Heather Tilberoo and Ors (Birri People)/Activex Limited; Conquest Mining Limited; Global Resources Corporation Limited; Ramelius Resources Limited; Australasia Consolidated Limited/ Queensland - [2012] NNTTA 70

NATIONAL NATIVE TITLE TRIBUNAL

Heather Tilberoo and Ors (Birri People)/Activex Limited; Conquest Mining Limited; Global Resources Corporation Limited; Ramelius Resources Limited; Australasia Consolidated Limited/ Queensland, [2012] NNTTA 70 (26 June 2012)

Applications No: QF12/3, QF12/4, QF12/5, QF12/6, QF12/7

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

- and -

IN THE MATTER of an inquiry into Future Act Determination Application

State of Queensland (government party)

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

(native title party)

- and –

Activex Limited; Conquest Mining Limited; Global Resources Corporation Limited; Ramelius Resources Limited; Australasia Consolidated Limited (grantee parties)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 26 June 2012

Representatives:
Government Party:             Ms Sara Newrick, Department of Natural Resources and Mines
Native Title Party:              Michael Owens, Lawyers and Consultants
Grantee Parties:  Mr Glenn Wright; Ms Kate Ellis; Ms Jannah Hintz; Mr Alan Thompson
Catchwords:     Native title – future acts – inability to finalise agreements -consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth,) ss. 29, 30A, 31, 32, 35, 38, 39, 61, 62A, 75, 77

Cases: Alan Fisher & Ors (Birri People)/Queensland/Activex Limited, Conquest Mining Limited, Global Resources Corporation Limited, [2012] NNTTA 65 (18 June 2012) Deputy President Sosso
Doolan v Native Title Registrar (2007) 158 FCR 233
Foster v Copper Strike Ltd (2006) 200 FLR 182
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Moore v Mungeranie (2005) 193 FLR 62

REASONS FOR FUTURE ACT DETERMINATION

On the dates specified in the attached schedule, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant various Exploration Permits for Mineral to the grantee parties listed in the attached schedule pursuant to the Mineral Resources Act 1989 (Qld).
The notices stated that the Exploration Permits would authorise the grantee parties to explore for minerals for a term not exceeding 5 years with a right to seek a renewal for a further 5 years. The notices also stated that it was proposed to grant the Exploration Permits subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 4, 26 May 2010 and the Native Title Protection Conditions 2, October 2010. The government party further asserted that the grant of the proposed tenements attracted the expedited procedure – s. 29(7).
The proposed tenements are situated within the boundaries of the Birri People registered native title determination application (QUD6244/98) (“the native title party”).
The Birri People native title determination application was entered on the Register of Native Title Claims on 2 April 1998. The persons who collectively comprise the Applicant are Heather Tilberoo, Frank Fisher, Colin McLennan, Alan Fisher, Algon Walsh Jnr., David Miller, Grace Smallwood and a person whose name is withheld for cultural reasons.
A number of status conferences were convened to deal with the expedited procedure objection applications during the course of 2011 and 2012. The Tribunal was informed that the grantee parties and the native title party were engaged in substantive negotiations and were keen to finalise agreements without these matters proceeding to a formal inquiry. It subsequently became clear that, despite the desire of the parties to reach agreement, difficulties within the native title party were impeding efforts to formally execute agreements.
On 14 June 2012 Ms. Sara Newrick, on behalf of the government party, advised the Tribunal of the State’s withdrawal of the assertions of the expedited procedure in relation to EPM 18637, EPM 18568 and EPM 17749 in the following terms:
“Pursuant to section 32(7) of the NTA, the State of Queensland withdraws the assertion in the relevant section 29 notices that the proposal to grant exploration permits for minerals listed above are future acts attracting the expedited procedure. This withdrawal does not apply to other future acts which may be listed in those notices, and is done on the basis that application for determinations of the kind prescribed in section 38 of the NTA will be made on behalf of the native title party with the co-operation of the grantee parties.”
As a consequence of the government party’s withdrawal of the assertions of the expedited procedure, the Tribunal no longer had jurisdiction to proceed. Accordingly, on 18 June 2012 I dismissed these three expedited procedure objection applications – Alan Fisher & Ors (Birri People)/Queensland/Activex Limited, Conquest Mining Limited, Global Resources Corporation Limited, [2012] NNTTA 65 (18 June 2012).
On 19 June 2012, the native title party withdrew its expedited procedure applications in relation to EPM 18805 and EPM 18986. As a result of these withdrawals the Tribunal no longer had jurisdiction to proceed with respect to these matters.
On 14 June 2012 Mr Michael Owens, Lawyer and Consultant, legal representative of the native title party, lodged with the Tribunal, pursuant to ss. 35 and 75, future act determination applications in relation to each of the proposed tenements. The applications were made more than six months after the various notification days thereby satisfying the requirement of s. 35(1)(a).
I was appointed the Member to conduct the future act determination inquiries on 18 June 2012, and accepted the future act determination applications (s. 77) on the same day.
The following information was set out in each of the future act determination applications:
“The Native Title Party and the Grantee Party have negotiated and reached an agreement which the Native Title Party consider is sufficient to minimize the impact on their native title rights and interests and protect the cultural heritage of the Native Title Party over the area of the tenement.
Other than Heather Tilberoo, all of the Birri Registered Native Title Claimants have executed the Agreement.
All parties to the Agreement consent 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, where those conditions are the terms of the Ancillary Agreement reached between the Grantee Party and the Native Title Party.”
On 19 June 2012 Mr. Doug Young, the Managing Director of Activex Llimited, wrote to the Tribunal in the following terms:
“I can confirm that ActivEX Limited has reached an agreement with the Birri People for EPM 18637, and the Ancillary Agreement was signed by ActivEX Limited on the 23^rd February 2012.
As we have been advised that the agreement cannot be signed in full by the Birri People, ActivEX Limited agrees for this matter to proceed to a future act determination.”
Mr. Owens attached to the Form 5 a copy of the draft Exploration Agreement between the native title party and Activex Limited. The Exploration Agreement was executed by all living persons comprising the Birri Applicant other than Ms. Tilberoo.
A preliminary conference was convened on 20 June 2012, and each of the parties participated other than Mr. Thompson who represents Ramelius Resources Limited and Australasia Consolidated Limited. Mr. Thompson emailed Ms. Newrick on 19 June 2012 as follows: “This email is to give notice that in regard to Ramelius Resources Limited – EPM18805 and Australasia Consolidated Limited – EPM18986, the applicants consent to the FADA’s filed and the matters proceeding to consent determination.” Ms. Newrick provided the Tribunal with a copy of Mr. Thompson’s email prior to the 20 June 2012 preliminary conference.
During that conference Directions were made requiring the government party to provide contentions by 22 June 2012 with the native title party and grantee parties were at liberty to reply to any material provided by 25 June 2012.
On 22 June 2012 Ms. Newrick, on behalf of the government party, lodged Contentions to the Tribunal in the following terms:
“This letter is provided pursuant to paragraph 1 of the directions set by Deputy President Sosso on 20 June 2012 in relation to the following matters: ....
In each of these matters, a Future Act Determination Application has been lodged on behalf of the Birri People. The State has been advised by the representatives of the native title party and each of the grantee parties in these matters that an agreement has been reached in relation to the grant of each of the tenements, and the State has been provided with copies of these agreements and subsequently provided copies of the agreements to the Tribunal on 20 June 2012. In the case of QF12/4, the native title party’s representative provided a copy of the agreement to the Tribunal on 22 June 2012. The State has also been provided with copies of the affidavits of Michael John Owens in each of these matters, dated 13 June 2012.
The State accepts Mr Owens’ assertion that the agreements between the Birri People and the grantee parties in the above matters have not been fully executed due to one of the registered claimants on behalf of the Birri People lacking capacity to sign the agreements, and that this reason is unrelated to the terms of the agreements.
The State consents to the Tribunal making a determination pursuant to section 38(1)(c) of the Native Title Act 1993 (Cth) that the future acts may be done subject to compliance with the terms and conditions of the relevant agreements between the native title party and the grantee parties as filed with the Tribunal on 20 June 2012, aside from QF12/4, where the agreement was filed with the Tribunal on 22 June 2012.”
As indicated above, Mr. Thompson has provided written advice of the consent of his client’s to the making of a consent determination. Mr. Owens attached to his affidavit of 13 June 2012 a copy of the proposed agreement with both grantee parties. In both instances the proposed agreements have been executed by all of the living persons comprising the Applicant other than Ms. Tilberoo.
Mr. Owens also annexed to the various future act determination applications an Affidavit sworn on 13 June 2012. Mr. Owens deposed to having known Ms. Tilberoo for more than a decade, and having had a very close personal relationship with her over that time. He further deposed that over the past three to four years there has been a gradual deterioration in Ms. Tilberoo’s health, such that in the past two years it has been obvious that she has developed dementia and has become incapable of carrying out the duties of an Applicant. The Affidavit sets out this state of affairs in much detail which I need not quote or set out at any length. Suffice it to say, the material satisfies me that Ms. Tilberoo is incapable of undertaking the duties of an Applicant and, as a result, was unable to execute the various Exploration Agreements currently before the Tribunal.
On 25 June 2012 Ms. Jannah Hintz on behalf of Global Resources Corporation Limited wrote to Ms. Mlynarik of the Tribunal in the following terms:
“The purpose of this letter is to notify you that Global Resources Corporation Limited, the Grantee Party, has given instructions to:
·Agree to the State’s withdrawal of expedited procedure assertion on 14 June 2012 and statement of contentions outlined in correspondence to the Tribunal, dated 22 June 2012;
·Agree to Mr. Owen’s submissions made on behalf of the Birri People in his Form 5 Future Act Determination Application, dated 15 June 2012, and in particular para . 14;and
·Agree to the Tribunal making a consent determination pursuant to s 38(1)(c) of the Native Title Act 1993 (Cth) (NTA), that the grant of EPM17749 may proceed subject to conditions of the relevant agreements.”
Mr Owens attached to his Form 5 for EPM 17749 a copy of the proposed agreement with Global Resources Corporation Limited. The proposed agreement had been executed by all living persons comprising the Applicant other than Ms. Tilberoo.
On 21 June 2012 Mr. Wright, representing Conquest Mining Limited, wrote to the Tribunal advising of an issue that had arisen following the preliminary conference:
“I had hoped to provide my formal consent to the application on behalf of the Birri People for the present FADA. As indicated yesterday however to the Deputy President, I had not seen some of the material provided to the Tribunal....
Unfortunately, after perusing the relevant documentation last night, I have realised that the proposed Exploration Agreement (containing the relevant terms and conditions) is not what I believe to be the same Exploration Agreement agreed to by the grantee party in the course of negotiations. Accordingly, at the present time, I am not in a position to provide my formal consent given this issue.
Mr Owens and myself have communicated urgently with respect to the above to attempt to resolve these issues...”
In response to these concerns, Mr. Owens wrote to the Tribunal on 22 June 2012 in the following terms:
“The problem about which version of the agreement reached between the Native Title Party and the Grantee Party has been resolved.
It would appear that I may have annexed the wrong signed version of the agreement to my Affidavit.
The Word Version of the correct version is attached.
However, it is unsigned.
I am unable to get a signed version to you in the near future as I am not in Townsville and will not be returning there until 24 July 2012.
There is a Birri meeting in Bne on Monday at which all of the Applicants might be present.
However as you are aware, two of them are quite ill and one has a habit of regularly not attending all meetings of the RNTC.
I am aware that the attached version is acceptable to the Birri RNTC.
In the circumstances, I have received instructions from the Birri RNTC this morning to consent to Directions to being made pursuant to section 38(1)(c) of the Native Title Act 1993 (Cth) that the future act may be done subject to conditions, where those conditions are the terms of the Agreement attached to this email as evidence of the agreement reached between the Grantee Party and the Native Title Party.
Given that I have instructions to act for the Birri People, and as such I am able to give their consent on their behalf, I believe the Tribunal is able to proceed to make the proposed Directions.”
Later that day Mr. Wright wrote to the Tribunal referring to Mr. Owens letter and, inter alia, said: “The grantee party consents to a determination in the same terms as noted by Mr Owens below...”
Having regard to this unexpected chain of events, I asked Ms. Mlynarik to write to Mr. Wright and Mr. Owens seeking information on the nature of the differences between the two proposed agreements. Ms. Mlynarik contacted both gentlemen on 22 June 2012, and Mr. Wright responded on the same day attaching copies of the agreements and an full explanation of the differences. The substantive differences related only to a cap on legal fees in clause 24 and some changes to certain fees in Schedule 2. Apart from those changes the 31 pages of both Exploration Agreements were the same.
When a party has applied to the Tribunal for a future act determination pursuant to s. 38, the Tribunal must either make a determination that the act be done unconditionally or subject to conditions to be complied with by any of the parties or that the act must not be done. In making such a determination, the Tribunal is required to take into account the criteria set out in s. 39. Of importance in this regard is s. 39(4) which provides:
“(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.”
Over a number years the Tribunal has made future act consent determinations as a means of giving effect to agreements that have been reached following negotiations pursuant to s. 31(1)(b). Such determinations have been made when it is clear that agreement in principle has been reached by the negotiation parties, but not all of the signatures of the persons collectively comprising the Applicant can be obtained. The reasons for the failure to obtain all of the signatures are many. In some cases it can be due to the death of a person or persons, in others due to illness and incapacity and in some cases due to remoteness and events beyond the control of the relevant person or persons. In some instances one or more of the persons comprising the Applicant may be travelling or otherwise cannot be located or communicated with. For whatever reason there is one common thread linking these circumstances i.e. the failure of the person or persons to execute the relevant agreement is not as a result of that person or persons objecting to the actual terms of the agreement.
Another scenario which often occurs is when the person or persons not signing an agreement are in good health, can be located but refuse to sign as a matter of principle. Sometimes, due to disputes within the broader claim group, one or more of the persons partially comprising the Applicant will refuse to execute any further documents. If this refusal is not related to the terms of the agreement, or the manner in which the agreement was negotiated, but relates to issues concerning the claim group as a whole, the Tribunal has usually been prepared to make a consent determination.
The Tribunal has however, usually declined to make a consent determination when it is clear that one or more persons comprising the Applicant have refused to execute an agreement because they oppose either the making of the agreement, or the terms of the agreement or the manner in which the agreement was negotiated. In such cases the Tribunal has formed the view that there is not in reality, an agreement within the terms of s. 39(4) that can be relied upon. Examples of where the Tribunal has been prepared to make consent determinations are set out in Moore v Mungeranie (2005) 193 FLR 62 at [64]/79-80.
The legal basis for the making of consent determinations was set out by the Tribunal in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361. Deputy President Sumner referred to ss. 39(1)(f), 39(4) and 109(1) as factors which led him to conclude that the Tribunal had power to make a s. 38 determination by consent. On the key question of making such a determination when not all of the persons comprising the Applicant have given their consent, he said (370):
“In Placer (Granny Smith) Pty Ltd v Western Australia the Tribunal made a determination even though one of the 12 registered native title claimants did not consent. The Tribunal decided that a ‘native title party’ is not each registered native title claimant on the same claim but is the registered native title claimants acting collectively as representatives and agents for the claim group (s 62A of the Native Title Act) and that each registered native title claimant is not entitled to separate representation in a right to negotiate inquiry: Placer (Granny Smith) Pty Ltd v Western Australia (at 5-11). It also follows from this decision that the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision-making processes of the native title claim group.”

As Deputy President Sumner emphasises, when determining whether to make a consent determination, the Tribunal places particular regard on whether the negotiation parties are legally represented. As was pointed out in Moore v Mungeranie (2005) 193 FLR 62 at [58]/77:
“When the negotiation parties, in particular the native title and grantee parties, are legally represented the Tribunal is able to rely on the assurances and undertakings of the legal practitioners. Furthermore, the Tribunal is able to proceed on the initial assumption, that there has been some parity of bargaining power in the negotiations, and that the parties have entered into any agreement on the basis of competent legal advice. In short, the Tribunal can take some comfort that the negotiation parties have reached an accord upon a foundation of proper advice and due consideration. This assumption of course can be displaced, but having legally represented parties is a sound starting point.”
The Tribunal has emphasised on a number of occasions that it will, having regard to these principles, seek to facilitate the effectuation of “in principle” agreements reached by the negotiation parties. However, the Tribunal has no legislative basis to make a “consent” determination when the Applicant is in gridlock because of internal disputes. There can be no basis for making a “consent” determination if a claim group, and the Applicant of that claim group, is internally divided. In such circumstances there cannot be said to be an “in principle” agreement, because the condition precedent for the formation of such an agreement is lacking – see Foster v Copper Strike Ltd (2006) 200 FLR 182 at [36]/192.
It is clear from the material presented to the Tribunal that despite agreement being reached in principle between the native title party and the grantee parties, other than the grantee party represented by Mr. Wright, the inability of Ms. Tilberoo to execute the various Exploration Agreements has prevented the conclusion of those matters. The following key matters are apparent from the material before the Tribunal
(a)the draft Exploration Agreements between the native title party and the various grantee parties have been provided to the Tribunal;
(b)in each case the original Agreement was executed by all living persons comprising the Applicant of the native title party, other than Ms. Tilberoo;
(c)I have perused the proposed Exploration Agreements and they appear to provide terms and conditions that are favourable to the native title party;
(d)the failure of Ms. Tilberoo to execute the Exploration Agreements is unrelated to the terms of the Agreements or dissatisfaction with the terms of the various Agreements;
(e)the native title party is legally represented, and has had the benefit of professional legal advice throughout this process;
(f) the grantee parties consent to the Tribunal making a consent determination; and
(g)the government party has been closely involved in this process and is satisfied that there is a proper legal basis for the Tribunal making a consent determination.
This leaves for separate consideration the nature of the “agreement” reached between the native title party and Conquest Mining Limited.
It is not the normal practice of the Tribunal to make a consent determination other than where the Tribunal has before it a document executed by all those persons collectively comprising the Applicant who are “willing and able to act” per Spender J Doolan v Native Title Registrar (2007) 158 FCR 56 at [57].
In the absence of such a document it would normally be difficult for the Tribunal to be able to form a considered view that the native title party had in fact actually reached an agreement with the relevant grantee party. The exercise of the Tribunal’s consent determination powers must invariably be predicated on the fact that the parties have reached agreement as envisaged by s. 39(4) but are unable to conclude that accord. The absence of partially executed documentation renders difficult, but not impossible, the formation of a view by the Tribunal that the circumstances envisaged by s. 39(4) have, in fact, eventuated.
In this matter the following material is before the Tribunal:

(a)correspondence from both the relevant grantee party and native title party confirming that the unsigned Exploration Agreement, is in fact the agreement that was negotiated;
(b)confirmation from Mr. Owens that the Applicant has agreed to terms of this document;
(c)confirmation from Mr. Owens that the Applicant request that the Tribunal make a consent determination;
(d)the slight differences from the Exploration Agreement as originally executed by the Applicant other than Ms. Tilberoo and the unsigned Exploration Agreement before the Tribunal.

The Tribunal also has the comfort of having undisputed material from Mr Owens that the signed version of the Exploration Agreement was attached in error and that the later and actual Exploration Agreement is the unsigned version. While this is a less than ideal situation, I have formed the view that the above circumstances provide a sufficient factual basis for the making of a consent determination.

Determination

By consent, the determination of the Tribunal is that the acts, namely the grant of various Exploration Permits for Mineral as detailed in the attached schedule, may be done subject to compliance with the terms and conditions of the Exploration Agreements attached to the future act determination applications lodged by the native title party, other than in the case of Conquest Mining Limited, where the relevant agreement is the unsigned Exploration Agreement as provided to the Tribunal by Mr. Owens on 22 June 2012.

John Sosso

Deputy President

SCHEDULE – DETERMINATION [2012] NNTTA ## (## June 2012)

Tenement EPM	Government Party Notification	Notification Day s 29(4)(a)	Future Act Application Lodged	Future Act Application No.	Member Appointed	Grantee Party	Native Title Party & Application No.
18637	30/11/2010	05/01/2011	14/06/2012	QF12/3	18/06/2012	Activex Limited	Ms Grace Smallwood, Mr Allan Fisher, Mrs Heather Tilberoo, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, & Anor on behalf of the Birri People (QC98/12)
18568	16/02/2011	16/03/2011	14/06/2012	QF12/4	18/06/2012	Conquest Mining Limited	Ms Grace Smallwood, Mr Allan Fisher, Mrs Heather Tilberoo, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, & Anor on behalf of the Birri People (QC98/12)
17749	02/06/2011	06/07/2011	14/06/2012	QF12/5	18/06/2012	Global Resources Corporation Limited	Ms Grace Smallwood, Mr Allan Fisher, Mrs Heather Tilberoo, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, & Anor on behalf of the Birri People (QC98/12)
18805	24/06/2011	20/07/2011	14/06/2012	QF12/6	18/06/2012	Ramelius Resources Limited	Ms Grace Smallwood, Mr Allan Fisher, Mrs Heather Tilberoo, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, & Anor on behalf of the Birri People (QC98/12)
18986	07/09/2011	28/09/2011	14/06/2012	QF12/7	18/06/2012	Australasia Consolidated Limited	Ms Grace Smallwood, Mr Allan Fisher, Mrs Heather Tilberoo, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, & Anor on behalf of the Birri People (QC98/12)