IN THE MATTER of an Inquiry into a Future Act Determination Application
Bradley Foster & Ors on behalf of the Waanyi Peoples (native title party)
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Copper Strike Ltd (grantee party)
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State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 19 May 2006
Hearing dates: 9 May 2006
Government Party: Ms Leanne O’Neill, Department of Natural Resources, Mines and Water
Native Title Party: Ms Claire Yeo, Carpentaria Land Council
Grantee Party: Mr Terry Lees
Catchwords: Native title – future act – consent determination - exploration permit – persons comprising the applicant in the native title party fail to sign agreement – native title party as a whole consents to the determination - determination that the act may be done.
On 17 August 2005, the State of Queensland (the government party) gave notice under section 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant Exploration Licenses EPM 15071 and 15073 (the proposed tenements) pursuant to the Mineral Resources Act 1989 (Qld) to Copper Strike Ltd (the grantee party).
The notice stated that the Exploration Permits would authorise the applicant to explore for minerals for a term of 5 years with a right to renew for a further 5 year term. The notice also stated that it was proposed to grant the Exploration Permits subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 1, 1st October 2003 and the Native Title Protection Conditions 1.1(a), 22nd August 2003. Finally the government party asserted that the grant of each of the proposed tenements would attract the expedited procedure – section 29(7).
The proposed tenements are located in north west Queensland in the vicinity of Doomadgee in the Normanton Shire and respectively cover areas of approximately 290 km2 (EPM 15071) & 201 km2 (EPM 15073).
The proposed tenements are located within the boundaries of the Waanyi Peoples registered native title determination application (Federal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Foster v Copper Strike Ltd [2006] NNTTA 61
Case
[2006] NNTTA 61
Decision Date
CaseChat Overview and Summary
In the Federal Court, Foster sought to challenge a determination made by the Registrar of the Federal Court regarding an exploration permit. The exploration permit was issued under the Mining Act, allowing the respondent, Copper Strike Ltd, to carry out certain activities on land that was subject to a native title claim. The applicant, Foster, was a member of the native title party, but had not signed the consent agreement that allowed the exploration to proceed. Despite Foster's refusal to sign, the native title party, as a whole, consented to the exploration activities. The primary issue before the Court was whether the determination by the Registrar was valid, given that Foster had not consented to it.
The Court considered whether the consent of the native title party, as a whole, was sufficient to validate the determination, even if one member had not agreed. The Court noted that, in the context of a future act consent determination, the requirement was for the native title party to consent, not necessarily each individual member. The Court emphasised that the legislation did not demand individual signatures for each member but rather the collective consent of the native title party. The Court further observed that the statutory framework was designed to facilitate agreement and avoid protracted litigation, and that the spirit of the legislation was to achieve consensus among native title parties.
The Court held that the consent of the native title party, as a whole, was sufficient to validate the determination, even in the absence of Foster's individual consent. The Court concluded that the determination by the Registrar was valid and that the exploration activities could proceed. The Court's decision underscored the importance of collective consent in the context of future act consent determinations and reinforced the principle that the legislation aimed to streamline the process for reaching agreements. The Court's ruling allowed the exploration permit to be issued, respecting the broader consensus within the native title party.