James Taylor & Ors (Kalkadoon)/Queensland/Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed) - [2004] NNTTA 80

NATIONAL NATIVE TITLE TRIBUNAL

James Taylor & Ors (Kalkadoon)/Queensland/Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed), [2004] NNTTA 80 (7 September 2004)

Application No: QF04/01

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

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IN THE MATTER of an inquiry into a Future Act Determination Application

James Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Pat Kyle, and Sonny Condren on behalf of the Kalkadoon People (native title party)

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The State of Queensland (government party)

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Freehold Mining Limited and
Western Metals Copper Limited (Receivers and Managers Appointed) (grantee party)

FUTURE ACT DETERMINATION

Tribunal:        John Sosso
Place:              Brisbane
Date:              7 September 2004

Catchwords: Native Title – future act – proposed addition of excluded land into an exploration permit-mineral – expedited procedure objection application – consent determination that the act may be done.

Hearing Dates: 18 June 2004; 13 August 2004

Representatives -

Native title party: Ms Helen Tait, Carpentaria Land Council
Government party: Mr Rod Beausang, Department of Natural Resources, Mines & Energy

Grantee party: Mr Russell Hetherington (Freehold Mining Limited)
Legislation: Native Title Act 1993 (Cth) ss 29, 31, 32, 35, 38, 39, 75

Mineral Resources Act 1989 (Qld) ss 151, 176A

Cases: Brownley v Western Australia (No 1) (1999) 95 FCR 152

Evans v Western Australia (1997) 77 FCR 193
Minister for Mines (Western Australia)/Evans/Townson Holdings NL
[1998] NNTTA 15 (11 December 1998), Member Sumner
Monkey Mia Dolphin Resort v Western Australia (2001) 164 FLR 361
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87
Risk v Williamson (1998) 87 FCR 202
Walley v Western Australia (1996) 67 FCR 366

REASONS FOR FUTURE ACT DETERMINATION

[1] On 28 January 2004, the government party gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to approve an application to add excluded land into Exploration Permit for Mineral (“EPM”) 10313 (“the exploration tenement”) to Western Metals Copper Limited (Receivers and Managers appointed) and Freehold Mining Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

The exploration tenement is located approximately 140 kilometres north of Mount Isa, and lies immediately north of Gunpowder. The area of the excluded land is 232 square kilometres, and comprises some 72 sub-blocks. Exploration permits in Queensland are described by the name of the Block identification map and the number of Blocks the application covers. Each block is approximately 80 square kilometres in area, and each block is divided into 25 sub-blocks. The approximate area of each sub-block is 3 square kilometres.
The proposed tenement was originally granted on 17 October 1994 and included the following condition: “Land subject to native title is excluded from the grant of the Exploration Permit.” Subsequently the holders of EPM 10313 made application under section 176A of the Mineral Resources Act 1994 (Qld) to have that excluded land added to the exploration tenement. The addition of excluded land into an exploration permit authorizes the holder of the permit to explore for minerals on the previously excluded land for the current term of the exploration permit and to seek renewals for a term not exceeding five years.
The section 29 notice also stated that it was proposed that the addition of the excluded land be subject to the General Conditions Version 1 (1 October 2003) and the Native Title Protection Conditions Version 1.1(a) (22 August 2003), or such other Native Title Protection Conditions which might otherwise be agreed with any native title party.
Section 176A provides as follows:
“Application to add excluded land to existing permit
176A (1) The holder of an exploration permit (the “existing permit”) may apply to the Minister to add excluded land to the existing permit.
(2) The provisions of this part apply, with necessary changes, to an application under                subsection (1) as if it were an application under section 133.
(3) Without limiting subsection (2), in deciding the application, the Minister may –
(a) impose conditions under section 141(1)(j) in addition to any conditions that apply under the existing permit; and
(b) fix an amount of security to be deposited under section 144 in addition to any   security for the existing permit.
(4) On the granting of the application, the excluded land is included in the existing permit.
(5) In this section –
‘excluded land’ means land that was the subject of a specific exclusion when the             existing permit was granted or that was taken to be excluded under section 132.”

[6] On 28 May 2004, James Taylor, Ethel Page, Thelma Sullivan, Richard Percy, Connie Craigie, Patricia Kyle, and Sonny Condren on behalf of the Kalkadoon People (Federal Court Q6031/99) (“the native title party”), lodged with the Tribunal an expedited procedure objection application, pursuant to section 32(3). Those persons are jointly the registered native title claimant for the area and they are the appropriate people to make an expedited procedure objection application – section 75.

The Kalkadoon People filed their native title determination application (Q6031/99) on 19 March 1999. It was accepted for registration on 19 November 1999 and remains on the Register of Native Title Claims. The registered claim covers approximately 92 per cent of the area subject to the section 29 notice.
As previously mentioned, the holder of the exploration tenement when application was made under s176A, was Western Metals Cooper Limited (60%) and Freehold Mining Limited (40%). The section 29 notice specifically stated that the holders of the exploration tenement intended to apply to the Minister for Natural Resources and Mines under section 151 of the Mineral Resources Act 1989 for approval to assign the interest of Western Metals Copper Limited to Freehold Mining Limited. Section 151 empowers the Minister to approve an assignment provided that, in the case of an exploration permit held by two or more holders, the application must be made by all the holders – s151(2). Further, an assignment cannot be made in respect to part only of an exploration permit – s151(7).
On 22 July 2003 Mr D L McEvoy of PricewaterhouseCoopers was appointed as Receiver and Manger of Western Metals Copper Limited. Pursuant to the Mt Oxide Joint Venture Sale and Purchase Agreement dated 12 January 2004, Western Metals Copper Limited assigned all its legal and equitable rights, title and interest in the exploration tenement to Freehold Mining Limited. On 23 April 2004 the Minister for Natural Resources and Mines, pursuant to section 151, approved the assignment and accordingly, Freehold Mining Limited is currently the holder of all interests in the exploration tenement.
On 31 December 2003 Freehold Mining Limited concluded an agreement with the native tile party. On 23 June 2004 the then legal representative of the native title party (Mr Sean Sexton) wrote to the Tribunal in the following terms: “(the agreement) addresses the substance of the ‘Native title Protection Conditions’ as defined by the MRA. The Kalkadoon Native Title Claim Group are satisfied that the terms of this Agreement addresses the requirements of the NTA and puts in place procedures to ensure the interests of the Kalkadoon Native Title Claim Group are adequately accounted for.”
For the purposes of this determination, the 31 December 2003 agreement will be referred to as the “ancillary agreement”. Ancillary agreements are a common feature of the future act jurisdiction and are usually executed by the native title and grantee parties, but not by the government party. As distinct from the ancillary agreement, there is another agreement which the government party is a party to; this agreement is referred to as the “section 31 agreement”. Section 31 agreements are those which are entered into, following good faith negotiations, that allow the doing of the future act, either conditionally or unconditionally – s31(1). While section 31 agreements can be relatively straightforward, the ancillary agreements often contain detailed provisions that govern the relationship of the grantee party and the native title party for the doing of the future act.
Unfortunately, even though all of the parties had reached an amicable and, to their minds, satisfactory outcome, an issue arose which has caused this matter to become much more complicated and protracted.
It has been the position of the government party that an application under section 176A cannot be assigned pursuant to s151 of the Mineral Resources Act 1989. In short, the assignment of an interest in a tenement does not result in an assignment of the Application under section 176A. Consequently, the government party has stated that despite Freehold Mining Limited now holding a 100% interest in the exploration tenement, for the purpose of the right to negotiate process under the Native Title Act 1993, the grantee party remains Freehold Mining Limited and Western Metals Copper Limited. Accordingly the government party contends that Western Metals Copper Limited must be a party to any section 31 agreement executed by the State of Queensland, and in the absence of Western Metals Cooper Limited the State will not execute any agreement reached between Freehold Mining Limited and the native title party.
Whilst that may be the position of the government party, the Receiver and Manager of Western Metals Copper Limited has approached the matter from a different perspective. The Receiver and Manager, while prepared to consent to various determinations by the Tribunal (which are dealt with hereunder) has not been prepared to acknowledge or assume ownership or any interest in the exploration tenement. In short, following the s151 assignment, the Receiver and Manager has not been prepared to become a party to a section 31 agreement. In these circumstances, a stalemate resulted.
In an endeavour to break this deadlock, it was first submitted that each of the parties would consent that I determine that the expedited procedure applied. However, what the parties actually wanted was a determination of a type that is not contemplated by section 32 of the Native Title Act 1993. A Member holding an inquiry into whether a future act attracts the expedited procedure has only a very limited jurisdiction. The only question the Tribunal determines is whether the future act attracts or does not attract the expedited procedure after considering the criteria outlined in section 237. There is no power to make a conditional finding or to require parties to do certain things. An expedited procedure inquiry is relatively straightforward and the central issue is resolved either by a negative or positive decision on the one issue, namely whether the act notified in the section 29 notice attracts the expedited procedure.
Having failed to break the stalemate by this approach, the parties have adopted a different approach.
The government party, firstly, withdrew its statement under section 29(7) that the application to add excluded land into the exploration tenement attracted the expedited procedure. When there is not an assertion by a government party that a proposed future act attracts the expedited procedure, the normal right to negotiate in good faith procedure comes into play.
The government party simultaneously made application under section 35 for the Tribunal to make a determination under section 38. Any negotiation party can make such an application provided two preliminary matters are satisfied. The first is that more than 6 months has passed since the notification day. In this case the notification day was 28 January 2004 and, accordingly, more than 6 months has elapsed. The second is that a section 31 agreement has not been made. As the above recounting of the facts of this matter highlights, no formal execution of a section 31 agreement has been possible due to the divergent positions of the government party and the Receiver and Manager of Western Metals Copper Limited.
There is a further pre-condition for the Tribunal making a section 38 determination, namely that the parties have negotiated in good faith. The duty to negotiate in good faith by the negotiation parties (to all intents and purposes, the government and grantee parties – s36(2)) is a condition precedent to the Tribunal determining whether the future act can be done, and if so either with or without conditions – Walley v Western Australia (1996) 67 FCR 366 at 377 per Carr J, Risk v Williamson (1998) 87 FCR 202 at 208 per O’Loughlin J and Brownley v Western Australia (No 1) (1999) 95 FCR 152 per Lee J.
However, as Carr J recognised (at 378) in the first of the cases establishing this principle: “Where that matter (i.e. whether the parties have negotiated in good faith) is not in contention, the tribunal may be content to accept the parties’ confirmation that the government party has negotiated in good faith.” Some care has to be taken in relying on this finding as it was made prior to the 1998 amendments to the Native Title Act 1993. Following those amendments, the obligation to negotiate in good faith is imposed on each of the negotiating parties, and not just the government party – s31(1)(b). Further, section 36(2) now provides: “If any negotiating party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make a determination on the application.” The clear wording of section 36(2) places the onus on the negotiating party alleging lack of good faith to formally raise that issue and an evidential burden to satisfy the Tribunal by adducing evidence to substantiate that assertion – see also Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 at 93 per Member Sumner.
The general principle underpinning Tribunal inquiries is that in the absence of any of the negotiating parties formally raising the issue of good faith, there is a presumption created by section 36(2) that there have been, in fact, good faith negotiations. Indeed, even if there was some uncertainty about the negotiations this would not constitute an impediment to a Tribunal Member making a section 38 Determination. Insofar as an assertion of a failure to negotiate in good faith is akin to a jurisdictional challenge, and having regard to the clear wording of section 36(2), the Tribunal must be satisfied on the basis of evidence led that it lacks jurisdiction to make a Determination because of the failure to negotiate in good faith by either the government or grantee party. It would be quite extraordinary in the absence of any party raising this issue that the Tribunal would itself do anything else but proceed and make a Determination. That is not to say that if the Tribunal had material before it that it could not raise the issue despite the silence of the negotiating parties – see Placer (Granny Smith) Pty Ltd v Western Australia at 93 – but this would only occur if the interests of justice manifestly demanded it.
In this matter as none of the negotiating parties has raised the good faith issue I have proceeded on the basis that the parties have negotiated in good faith and there is no impediment to the Tribunal making a Determination.
Carpentaria Land Council Aboriginal Corporation forwarded to the Tribunal a Consent document signed by the registered claimants. That document which is headed “Consent in the National Native Title Tribunal about the grant of an application under section 176A to include excluded land into Exploration Permit for Minerals Number 10313” provides as follows:
“The Kalkadoon Native Title Group consent in the National Native Title Tribunal (‘NNYY’) to all the parties involved to a determination under Section 39 of the Native Title Act 1993 Cth (‘NTA’) that the grant of an application under section 176A to include excluded land into Exploration Permit for Minerals Number 10313 (the Application under Section 176A) under the Mineral Resources Act 1989 (‘MRA’) by Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed) may be done. The Native Title Protection Conditions under the MRA will not be imposed on the grant under section 176A because the Kalkadoon Native Title Group is satisfied the Ancillary Agreement with Freehold Mining Limited properly addresses Native Title issues.”

Correspondence was also forwarded to the Tribunal by Mr. McEvoy, the Receiver and Manager of Western Metals Copper Limited and from Freehold Mining Limited consenting to a Determination of the Tribunal that the future act in question may be done.
Mr R Beausang, on behalf of the State of Queensland, wrote to the Tribunal on 27 August 2004 and, inter alia, made the following submissions:
“the State of Queensland seeks determination by consent by the NNTT, pursuant to section 38 of the NTA, that the future act, namely, the grant of the Application under Section 176A without conditions, to include excluded land into the Exploration Permit for Minerals Number 10313 under the MRA by Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed), may be done. The Native Title Protection Conditions under the MRA will not be imposed on the grant under section 176A because the Native Title Parties are satisfied the Ancillary Agreement with Freehold Mining Limited properly addresses Native Title Issues.”

The Tribunal, therefore, has before it the consent by each of the negotiation parties for a Determination that the future act may be done without the imposition of conditions.
The principles that apply to the making of consent determinations were usefully summed up by Member Sumner (as he then was) in Minister for Mines (Western Australia)/Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998) (at p.4):
“It could be argued that in these circumstances it is not within the power of the Tribunal to make a determination by consent of the parties which did not involve it in a consideration of the matter listed in section 39.
In my view there are a number of compelling reasons for concluding that it is within the power of the Tribunal to make any one of the specified determinations with the consent of the parties. Firstly, the parties are given an important role in the right to negotiate inquiries (see Western Australia v Thomas 133 FLR 124 at 154-163). Secondly, s 109(1) says that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. It would be inconsistent with the requirements of this section for the Tribunal to be required to conduct an inquiry and to obtain evidence when the parties have agreed to a consent determination. This is reinforced by the Tribunal’s view that in ordinary circumstances it will be for the parties to produce evidence to it and that it is not normally required to seek out its own evidence about matters in s 39.
Thirdly, s 39(1)(f) requires the Tribunal to take into account any matter that the Tribunal considers relevant. In the absence of evidence from any of the parties on the other criteria, the Tribunal can regard as relevant the fact that the parties have agreed to a consent determination and its terms. A relevant matter is the absence of evidence presented by the parties on the other matters referred to in s 39 and their consent to a determination.”

More recently Deputy President Sumner authoritatively set out the approach of the Tribunal to consent determinations in Monkey Mia Dolphin Resort v Western Australia (2001) 164 FLR 361 at 368-371. I adopt, for the purposes of this inquiry, the principles outlined by Deputy President Sumner.

The criteria for making determinations are set out in section 39. Of primary importance, however, is section 39(4). This subsection specifically requires the Tribunal, before making its determination, to ascertain if the negotiating parties have agreed on issues, and to take that agreement into account in making its Determination. In particular, the Tribunal is not required, to take into account the criteria outlined in section 39(1), to the extent that the negotiation parties have agreed on particular issues.
Clearly the policy objective behind section 39(4) is that, absent any compelling reason to the contrary, where the negotiation parties have reached an agreement, that agreement should form the basis of any determination the Tribunal makes under section 38. There are numerous instances where the Tribunal has sought further information from the parties about issues prior to making a consent determination. This is particularly the case where one or more of the parties is not legally represented, or where there are divisions within the native title party. The underpinning objective, nonetheless, motivating the Tribunal is that it must be satisfied that the agreement has been made with full knowledge and with the full authority of the parties.
In this matter I am satisfied that the agreement reached has been made with the full knowledge and full authority of the parties. There is no need for the Tribunal, then, to engage in an exercise of weighing up the various criteria outlined in section 39(1). There are however two factors I have particularly taken into account. The first is that the Act has manifested a clear preference in numerous provisions for future act parties to reach a negotiated outcome rather than have the Tribunal impose non-consent determinations. As far as is practicable and convenient, the Tribunal will encourage consent outcomes and will make consent determinations. The “right to negotiate” process offers one of the few real and practical benefits to native title holders and such a process creates a platform for ongoing good will and dealings with both government and grantee parties. The second issue I have taken into account is that the grant of the exploration tenement will have “the effect of contributing to on-going exploration activities essential to the health of the mining industry and to the economy” – Evans v Western Australia (1997) 77 FCR 193 at 215 per R D Nicholson J. The proposed tenement lies in the North-West mineral province of Queensland. This is a highly prospective area of Queensland and has been the subject of most of the initial section 29 notices issued by the State of Queensland. Facilitating agreements reached by negotiation parties to allow for mineral exploration in this region is not only in the immediate interests of the negotiation parties, but in the wider public interest, and would be a matter that could be taken into account pursuant to section 39(1)(e) and (f) in the event that a weighing exercise was required pursuant to section 39(1).

Decision

By consent, the determination of the Tribunal is that the act, namely the approval to add excluded land into Exploration permit for Mineral 10313 to Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed) may be done pursuant to section 38 of the Native Title Act1993 (Cth).

John Sosso
Member