceremonies related to the bushfire dreaming story on the Non-exclusive Area.

Section 39 criteria

Section 39(1)(a)(i) – the effect of the act on the enjoyment of Bularnu Waluwarra Wangkayujuru’s registered native title rights and interests

Section 39(1)(a)(ii) – the effect of the act on Bularnu Waluwarra Wangkayujuru’s way of life, culture and traditions

Section 39(1)(a)(iv) – the effect of the act on Bularnu Waluwarra Wangkayujuru’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance

Section 39(1)(a)(i) directs me to consider the effect of the act on Bularnu Waluwarra Wangkayujuru’s enjoyment of their registered native title rights and interests. This requires an evaluation of whether the grant of the ATPs will constrain or otherwise affect the exercise of Bularnu Waluwarra Wangkayujuru’s registered rights and interests. This is a matter of fact to be determined on the evidence in each inquiry (Western Australia v Thomas at 167). Section 39(1)(a)(ii) requires me to have regard to whether the proposed ATPs will have a tangible effect on Bularnu Waluwarra Wangkayujuru’s contemporary way of life, culture and traditions (see FMG Pilbara v Cheedy at [62]). Section 39(1)(a)(iv) focuses on freedoms related to the ATPs.
There is little information provided which relates to these three limbs of s 39. However, given Bularnu Waluwarra Wangkayujuru have determined native title rights and interests, and the exploration activities will to some extent, from time to time affect their access to the areas, I intend to impose a condition whereby access will not be unreasonably withheld by Eureka Petroleum. This will ensure a limited effect on the enjoyment of Bularnu Waluwarra Wangkayujuru native title rights and interests under s 39(1)(a)(i), on their way of life, culture and traditions under s 39(1)(a)(ii), and on their freedoms related to the ATPs under s 39(1)(a)(iv).

Section 39(1)(a)(iii) – the effect of the act on the development of Bularnu Waluwarra Wangkayujuru’s social, cultural and economic structures

Section 39(1)(a)(iii) requires me to consider the effect of the proposed ATPs on the development of the Bularnu Waluwarra Wangkayujuru social, cultural and economic structures. The effects may be positive or negative, having regard to adverse effects, as well as effects that are likely to promote the development of those structures (see Western Australia v Thomas at 170). The State outlines (at 6.2-6.3) that this limb is best addressed by evidence from the native title party, and does refer to aspects of the State’s regulatory regime which mitigates such effects from exploration activities (for example, environmental restrictions, and restrictions imposed under the Petroleum and Gas (Production and Safety) Act 2004 (Qld)).
Based on the limited information before me on this limb of s 39, I consider it has not been established there are likely to be negative effects on the development of Bularnu Waluwarra Wangkayujuru’s social, cultural and economic structures.

Section 39(1)(a)(v) – the effect of the act on any site or area of particular significance to Bularnu Waluwarra Wangkayujuru in accordance with their traditions on the land or waters concerned

Section 39(1)(a)(v) requires me to have regard to the likely effect of the proposed ATPs on any areas or sites on the land and waters concerned that are of particular significance to Bularnu Waluwarra Wangkayujuru in accordance with their traditions. An area or site is ‘of particular significance’ if it is of special or more than ordinary significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources at 34-35).
During the hearing, as at the preliminary conference, Ms Parker noted it was of concern to Bularnu Waluwarra Wangkayujuru to ensure heritage and dreamings were not disturbed. The usual method of ensuring those protections are to conduct some form of cultural heritage survey or clearance, which the parties clearly contemplated during their negotiations, but were ultimately unable to reach agreement on terms. State contentions annexed cultural heritage reports for each ATP (at 20, 21 and 22), noting:
·For ATP 1114 – various artefact scatters; a dwelling, and an Aboriginal Historical Place (identifier AH-0019-1)
·For ATP 1117 – various artefact scatters and cultural sites; a Story Place (identifier AH:A09); and an Aboriginal Intangible Place (identifier AH-0018-1)
·For ATP 1123 – two artefact scatters; an area categorised as Burial(s) (identifier AG00000001); an Aboriginal Historical Place (identifier AG-0084-1); quarries and an Aboriginal Intangible Place (identifier AH-0001-1)
I accept that at the least, the Aboriginal Historical Place (ATP 1114), the Story Place and Aboriginal Intangible Place (ATP 1117) and the Burials, Aboriginal Historical Place and Aboriginal Intangible Place (ATP 1123) are of particular significance to Bularnu Waluwarra Wangkayujuru. It is unclear the extent to which any of these areas relate to the dreamings. I intend to impose conditions on the grant of the ATPs to ensure that the effect of the exploration on any sites of particular significance is mitigated.

Section 39(1)(b) – Bularnu Waluwarra Wangkayujuru’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act

There is insufficient evidence to find the acts will have an effect upon the interests, proposals, opinions or wishes of Bularnu Waluwarra Wangkayujuru in relation to the management, use or control of the land.

Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area

Section 39(1)(c) directs me to consider the economic or other significance of the act to Australia, the State, the area on which the land or waters concerned are located and the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the proposed ATPs, rather than a generalised inquiry into the importance of exploration or mining to the local or national economy.
A report commissioned by the QSNTS to assist the native title party assess the project and the compensation package (attached at page 32-70 of the Future Act Determination Application) outlines background information on shale gas projects, together with the Queensland gas environment, and the financials related to this particular project (based on the 2014 conjunctive agreement). The State contentions outline economic benefits such as employment and infrastructure upgrades (at 6.7). Eureka Petroleum has also provided financial and commercial information related to these ATPs.
I am satisfied the work program proposed on the ATPs is likely to produce economic benefits associated with exploration expenditure and rental payments to the State and to the nation. It is not clear as at the time of this decision what economic or other benefit there will be to Aboriginal peoples who live in the area, or to members of the Bularnu Waluwarra Wangkayujuru community in particular.
While the commercial negotiations contemplated economic benefits to the Bularnu Waluwarra Wangkayujuru, as well as other benefits (such as education, training, and business development opportunities (as outlined at page 33-34 of the report commissioned by the QSNTS, referred to at [45] above), parties were ultimately unable to reach agreement on those matters, and no evidence was provided in relation to this criteria by Bularnu Waluwarra Wangkayujuru. In addition, I am precluded from determining a condition that, in summary, has the effect of a native title party being entitled to payments worked out by reference to the amount of profits made, or income derived, or things produced (see s 38(2) of the Act). Taking all of that information into account, I do not impose any conditions in relation to this limb of s 39.

Section 39(1)(e) – Any public interest in the doing of the act

Section 39(1)(e) directs me to consider the public interest in the grant of the proposed ATPs. The term ‘public interest’ derives its content from the subject matter, scope and purpose of the legislation in which it appears (see Hogan v Hinch at [31]). The question of what is ‘in the public interest’ may require consideration of competing arguments about, or features or facets of, the public interest (see Osland v Secretary, Department of Justice at [137]).
Based on the information which has been provided, I am satisfied the grant of the ATPs will contribute to the development of the petroleum industry in Queensland, and there is a public interest in the grant of the ATPs.

Section 39(1)(f) – Any other matter the Tribunal considers relevant

Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters the Tribunal considers relevant, provided they fall within the scope, subject matter and purpose of the Act (see Koara 2).
No party has raised any other matter which I should consider, nor have I found any other matter which I consider relevant to this inquiry.

Conditions

The Tribunal has a broad power to impose conditions, where there is evidence or support for such (see for example, the principles outlined in Koara 2). Materials provided by parties show cultural heritage places exist on each ATP, and Ms Parker’s comments regards protection of heritage and dreamings must be taken into account. In addition, the report commissioned by the QSNTS to assist the native title party assess the project and the compensation package (at page 35, as referred to at [45] above) refers to the importance of cultural heritage and provisions to protect same.
Indications are, from the evidence of negotiations between Eureka Petroleum and Bularnu Waluwarra Wangkayujuru, that protection of cultural heritage was an important issue. For example, the draft agreement (at 8.3) contains clauses such as ‘The parties acknowledge that this agreement is made for the purpose, among other things, or providing a Clearance as a workable and effective arrangement to abide by and implement the Avoidance Principle and thereby, subject to the provisions of this Agreement, avoid disputes between them’. The ‘avoidance principle’ is defined as ‘to avoid Harm to Aboriginal Cultural Heritage and, to the extent that Harm cannot reasonably be avoided, to minimise Harm to Aboriginal Cultural Heritage’. Ultimately, parties could not reach agreement on commercial terms, and the cultural protection conditions contained in the ancillary documents were not concluded.
On the basis of the available evidence and information, I proposed a draft set of conditions, and parties were given up to 22 December 2022 to consider those and provide input. No input was provided by Bularnu Waluwarra Wangkayujuru and the State indicated they had no comment.
Eureka Petroleum suggested a minor timeframe amendment, additional details for the conduct of clearances, and suggested six further conditions relating to dispute resolution processes, to assist parties should issues arise. I accepted these conditions on the basis that both parties indicated throughout that communication was an important issue. I made some minor amendments to those six further conditions, and they are now at 27-32 of the final conditions to be imposed on each grant, as attached at Annexure A.
The conditions at Annexure A are the conditions to be imposed on each of the ATPs as a result of this inquiry process and determination, and those conditions will be in addition to any imposed by the State on the grant of the ATPs.

Determination

The determination of the Tribunal is that the act, being the grant of ATP 1114 to Eureka Petroleum Pty Ltd may be done with conditions.
The determination of the Tribunal is that the act, being the grant of ATP 1117 to Eureka Petroleum Pty Ltd may be done with conditions.
The determination of the Tribunal is that the act, being the grant of ATP 1123 to Eureka Petroleum Pty Ltd may be done with conditions.

Helen Shurven
Member
20 January 2022

Annexure A: Conditions on the grant of each of ATP 1114, ATP 1117 and ATP 1123

Defined terms

Aboriginal Cultural Heritage	has the same meaning as prescribed in the Aboriginal Cultural Heritage Act 2003
Applicable Laws	includes any law (including the common law and criminal laws), statutes, laws, directives, local laws, by-laws, regulations, rules, orders, proclamations, or delegated or subordinate legislation of the Commonwealth or any State or Territory of Australia or other applicable jurisdiction or ruling of any governmental body
Avoidance Principle	means to avoid harm to Aboriginal Cultural Heritage and, to the extent that harm cannot reasonably be avoided, to minimise harm to Aboriginal Cultural Heritage
Clearance	means the process of inspecting the land to identify anything that may be Aboriginal Cultural Heritage including any archaeological or historical site or object ('clear', 'cleared', 'clearing' and ‘clearances’ have corresponding meanings)
Clearance Report	means a written report concerning the nature and extent of any Aboriginal Cultural Heritage in relation to an area the subject of a Clearance and the recommendations for implementing the Avoidance Principle in relation to any Clearance provided by the Specialist
Common Law Holders	as defined on the National Native Title Register and in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528
Exclusive Area	as defined in The National Native Title Register as all of the land and waters within the External Boundary described in Part 1 and depicted in the Determination Plan AP20081 (depicted in blue on the Determination Plan AP20081, and described as ‘Lot 1 on Plan CT5 Lot 6 on AP20081’)
Force Majeure	acts of God, flood, fire or damage caused by lightening, storm, tempest, unseasonable rains, strikes, lockouts or other industrial disturbance, riots, blowouts, laws, rules, regulations, or directions of a governing body having jurisdiction over the Tenement Area, religious or other ceremonial activities of members of the Native Title Party, inability to obtain equipment or material or any other causes which by the exercise that party is unable to prevent or overcome
Future Act	The acts contemplated by the grant by the State of Queensland of the Tenements, namely, the ability to undertake approved petroleum and gas exploration across the entirety of the land within the bounds of the Tenements
Native Title Party	Bularnu Waluwarra Wangkayujuru Aboriginal Corporation (RNTBC)
Operational Area	means any part of ATP 1114 and/or ATP 1117 and/or ATP 1123, on which, from time to time the Petroleum Company proposes to carry out Petroleum Operations
Party/Parties	means the Native Title Party and/or the Petroleum Company
Petroleum Company	means Eureka Petroleum Pty Ltd and includes any assignee or transferee of Eureka Petroleum Pty Ltd
Petroleum Operations	means operations and activities carried out pursuant to, or for the purpose of giving effect to, a Tenement and includes but is not limited to accessing Operational Areas, seismic surveying, drilling, geological, geophysical and other exploration activities, and the development, test production, but not commercial production, gathering, separating, pressure maintenance, dehydrating, heating, treating, processing, handling, transportation, fractionation, storage and distribution and marketing of Petroleum test produced, but not commercially produced, from the Tenement, including the design, capacity, installation, operation, maintenance, repair and replacement of all facilities required, and any camp site or other living area, air strip, water bore site and drill site
Specialist	a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional
Tenement/s	means ATP 1114 and/or ATP 1117 and/or ATP 1123
Work Site/s	means any camp site or other living area, air strip, water bore site, drill site or other location for Petroleum Operations activity by the Petroleum Company over the tenement/s

Clearance

1. Following the grant of one or more of the Tenements, the Petroleum Company must not conduct Petroleum Operations over part or whole of the relevant Tenement unless it has first caused a Clearance to be conducted over that area, subject to conditions 2 – 12.
2. If the Petroleum Company proceeds with their Petroleum Operations, the Petroleum Company will at the first available opportunity, involve the Native Title Party in the Clearance.
(a)The Petroleum Company will notify the Native Title Party of the name of the representative of the Petroleum Company responsible for Petroleum Operations from time to time on the Tenement, such notice to be given 14 days in advance in writing where practicable.
(b)The Petroleum Company will inform all of its contractors, employees, agents and visitors of the obligation upon them to contain Petroleum Operations within seismic line access corridors or work sites which have been inspected and cleared.

3. At least 90 days in advance of Petroleum Operations being conducted in an Operational Area a written request for a Clearance on that Operational Area accompanied by particulars in writing of the following parts of the Petroleum Company's proposed work programme, namely:

(a)The proposed locations of Operational Areas;

(b)the proposed location of seismic lines and access roads;

(c)the proposed approximate location of Work Sites;

(d)the proposed method of seismic operations (specifically whether two or three dimensional seismic operations over specific areas) and other consequential operations, including exploration drilling and testing and the proposed construction or use of access roads in such operations;

(e)the major items of equipment proposed to be used;

(f)the location of any proposed earthworks for the disposal of any waste material arising out of Petroleum Operations;

(g)the location of any proposed earthworks for minimising environmental disturbance or pollution, including oil spills and blowouts;

(h)the proposed site and nature of any buildings or structures (including pipelines and associated facilities); and

(i)any other aspect of the Petroleum Operations which is likely to have an adverse impact upon or cause substantial disturbance to Aboriginal Cultural Heritage in any part of the Tenement.

Conduct of the Clearance

4. The Clearance must be conducted by:
(a)a suitably qualified Specialist or other heritage professional, agreed between the Native Title Party and the Petroleum Company, acting reasonably, engaged and paid for by the Petroleum Company, and
(b)up to a maximum of four Common Law Holders nominated by the native title party (nominated persons), to ensure the integrity of the Clearance as thought by the Native Title Party acting reasonably to be appropriate, in accordance with Aboriginal culture and tradition. Nomination by the Native Title Party must be in writing and include full contact particulars of the nominated persons who shall be physically capable of safely walking the distances required of the Clearance. If requested by the Petroleum Company, acting reasonably, and at the Petroleum Company’s expense, the Native Title Party will provide a Doctors certificate for a nominated person evidencing good health suitable to carry out the Clearance. The Petroleum Company will nominate a representative to assist the nominated persons for the duration of the Clearance. The Native Title Party will ensure the nominated persons are ready to commence Clearance work within 40 days after the provision of particulars of the proposed work programme, or such shorter time as may be agreed between the Parties from time to time.

5.   Subject to any law, the Clearance must be completed within 60 days of the Native Title Party’s nomination, with the Parties cooperating in good faith on the conduct of the Clearance.
6.   If during the conduct of the Clearance, the Native Title Party or their Specialist identify any Aboriginal Cultural Heritage that might be a basis for the denial of a Clearance or the imposition of conditions in respect to that Operational Area, the Native Title Party or its Specialist, will as soon as possible inform the Petroleum Company to enable it to nominate an alternate Operational Area or some other method of applying the Avoidance Principle.
Clearance Report
7.   The Native Title Party must either themselves or through the Specialist promptly notify the Petroleum Company upon completion of a Clearance and, as soon as practicable, but no later than 28 days after the completion of the Clearance, the Native Title Party either itself or through the Specialist must provide a Clearance Report to the Petroleum Company. The Report must:
(a)identify those parts of the Operational Area which are given Clearance by the Native Title Party or denied Clearance by the Native Title Party;
(b)identify any alternative Operational Areas for which Clearance is given in accordance with the requirements and describe any conditions on which the Native Title Party has provided in the Clearance so as to implement the Avoidance Principle.

8.   Neither the Native Title Party nor a nominated person is compelled to disclose to the Petroleum Company or to the Petroleum Company's representative the location of Aboriginal Cultural Heritage, or any Cultural Confidences whatsoever with respect to the Tenement.
Payment for Clearance
9.   The Petroleum Company must pay all reasonable costs, fees, disbursements and expenses incurred by the Native Title Party in carrying out a Clearance and provision of the Clearance Report, in accordance with a Budget and subject to any agreement in writing between the Parties. This is not intended to include the costs of other members of the Native Title Party who may attend as observers to the Clearance.
Non-participation in Clearance
10.   If the Native Title Party does not participate in the Clearance within time frames agreed between the Native Title Party and the Petroleum Company, and;
(a)the failure to participate is not due to a default of the Petroleum Company; or
(b)the failure to participate is not due to an event of Force Majeure,

then the Petroleum Company may proceed with the relevant Petroleum Operations without further reference to, or involvement of, the Native Title Party, provided the Petroleum Company takes reasonable steps to avoid harm in the area impacted by Petroleum Operations. The Petroleum Company will notify the Native Title Party that the Native Title Party has failed to participate prior to proceeding with Petroleum Operations.
11. If the Petroleum Company proceeds with the relevant Petroleum Operations in accordance with condition 10, and the Native Title Party then give notice, in writing, to the Petroleum Company that the Native Title Party wishes to participate in a Clearance, the Petroleum Company will at the first available opportunity, provided it is reasonably practicable, involve the Native Title Party.
Reliance on Clearance
12. Subject to the Aboriginal Cultural Heritage Act 2003 (Queensland), the Petroleum Company will be absolutely entitled to rely on Clearances provided by the Native Title Party and to plead this provision in defence of any complaint of interference to Aboriginal Cultural Heritage made by any person pursuant to any Applicable Law.

Cultural awareness

13. The Petroleum Company will use reasonable endeavours to educate all employees, contractors and sub-contractors who may be involved in Petroleum Operations conducted on the Tenements, to ensure those persons have an awareness and an understanding of:
(a)native title and the relationship between the Native Title Party and the relevant Tenement, and in particular the relationship between the Native Title Party and its cultural heritage; and
(b)its obligations under the Aboriginal Cultural Heritage Act 2003 (Queensland), the Aboriginal and Torres Strait Islander Heritage Protection Act (1984) (Commonwealth), the Native Title Act in relation to abiding by and implementing the Avoidance Principle and in particular the cultural heritage duty of care imposed by section 23 of the Aboriginal Cultural Heritage Act 2003.

14. Appropriate education for the purposes of condition 13 will include, for those persons whose duties will involve them in actual disturbance to or excavation of earth, basic instruction from a Specialist, engaged and paid for by the Petroleum Company, to assist them to identify Aboriginal Cultural Heritage generally, human skeletal remains, archaeological sites and objects which may be buried in the earth.
(a)A Specialist to be engaged for the purpose of carrying out the education functions specified in condition 13 will be nominated by the Native Title Party with the agreement of the Petroleum Company (which agreement will not be unreasonably withheld). The Specialist will be assisted in carrying out the education functions by up to two Common Law Holders nominated by the Native Title Party.
(b)The Petroleum Company will promote among people employed in Petroleum Operations acknowledgement, understanding and respect for the tradition and culture of the Native Title Party.
(c)The Petroleum Company will ensure that all employees and personnel are given appropriate instruction on such aspects of the Native Title Party's traditions, history and culture as are known to or reasonably obtainable by the Petroleum Company.
(d)The Petroleum Company will consult with and have regard to the views of the Native Title Party in relation to the formulation and presentation of the instruction referred to in condition 14(c) which presentation will be given by up to two Common Law Holders nominated by the Native Title Party and assisted as needed by representatives of the Petroleum Company.

15. The Native Title Party will, whenever requested by the Petroleum Company to do so, give all reasonable assistance to the Petroleum Company in attaining the objectives of condition 13 and will be reimbursed by the Petroleum Company for all reasonable expenses incurred by the Native Title Party, subject to obtaining the Petroleum Company’s prior written approval to incurring those expenses.
16. If, at any time in the course of carrying out Petroleum Operations the Petroleum Company or any person acting on behalf of the Petroleum Company (despite a Clearance) identifies anything that may be Aboriginal Cultural Heritage including any archaeological or historical site or object, or any site or object which the Petroleum Company or any person acting on behalf of the Petroleum Company suspects to be Aboriginal Cultural Heritage, then in addition to obligations under the Aboriginal Cultural Heritage Act 2003 (Queensland) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth), the Petroleum Company will promptly report the location of such site or object to the Native Title Party; and the location of the site or object will be treated by the Petroleum Company as though no Clearance in relation to it had previously been given and any relevant object will be left in situ without being moved or interfered with pending further Clearance.

Access

17. Any right of the Native Title Party to access or use the land the subject of a Tenement is not to be restricted except in relation to those parts of the land which are used for Petroleum Operations or for safety or security reasons relating to those activities. Safety or security reasons means any belief held on reasonable grounds that there is a hazard to the health or safety of any person, or a reasonable risk of destruction to property or damage to property or unauthorised use of facilities or equipment on the Tenement.

Communications

18. Within 30 days after the grant of a Tenement, the Petroleum Company must establish a liaison committee (liaison committee) with members comprising:
·up to two persons nominated by the Petroleum Company; and
·up to two Common Law Holders nominated by the Native Title Party.

19. The function of the liaison committee will be to provide a forum for the exchange of information between the Petroleum Company and the Native Title Party concerning:
(a)Petroleum Operations on the Tenement, including related infrastructure, access routes, and proposed changes to those operations; and
(b)matters of importance to either the Native Title Party or the Petroleum Company as they relate to the Petroleum Operations.

20.   The Petroleum Company must give written notice to the Native Title Party of its intention to form the liaison committee and invite written nominations from the Native Title Party in respect of its members on the liaison committee.
21.   The liaison committee must meet at least annually. If none of the committee members nominated by the Native Title Party, or their substitutes, attend three committee meetings in a row, the Petroleum Company is not required to continue the liaison committee (subject to condition 22).
22.   If the Petroleum Company proceeds with the relevant Petroleum Operations in the absence of the liaison committee, and the Native Title Party then give notice, in writing, to the Petroleum Company that the Native Title Party wishes to participate in a liaison committee, the Petroleum Company will at the first available opportunity, provided it is reasonably practicable, reinstate the liaison committee.
23.   Subject to any law, the liaison committee meetings must be open to the following who may attend as observers if they wish to do so:
(a)a total of up to five other Petroleum Company representatives, and
(b)a total of up to five other representatives of the Native Title Party.

24. The location of the liaison committee meetings will be on the relevant Tenement, unless agreed otherwise by the liaison committee members.
25. The reasonable costs incurred by liaison committee members in attending a liaison committee meeting must be paid by the Petroleum Company. This is not intended to include the costs of observers attending, or professional costs of legal or other representation or advice, or inter-state travel, and each party will bear their own such costs.

Assignment

26. Upon assignment of a Tenement, the Petroleum Company must ensure the assignee is bound by these conditions.

Resolution of Disputes

Notice of Dispute
27.   If:
(a)   any Party considers that the other Party has breached any condition; or
(b)    in the event of any dispute between the Parties in respect of these conditions,
(each a dispute) a Party may serve a written notice of the dispute containing full particulars of the dispute on the other Party. The Parties must attempt to meet, discuss and resolve the dispute within 14 days of a Party receiving a notice of dispute.
Mediation
28.   If the dispute cannot be resolved within 14 days of one Party giving the other Party notification of the dispute, if all Parties agree, the dispute may be referred to mediation.
(a)Where a matter is referred to mediation the Parties will attempt to agree to the appointment of a mediator. Failing agreement, the mediator must be a suitably qualified person nominated by the President (or President's delegate) of the Queensland Law Society.
(b)In a mediation session, each Party may be represented by a qualified legal practitioner.

Determination by Court or Tribunal
29. If:
(a)the Parties fail to refer a dispute to mediation pursuant to condition 28; or
(b)the Parties fail to reach agreement on a dispute within 14 days of the commencement of a mediation pursuant to condition 28,

either Party may refer the dispute to the Land Court for determination. If the Land Court does not have jurisdiction to determine a dispute, either Party may seek to have the dispute determined in a court or tribunal of competent jurisdiction.
No Premature Legal Action
30.   No Party will commence any legal action in a court or tribunal until the dispute resolution procedures outlined in condition 27 and 28 have been exhausted.
Urgent Injunctive Relief
31.   Nothing prevents a Party from seeking any urgent injunctive relief in relation to a dispute.
Petroleum Company may continue Petroleum Operations
32.   Notwithstanding the existence of any dispute, the Petroleum Company may continue with its Petroleum Operations until the dispute is determined or agreed provided that the Petroleum Company complies with any order or direction made by a tribunal or court which determines the dispute or any agreement made in relation to the dispute.

General

33. The Petroleum Company must take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
34. The Petroleum Company will not undertake any Future Act on the Exclusive Area.