Foster v Copper Strike Ltd
[2006] NNTTA 61
•19 May 2006
Reported at (2006) 200 FLR 182
NATIONAL NATIVE TITLE TRIBUNAL
Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006)
Application No: QF06/1 & QF06/2
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into a Future Act Determination Application
Bradley Foster & Ors on behalf of the Waanyi Peoples (native title party)
- and -
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.
Legislation: Mineral Resources Act 1989 (Qld) ss 141, 141AA
Native Title Act 1993 (Cth) ss 29, 30A, 31, 32, 35, 38, 39, 62A, 66B, 203B, 203BB, 203BC
Cases: Ankamuthi People v Queensland (2002) 121 FCR 68
Button v Chapman [2003] FCA 861
Foster/Queensland/Copper Strike Ltd [2006] NNTTA 44 (27 April 2006)
Foster/Queensland/Copper Strike Ltd [2006] NNTTA 45 (27 April 2006)
Little/Tantalum Australia NL and Mawson West Ltd/Western Australia [2006] NNTTA 22 (10 March 2006)
Minister for Mines (WA)/Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998)
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Moore v Mungeranie (2005) 193 FLR 62
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 220 ALR 431
REASONS FOR FUTURE ACT DETERMINATION
Background
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 Court QUD6022/99) (the native title party).
On 9 December 2005 the native title party lodged with the Tribunal expedited procedure objection applications pursuant to section 32(3). The Tribunal convened a Preliminary Conference on 17 January 2006 and a number of Status Conferences to ascertain if an agreement could be reached in each matter or whether each matter should be listed for hearing. In the event, on 21 April 2006 the Tribunal was advised by the government party, pursuant to section 32(7), of its withdrawal of the assertion that each proposed future act attracted the expedited procedure. On 27 April 2006 the Tribunal formally dismissed each of the expedited procedure objection applications – Foster/Queensland/Copper Strike Ltd [2006] NNTTA 44 and 45 (27 April 2006).
As a result of the withdrawal of the assertion that the expedited procedure applied to the grant of the proposed tenements, the normal negotiation procedure as mandated by section 31 applied. In short, each of the negotiation parties (the government party, the native title party and the grantee party – section 30A) was required to negotiate in good faith with a view to obtaining the agreement of the native title party to either the doing of the act unconditionally or with conditions – section 31(1).
On 24 April 2006, the native title party made an application (Form 5) pursuant to section 35 of the Act for a future act determination under section 38. The application was made, in conformity with section 35(1)(a), more than 6 months after the notification day.
In its section 35 application, the native title party stated that agreement had been reached in principle but outlined the reason why the “in principle” agreement was incapable of finalization: “this agreement has not been executed due to four of the 26 people who make up the applicant not having signed the agreement. Two of these people have not been located and two others have refused to sign. The Waanyi native title claim group has at meetings agreed that this agreement should be executed by the people who make up the applicant”. It should be noted that there are 28 named persons who collectively constitute the Applicant.
However, as will be detailed hereunder, three of those persons have passed away. Further, of the 28 named persons, a further three were unable to be located, and thus did not sign the agreements, and a further person has refused to sign the agreements. Consequently 21 of the 28 persons who collectively comprise the applicant have signed the two “in principle” agreements.
Subsequently on 26 April 2006 Ms Claire Yeo, the Future Acts Officer of the Carpentaria Land Council Aboriginal Corporation (CLCAC), filed a sworn Affidavit outlining the relevant facts and circumstances. Whilst Ms Yeo deposes that Chalk and Fitzgerald Lawyers and Consultants is the solicitor on the record for the Waanyi Peoples in the substantive Federal Court proceedings, CLCAC has instructions to act for the native title party in relation to all future act matters. CLCAC is also the representative body for the area covered by the proposed tenements.
[10] Ms Yeo deposed that on 4 April 2005 representatives of the grantee party attended a meeting with representatives of the native title party in Doomadgee at which agreements were reached with respect to two exploration tenements. The terms of those agreements were said to be the same as those agreed to in principle in these matters.
Further, Ms Yeo deposes that representatives of the Waanyi Peoples met in Doomadgee on 15 December 2005 and gave CLCAC general instructions to proceed with all future act ancillary agreements that provide benefits that are substantially better than those afforded by the Native Title Protection Conditions. Pursuant to section 141 of the Mineral Resources Act 1989 (Qld) each exploration permit is granted subject to enumerated conditions. In addition to the conditions specifically outlined the section provides for such other conditions as may be determined by the Minister – section 141(1)(j). Section 141AA further provides that such conditions may include native title protection conditions. “Native title protection conditions” are defined by section 141AA(3) as follows:
“native title protection conditions” for an exploration permit, means conditions that –
(a) are about ways of minimizing the impact of the permit on native title in relation to the land affected by the permit, including ways of accessing the land and ways anything authorised under the permit may be done; and
(b) are identified in the permit as native title protection conditions for the permit.”
[12] The State of Queensland has issued standard “native title protection conditions” the latest version of which is dated 22 August 2003. For the purposes of this inquiry I have considered those conditions before making a determination under section 38.
[13] The following twenty eight persons collectively comprise the Applicant of the Waanyi Peoples native title determination application:
(a)Bradley Foster;
(b)Charlie Jack (Snr);
(c)Danny Fowler;
(d)David Darby;
(e)Don George;
(f)Douglas Willets;
(g)Edwin Jacob;
(h)Gordon Douglas;
(i)Henry Aplin;
(j)Henry Daly; (Deceased)
(k)Jack Hogan;
(l)Kevin Cairns;
(m)Maxwell King;
(n)Neville Barclay;
(o)Peter Bell; (Deceased)
(p)Peter O’Keefe;
(q)Reggie Carlton;
(r)Roy Second; (Deceased)
(s)Russell Rockland;
(t)Tony Douglas;
(u)Troy Hookey;
(v)Ada Walden;
(w)Del Burgen;
(x)Hazel Sewter;
(y)Mary Cameron;
(z)Maureen Gregory;
(aa)Nancy George; and
(bb)Shirley Chong.
[14] Ms Yeo filed with the Tribunal the Death Certificates of Mr Peter Bell and Mr Henry Daly. Mr Bell’s recorded date of death is 13 February 2005 and Mr Daly’s is 22 July 1999. Neither Mr Daly nor Mr Bell were alive during the negotiations with the grantee party and consequently neither has executed the relevant ancillary agreements.
[15] Mr Roy Second executed the ancillary agreements but has subsequently passed away.
[16] Ms Yeo deposes that Messrs Gordon Douglas, Tony Douglas and Danny Fowler have not executed the ancillary agreements but in each case this is not due to a refusal to sign, but rather difficulties in locating them. Both Messrs Gordon and Tony Douglas reside in Doomadgee but neither was present in Doomadgee when staff from CLCAC visited to obtain their signatures. Furthermore neither gentleman attended the 15 December 2005 meeting. However, Ms Yeo informed the Tribunal at the 9 May 2006 Preliminary Conference that both gentlemen had executed the identical agreements referred to previously. Further, Ms Yeo confirmed that neither gentleman had ever given an indication that he opposed executing the relevant agreements or, indeed, expressed any reservations whatsoever about the grantee party and concluding agreements with it.
[17] Finally, Ms Yeo deposes that Mr Peter O’Keefe has refused to execute the agreements. While he was invited to attend, he did not attend either the 4 April or 15 December 2005 claim group meetings. He, nonetheless, did execute the previous similar agreements. Ms Yeo deposed as follows:
“25…Mr Peter Cameron, a member of the Waanyi claim group, asked Mr O’Keefe to sign the agreement on 20 February 2006 when he visited him at Doomadgee. Mr Cameron then contacted me by telephone on 20 February 2006 and advised that Mr O’Keefe had refused to sign the agreement. It is my understanding from Peter Cameron, that Mr O’Keefe refused to sign the agreement for personal reasons, and that this refusal is not specific to the Copper Strike agreement.
26. I believe Mr O’Keefe will not sign any Waanyi agreements. He has refused to sign other current Waanyi s31 ancillary agreements. I believe his reasons for refusing to sign are based on longstanding disagreements between himself, other members of the Waanyi claim group, and other Traditional Owners in the Gulf.
27. Some of the other Waanyi People who comprise the Applicant are aware of Mr O’Keefe’s refusal to act according to their instructions.
28. Some Waanyi People have attempted to talk to Peter O’Keefe and explain the importance of signing these agreements, but have been unsuccessful.
29. I do not believe Mr O’Keefe has raised any concerns regarding the negotiations with Copper Strike. As far as I am aware, Peter O’Keefe has made no comments in relation to the content of the agreement.”
[18] By letter dated 5 May 2006 Mr Tom Eadie, the Managing Director of the grantee party, advised the Tribunal that “Copper Strike Ltd consents to the Tribunal making a determination pursuant to section 38(1)(c) of the Native Title Act 1993 (Cth) that the future act may be done subject to conditions.”
[19] On 9 May 2006 the government party filed with the Tribunal its Submissions. In those Submissions the government party indicated its consent to the Tribunal making a section 38(1)(c) determination that the future acts may be done subject to conditions. The conditions suggested by the government party were the terms of the ancillary agreement negotiated by the grantee party and the native title party.
The inquiry
[20] On 9 May 2006 the Tribunal convened a hearing. Each of the negotiation parties was present at the hearing and made submissions.
[21] Ms Yeo appeared on behalf of the native title party. She confirmed the matters outlined in her Affidavits of 26 April 2006 and elaborated on a number of points. Without labouring the matter, the key matters outlined by Ms Yeo at the hearing, in general terms, were:
(a) CLCAC has represented the Waanyi Peoples for some time with respect to future act proceedings;
(b) CLCAC has a good understanding of the internal dynamics and decision making processes of the Waanyi People;
(c) there has been no general or specific objection raised by any of the persons who constitute the Applicant to the terms of the agreements negotiated with the grantee party;
(d) the terms of the agreements are more favourable to the native title party than the terms of the native title protection conditions;
(e) the proposed agreements allow greater scope for Work Area Clearances, and the survey teams can comprise up to 8 people (as compared with 4 as provided for by the native title protection conditions). The agreements also provide greater scope for the involvement of anthropologists in surveys and permit the holding of a cultural heritage workshop at which up to 4 Waanyi People can attend and are paid $370 per day. Finally there is also provision for the employment of a ‘Project Coordinator’ to liaise between the grantee and native title parties;
(f) the refusal of Mr O’Keefe to execute the agreements is not related to the terms of the agreement;
(g) Mr O’Keefe has previously executed two agreements with the grantee party which are identical in terms to the “in principle” agreements in these matters;
(h) the refusal of Mr O’Keefe to execute the agreements is not based on concerns relating to community or social activities or sites of significance on or within the proposed tenements, nor is his refusal based on any concern that the proposed exploration activity is likely to result in disturbance to the environment of the subject areas. Ms Yeo provided the following explanation of the reason why Mr O’Keefe had not signed the proposed agreements:
“Mr O’Keefe seems to be in general disagreement of Land Council participation in Waanyi matters. He has signed previous agreements. It’s quite difficult for me to really understand why sometimes he will and sometimes he won’t, but he seems to have disagreements with other members of the Waanyi claim group who have been involved in surveys and all sorts of different things. The other members of the Waanyi claim group that I talk to have tried to talk to Mr O’Keefe to encourage him to sign the agreements because it’s of disadvantage to the whole group, however, that hasn’t eventuated as yet. I have met Mr O’Keefe and I did actually – he signed other agreements with me in the past, so – and because he disagrees to sign any sort of Waanyi agreement at the moment it’s not a specific thing that he has with the concept of the agreement. He’s not actually interested in talking to anyone about anything to do with Waanyi matters at the moment. So I can’t even sit down with him and explain the terms of the agreement”; and
(i) the claim group, as a whole, is supportive of the proposed agreements.
[22] As the designated representative body CLCAC is required to undertake a number of functions, including facilitation and assistance, dispute resolution and agreement making – section 203B. In particular a representative body is required to assist native title holders (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to, inter alia, future acts – section 203BB(1)(b)(ii). In carrying out this function, a representative body is required to consult with, and have regard to the interests of, native title holders and when representing such persons to be satisfied that they understand and consent to any course of action that the representative body takes on their behalf in relation to the matter – section 203BC(1).
[23] Accordingly, a representative body is vested under Part 11 of the Act with numerous powers and functions aimed at ensuring that registered native title bodies corporate, native title holders or persons who may hold native title are provided with professional, independent and competent advice. For the purposes of this matter, the Act clearly envisages that when a representative body is requested to provide facilitation and assistance functions (see section 203BB(2)) in relation to future acts, that body will provide independent advice and assistance in an endeavour to ensure that appropriate decisions are made in accordance with proper decision making processes – section 203BC(2).
[24] In numerous determinations the Tribunal has emphasised the important role that representative bodies can play in determining whether a consent determination is appropriate. For example, in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 Deputy President Sumner said (at 370-371):
“Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has been properly given, based on the established decision-making processes of the native title claim group. The fact that a representative Aboriginal and Torres Strait Islander body is involved in assisting the native title party (s 202 of the Native Title Act) would add weight to a decision that a consent determination is appropriate.”
More recently in Little/Tantalum Australia NL and Mawson West Ltd/Western Australia [2006] NNTTA 22 (10 March 2006) at [11], Deputy President Sumner said:
“The Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party.”
For the purposes of this inquiry I adopt the approach outlined by Deputy President Sumner in regard to the significant role that is played by representative bodies in this area, and the potential importance of advice provided by officers of such bodies in relation to the decision making processes of native title holders in general and the specific endorsement of native title holders to “agreements” that are the subject of a section 38 determination. Further, the fact that a native title party has had the benefit of either private legal representation or the services of a representative body goes some way towards assuring the Tribunal that there has been a parity of bargaining power in the negotiations and that any “consent” given by the native title holders is informed because it has been based on solid and competent advice – see also Moore v Mungeranie (2005) 193 FLR 62 at 77/[58].
[25] Ms Yeo is an experienced officer of CLCAC and regularly appears before the Tribunal in future act hearings. She has assisted the Tribunal on numerous occasions during those hearings and, in particular, has worked with the Waanyi Peoples for some time. She has regularly assisted the Waanyi Peoples in their commercial negotiations with various exploration and mining companies. She has also engaged in extensive travel related activity both in organising and attending claim group meetings and also in locating persons who collectively comprise the Applicant to obtain their signature on various ancillary agreements and State Deeds. Clearly when a claim group has authorised such a large number of persons as has the Waanyi Peoples to represent them as the Applicant and to deal with all matters arising under the Act in relation to their native title determination application (section 62A) logistic and other problems inevitably arise. These problems are further compounded when members of the claim group reside or work in remote areas of Australia which are difficult to visit because of problems of distance, weather conditions and poor roads. It is in this context that Ms Yeo and other officers of CLCAC perform their professional duties. I have specifically taken into account both Ms Yeo’s experience in working with and representing the Waanyi Peoples for some time and the difficult circumstances of a legal and logistic nature that necessarily arise in effectively providing competent and professional representation.
[26] The government party elaborated on its written submissions at the 9 May 2005 hearing. The following written contentions were made by the government party in support of the Tribunal making a consent determination:
“7.1 A consent determination as sought is appropriate in these circumstances because the Grantee Party and the State have provided their written consent to such a determination and because the other available evidence supports such a determination.
7.2 All parties are legally represented and their consent is informed and based on competent legal advice and due consideration.
7.3 Despite the lack of unanimity within the Native Title Party, the evidence supports the submission that the Native Title Party ‘as a whole’ has consented to the determination, in that 22 (sic) of a total of 28 claimants have executed the Ancillary Agreement. Of the six claimants who have not signed, two are deceased, three have been difficult to locate and remain unfound and only one has refused to sign..
7.4 The only available evidence supports the submission that the reasons for the single claimant refusing to sign the Ancillary Agreement are personal, in that they concern his interpersonal relationships with other claimants, rather than concerns regarding the content of the agreement. Indeed, the evidence reveals that this particular claimant had previously negotiated and executed similar agreements in the past, both with the Grantee Party and with other parties.
7.5 The evidence also supports the submission that the Ancillary Agreement reached between the Grantee Party and the Native Title Party satisfactorily addresses matters such as compensation, employment opportunities, and particularly cultural heritage protection, and is similar in terms to previous agreements, and the Ancillary Agreement addresses those issues set out in section 39(1) of the NTA.
7.6 The area has a history of mining exploration and it is not likely that the grant of the proposed tenement would affect the way of life, culture or traditions of the native title party.”
The Law
[27] Since the determination of Deputy President Sumner in Minister for Mines (Western Australia)/Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998), the Tribunal has frequently determined that it has the power to make a future act determination pursuant to section 38 with the consent of the negotiation parties without conducting a detailed inquiry, provided that it is appropriate to do so in the circumstances. The relevant legal principles underpinning the Tribunal’s approach to consent determinations are set out in Minister for Mines (Western Australia)/Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998), Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 and Moore v Mungeranie (2005) 193 FLR 62. I adopt, for the purposes of this inquiry, the statements of law governing consent determinations which are contained in those determinations.
[28] One key issue in a “consent” determination is whether the negotiation parties have reached an “in principle” agreement. If the parties have reached agreement section 39(4) requires the Tribunal before making a determination to take that agreement into account and dispenses with the Tribunal taking into account those matters outlined in section 39(1) to the extent that they are dealt with in the agreement. The term “agreement” for the purposes of section 39(4) should be construed liberally having regard to its logical operation in the scheme of the “right to negotiate” provisions. Clearly this subsection was inserted to deal with partial agreements. However, it can also apply to situations where the negotiation parties, while reaching an “in principle” accord, cannot formalise that accord by means of an enforceable executed contract. The Tribunal has previously dealt with numerous circumstances where such a situation arises, including difficulties in locating persons or sudden illness or death.
Reliance can also be placed on section 39(1)(b) which requires the Tribunal, in making a section 38 determination, to take into account the interests, proposals or wishes of a native title party. The persons comprising the applicant are required to properly represent the interests, proposals and wishes of the wider claim group. In such circumstances, the Tribunal is entitled to have regard to any material that is adduced in the course of an inquiry which illustrates the views of the claim group.
[30] Finally, the Tribunal is also entitled, when making a section 38 determination, to have regard to any other matter which it considers relevant – section 39(1)(f). One key matter which is relevant when making a determination is whether the “in principle” agreement has the support of the claim group as a whole, and, in particular, those members of the claim group who may be particularly affected by the doing of the future act – see also the comments of Deputy President Sumner in Minister for Mines (Western Australia)/Evans/Townson Holdings NL at p.3.
[31] In short, when looked at as a whole, the scheme of section 39 enables the Tribunal to make consent determinations that truly accord with the interests and wishes of the claim group, despite the fact that due to unforseen circumstances there is not an ability for all of the persons who collectively comprise the applicant to execute a contract. However, as is explained shortly, while section 39 provides the legal leeway for the Tribunal to make a consent determination despite the absence of a binding written agreement, it does not enable the Tribunal to substitute its view for that of the applicant unless there is a full section 39 inquiry. A “consent determination” is only permissible when it is clear from the evidence adduced, that there is not internal dissent within the persons comprising the applicant or the wider claim group on the doing of the future act from the perspective of the merits of the agreement or the potential impact of the act. As Deputy President Sumner said in Minister for Mines (Western Australia)/Evans/Townson Holdings NL (at pp. 3-4): “the Tribunal, once it has decided that it has jurisdiction to make a determination (which it will do unless there is a dispute about it or some obvious issue of fact or law which calls it into question), has the power with the consent of the parties to make any of the determinations referred to in s.38.”
[32] The “right to negotiate” provisions have been drafted with the clear aim of promoting agreement-making. Once a government party gives notice under section 29 any of the negotiation parties can request the Tribunal to mediate, and the Tribunal must mediate to assist in obtaining their agreement – section 31(3). Even after a negotiation party has applied to the Tribunal under section 35 for a section 38 determination, the Act specifically contemplates that the negotiation parties can continue to negotiate. Further, if an agreement is reached before a determination is made, the section 35 application is taken to have been withdrawn – section 35(3). To further assist the parties, the President (or his delegate) may direct the holding of a conference of the parties to help in resolving any matter that is relevant to a future act inquiry – section 150. It is the practice of the Tribunal, once future act mediation has ceased, to assist the negotiation parties by the convening of section 150 conferences if there is a realistic prospect of a negotiated outcome, and if the parties indicate their desire to participate in what is, in effect, the parallel processes of negotiation and arbitration.
[33] The cumulative effect of all of these provisions is to place the Tribunal on notice that wherever possible the Tribunal should promote agreement-making and recognise the primacy of any reasonable agreement reached between the negotiation parties. It needs to be emphasised, however, that the Tribunal is not bound to automatically make a determination in accordance with an agreement reached by the parties. Section 39(4) requires the Tribunal to take that agreement “into account” but not necessarily to make a determination in accordance with its terms. There may be instances where such an agreement is flawed, contrary to public policy, falls outside the jurisdiction of the Tribunal or is contrary to the law – see Moore v Mungeranie (2005) 193 FLR 62 at 77. For example, the Tribunal could not make a consent determination based on an agreement which provided that the native title party was entitled to payments worked out by reference to the amount of profits made, or income derived or things produced (section 38(2)) where those terms became conditions of the determination. The Tribunal has an inherent discretion, when taking an agreement into account, to go beyond it or even not to accept it. However, it is not the role of the Tribunal to “second guess” the negotiation parties. The Tribunal is not vested with the role of evaluating the commercial or other merits of agreements reached by the negotiation parties. The key issue, before making a section 38 consent determination, is that the Tribunal be satisfied of two essential matters. First, that the determination is in accordance with the law, and second, if it is based on the asserted “in principle” agreement of the parties, the “agreement” was properly made.
[34] The Act vests in the persons comprising the applicant, the carriage of a native title determination application – section 62A. As Drummond J said in Ankamuthi People v Queensland (2002) 121 FCR 68 at [8]: “it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of a claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings.” Nonetheless the authority given to the person or persons who comprise the applicant is not open-ended and the relevant person or persons must act in good faith and with the aim of advancing the interests of the claim group. As Keifel J said in Button v Chapman [2003] FCA 861 at [9] the position of an applicant “does not involve a personal right.” It is implicit in the Act that the persons comprising the applicant must act in accordance with the interests and wishes of the members of the claim group. The claim group cannot dictate to the persons comprising the applicant how they carry out their responsibilities, but if an applicant fails to follow the wishes and advance the interests of the claim group there is a process under section 66B enabling replacement of an applicant.
[35] The Act requires that the applicant speak with one voice. When numerous persons have been authorised by the relevant claim group to be the applicant there is an inherent risk that if there is disagreement the decision-making process will be stymied. In the context of the future act regime this can result in an impasse with a claim group being incapable of entering into commercial arrangements with grantee parties.
[36] The Tribunal does not have a charter or legislative head of power to assist a claim group, in the context of a right to negotiate arbitration, which is in gridlock because of internal disputes. In those instances where a section 29 notice is issued but the native title negotiation party is incapable of reaching accord with the government or grantee parties due to internal disputes, the Act provides that the government or grantee party can, after the prescribed 6 month period, make application under section 35 for a section 38 determination. There is no scope for a “consent’ determination in these cases, because it is clear that the native title party is not consenting. It cannot consent if it is internally divided. So, the Tribunal must undertake a proper inquiry and carefully weigh up the section 39 criteria before making a determination.
[37] A “consent” determination is a quite different matter. It is, in effect, the Tribunal using its section 38 powers to enforce the “in principle” agreement of the negotiation parties. Such a power must be exercised carefully and only if the Tribunal is satisfied that the native title party in reality “consents” to that course of action. In determining if the native title party has consented the Tribunal is required to take into account a number of factors. In each case the presiding Member has to weigh up the evidence adduced and make a determination on the particular facts of the matter. Nonetheless, the following matters are of central importance when determining if the native title party is actually “consenting” to the determination, namely whether:
(a) the agreement has been endorsed by the wider claim group either specifically or it is of a type that the claim group has previously given its general consent to; and
(b) the persons comprising the applicant who have not executed the agreement are either not able to be located, have passed away, are suffering from a medical condition which prevents or impedes them from executing an agreement or are refusing to execute the agreement for reasons not related to the terms of the agreement or the process of the claim group that was adopted in endorsing the agreement.
If there is discord within the claim group or between the persons comprising the applicant to the terms of the agreement or the appropriateness of the doing of the future act, then the presiding Member is placed on notice that specific evidence will need to be adduced to demonstrate the appropriateness of making a “consent” determination.
[38] The Tribunal is not bound when making a section 38 determination to be satisfied that a certain proportion of the persons comprising the applicant have signed the agreement. Much will depend on the traditional laws and customs of the native title party. “In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans” – Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 220 ALR 431 at 452/[79]. In such a case, even assuming that (say) nine of ten persons comprising the applicant agree to the doing of the future act, if the dissentient person has family, clan or estate interests over the particular land and waters affected then it could not be said that there is true consent from the native title party. Conversely, if only one of the ten persons comprising the applicant has reached accord and signed a contract with the other negotiating parties, but the remaining nine are either dead or unable to be located and there is no evidence of any disagreement within the claim group over the proposed agreement, then a consent determination may be appropriate. However, if none of the persons who collectively comprise the applicant have either executed or consented to the agreement there is not an accord between the negotiation parties as one of those parties is incapable of reaching agreement. The appropriate course of action in such circumstances would depend on the facts of the case, e.g. whether the persons comprising the applicant have passed away, or, conversely, are not able to be contacted, or are suffering from a medical condition, but are theoretically still capable of discharging their legal responsibility as an applicant. In my opinion, however, one course of action that is not open is a so called “consent” determination. Nor is the Tribunal required to weigh up the reasons why one or more persons who comprise the applicant have refused to endorse the agreement, if those reasons are unrelated to the terms of the agreement in general or, more particularly, the effect of the doing of the future act on the matters outlined in section 39(1)(a).
[39] In short, if a person who is one of those persons comprising the applicant refuses to execute an agreement for personal reasons that are unrelated to the terms of the proposed agreement or the possible impact of the proposed future act on the matters outlined in section 39(1)(a) , then it is open to the Tribunal to work on the assumption that there has been a true accord between the negotiation parties. The Act requires a high duty of care, akin to a fiduciary duty, from persons carrying out the responsibilities of an applicant. It should not be forgotten, that these persons are the primary voice of the claim group in Federal Court proceedings. Authorisation by such persons requires diligence, good faith as well as care and responsibility. Most of all it requires such persons to be the voice of the claim group. Native title is by its very nature communal – see Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 220 ALR 431 at 450/[71] per Wilcox, French and Weinberg JJ. It does not entail empowering people to deviate from the traditional laws and customs of their claim group and advance their own interests. Least of all, it is not intended to allow a recalcitrant applicant to exercise in bad faith a right of veto over commercial negotiations to the detriment of the wider claim group.
[40] In this matter I am satisfied that the wider claim group has previously endorsed agreements in identical terms to the “in principle” agreements negotiated in these matters. Further, I am satisfied that none of the persons collectively comprising the applicant have refused to sign the proposed agreements on relevant grounds. Finally, I am satisfied that the failure of the other previously named persons comprising the applicant to execute the agreements is due to the failure of CLCAC to locate them, despite their best endeavours. In short, the agreements:
(a) have been properly negotiated by the negotiation parties;
(b) are in accord with previous agreements executed by the negotiation parties;
(c) are consistent with the instructions of the claim group;
(d) are identical to agreements previously executed by those persons currently comprising the applicant who in this instance have been unable to be located, or in the case of Mr O’Keefe, has refused to sign;
(e) Mr O’Keefe’s refusal to execute the agreement is for reasons unrelated to the commercial worth of the agreement, the impact of the proposed future act on claim group or the environment of the relevant area or the process adopted in endorsing the agreement; and
(f) throughout the process the claim group was represented by CLCAC who has ostensibly provided competent, professional and objective advice.
[41] Each of the negotiation parties has submitted that the Tribunal should make a determination under section 38 that the proposed future acts be done subject to conditions, those conditions being the terms of the Ancillary Agreements filed with the Tribunal by the native title party.
[42] By letter dated 9 May 2006, the government party further submitted that it is sufficient that any consent determinations refer to the conditions of the Ancillary Agreements as filed in the Tribunal and that the conditions need not be attached to the consent determinations.
[43] The native title party has filed with the Tribunal the ancillary agreements that were negotiated. There were, in fact, two forms of the ancillary agreements executed by persons comprising the applicant of the native title party. The only difference between the two forms was a pagination issue brought about by different formatting. In all other respects the documents are identical.
[44] I have considered the terms of the Ancillary Agreements and consider that they are of a type that can be properly made the subject of conditional determinations pursuant to section 38(1)(c). Further, having considered the submission of the government party of 9 May 2006, I am satisfied that it is appropriate not to require the formal attachment of the terms of the agreement to the body of the determination, but rather refer to their terms.
Determination
By consent, the determination of the Tribunal is that the acts, namely the grant of Exploration Permits (EPM) 15071 and 15073 to Copper Strike Ltd, may be done subject to compliance with the terms of the “Native Title and Heritage Protection Agreement” as filed with the National Native Title Tribunal.
John Sosso
Member
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