Mark Albury & Ors (Karingbal #2)/Ome Resources Australia Pty Ltd/Queensland - [2013] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Mark Albury & Ors (Karingbal #2)/OME Resources Australia Pty Ltd/Queensland, [2013] NNTTA 13 (11 February 2013)

Application No: QF2012/0012

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

and

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

Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha, Carol McLeod & Anor on behalf of Karingbal #2 (native title party)

- and -

OME Resources Australia Pty Ltd (grantee party)

- and -

State of Queensland (Government party)

FUTURE ACT DETERMINATION

Tribunal: Graeme Neate

Place: Brisbane
Date: 11 February 2013

Hearing Date: 15 October 2012

Representatives:

Native title party: Mr William Redmond and Ms Kelly Thomas-Greer, Redmond & Redmond

Grantee party: Mr William Oxby and Ms Andrea Conn, Herbert Smith Freehills

Government party: Ms Sara Newrick, Department of Natural Resources and Mines

Catchwords: Native title – future act – proposed grant of Authority to Prospect – Ancillary Agreement with grantee party signed by all persons who are the applicant to registered native title claim – Ancillary Agreement in escrow while two persons who are part of the applicant sought separate legal advice – future act determination application – whether already an agreement of the kind mentioned in s 31(1)(b) – whether appropriate for a consent determination – s 39 criteria – determination that the act may be done subject to conditions.

Legislation: Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 28

Environmental Protection Act 1994 (Qld)
Native Title Act 1993 (Cth) Preamble, ss 24MD, 29, 30A, 31, 35, 36, 36A, 37, 38, 39, 41, 41A, 73, 76, 77, 109, 146, 151, 154, 155, 162, 164, 178, 227, 238, 253
Petroleum and Gas (Production and Safety) Act 2004 (Qld)

Cases:Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Selwyn James Appo & Ors (Port Curtis Coral Coast); Alan Douglas Hatfield       & Ors (DarumbalPeople)/Pacific Fertilisers and Chemicals Pty Ltd/Queensland, [2011] NNTTA 190
Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State       of Queensland, [2006] NNTTA 3
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council   Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3),   Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales, [2013]                    NNTTA 2
Crowe v Western Australia (2008) 218 FLR 429
Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of      the Bathurst, Lithgow, Mudgee area, [2009] NNTTA 137
Richard Doyle & Ors (Iman People #2)/Mining Investments One Pty Ltd; Aard Metals Limited/Queensland, [2012] NNTTA 7
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri   People)/State of Queensland, [2012] NNTTA 31
Evans v Western Australia (1997) 77 FCR 193
Foster v Copper Strike Ltd (2006) 200 FLR 182
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla          Booja)/Western Australia, [2006] NNTTA 19
Jax Coal Pty Ltd v Smallwood and Others (2011) 260 FLR 99
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Moore v Mungeranie (2005) 193 FLR 62
Parker v Western Australia (2008) 167 FCR 340
Queensland/William Doyle & Ors (Kalkadoon People #4), Valerie Punch &         Ors (Yulluna People)/MtDockerell Mining Pty Ltd; Syndicated Metals    Limited, [2012] NNTTA 22
Queensland Gas Company & Ors/Iman People #2; Mandandanji    People/Queensland [2010] NNTTA 210
Taylor v Johnson (1983) 151 CLR 422
Western Australia v Thomas (1996) 133 FLR 124
Western Australia/Judy Hughes and Others on behalf of the Thalanyji People,      Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd           [2004] NNTTA 108
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232      FLR 169
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);       Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 93

REASONS FOR DECISION

Introduction

On 6 April 2011, 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 Authority to Prospect (‘ATP’) 756 (‘the proposed tenement’) to OME Resources Australia Pty Ltd (‘the grantee party’) pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (Qld). In accordance with s 29(5) of the Act, 27 April 2011 was specified as the notification day.
The s 29 notice states that the grant of an ATP under the Petroleum and Gas (Production and Safety) Act 2004 (Qld):
authorises the holder to explore for petroleum for a period not exceeding twelve (12) years. Under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) a holder of an Authority to Prospect is entitled to apply for a Petroleum Lease over land that is subject to the Authority to Prospect. A Petroleum Lease entitles the holder to undertake regulated activities in order to develop and produce payable deposits of petroleum.
The proposed tenement is described as being located some 42 kilometres south-west of Rolleston in Central Queensland, within the local government areas of the Central Highlands, Maranoa and Banana Shire Councils. The approximate area of the proposed tenement is 2,174 square kilometres and it comprises 700 sub-blocks. These sub-blocks are not contiguous. Rather, the proposed tenement comprises six separate parcels of land. If granted, the proposed tenement would form part of the expansion of the existing Rolleston Coal Mine located on Mining Lease (‘ML’) 70307 and Mineral Development Licence (‘MDL’) 227 (see [104]).
The proposed tenement is one of several that QGC Pty Ltd (‘QGC’) wishes to explore with a view to considering whether the tenements hold sufficient reserves to provide additional gas resources to support the Queensland Curtis LNG (‘QCLNG’) Project at some point in the future. QGC is the parent company of the grantee party.
The sub-blocks that comprise the proposed tenement lie, in part or in whole, within the external boundary of the Karingbal #2 native title determination application (QUD23/2006, 2006/005 QC2006/005) (‘the Karingbal People #2 claim’) which was entered on the Register of Native Title Claims on 24 March 2006. The Karingbal People #2 claim has an area of about 7,110 square kilometres. It covers about 1,881 square kilometres or 86.36 per cent of the area covered by the proposed tenement.
The living persons who together comprise the applicant for the Karingbal People #2 claim are Mark Albury, Charles Stapleton, Marlene Leisha, Sharleen Leisha and Carol McLeod. Another person is listed as part of the applicant but as he is deceased his name is withheld for cultural reasons.
The Act provides that each of the following is a ‘negotiation party’: the Government party, any native title party and any grantee party (s 30A). Relevantly for present purposes, the Act defines ‘native title party’ to include any registered native title claimants (s 29(2)(b)(i)). A ‘registered native title claimant’ is the person or persons whose name or names appear in an entry on the Register of Native Title Claims as the Applicant in relation to a claim to hold native title in relation to land or waters (s 253). In this case, the registered native title claimant, and hence the native title party, comprises five living persons and one deceased person. For reasons which will become apparent, it is appropriate to use the term ‘native title party’ in these reasons as referring only to the living persons who together comprise the Applicant for the Karingbal People #2 claim.
The proposed tenement is also overlapped by the native title determination application of the Bidjara People (QUD216/2008, QC2008/005), with whom the grantee party has reached agreement. Consequently, although the Bidjara People are a native title party with whom the grantee party had to negotiate, they are not a party in these proceedings. In its statement of contentions the grantee party refers to the ‘Native Title Party (Karingbal)’ and the ‘Native Title Party (Bidjara)’. These reasons, however, will refer to the latter as the ‘Bidjara People’ to keep a clear distinction between them and the only native title party in these proceedings.
For the purpose of negotiating an agreement that the proposed tenement be granted, the grantee party met with the native title party on three occasions (31 August, 14 October and 9 December 2011). Details of those meetings are considered later in these reasons for decision.
On 3 October 2012, more than six months after the notification day, Redmond & Redmond on behalf of the native title party applied to the National Native Title Tribunal (‘the Tribunal’) under s 35 of the Act for a future act determination. The native title party’s statement of contentions states that the future act determination application was lodged by the native title party ‘in consultation with’ the grantee party.
On 5 October 2012, I was appointed to be the Member to constitute the Tribunal for the purposes of the inquiry into the future act determination application.

Procedural matters

Section 151 of the Act provides that, for the purposes of an inquiry:
(a)the Tribunal may hold hearings
(b)the Tribunal may make a determination in relation to a right to negotiate application by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal
(c)the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.
In accordance with directions made by the Tribunal on 15 October 2012 and amended on 29 October 2012 and 20 November 2012, each party provided a written statement of contentions and relevant documentary evidence. Those documents comprised:
(a)Statement of contentions on behalf of the native title party dated 19 November 2011 and five Annexures
(b)Affidavit of William Hanron Redmond sworn on 19 November 2012 and one Annexure
(c)Statement of contentions on behalf of the Government party dated 3 December 2012 and 14 Annexures
(d)Statement of contentions on behalf of the grantee party dated 4 December 2012
(e)Affidavit of Ross James Wilson sworn 4 December 2012 and nine Annexures.
Significantly, the documents provided to the Tribunal include copies of:
(a)an Ancillary Agreement between QGC, Karingbal #2 RNTC and Karingbal People RNTC signed by Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha and Carol McLeod (the ‘Ancillary Agreement’), and
(b)a right to negotiate deed of agreement for ATP 756 between the State of Queensland, OME Resources Australia Pty Ltd, Bidjara People and Karingbal #2, executed on behalf of OME Resources Australia Pty Ltd, and signed by the nine members of the Bidjara People native title claim group and by Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha and Carol McLeod (the ‘Section 31 Deed’).
The Ancillary Agreement states that the agreement and its schedules are confidential (clause 13). Further, it provides that no party will be entitled to disclose any information concerning them to any person except in limited, specified circumstances. For reasons that will become apparent, at least some of the terms of the Ancillary Agreement are integral to the outcome of this future act determination application.
Section 155 of the Act states:
Tribunal may prohibit disclosure of evidence
The Tribunal may direct that:
(a)any evidence given before it; or
(b)the contents of any document produced to it;
must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the Tribunal specifies. This section does not limit the Tribunal’s powers under sections 154 and 154A.
The grantee party sought to put the Ancillary Agreement into evidence but, on the basis that it contains material that is confidential and commercially sensitive, sought an order under s 155. I invited the other parties to make submissions in relation to this application. Both the native title party and the Government party stated that they had no concerns with the proposal and agreed to the proposed orders being made. The parties were provided with draft directions. They were advised of the possibility that I might need to refer to or quote from the Ancillary Agreement in my reasons for decision, and were asked to bear that in mind when responding to the draft directions. I was satisfied that directions of this type should be made.
On 29 November 2012, I directed pursuant to s 155 that:
(a)the contents of the Ancillary Agreement provided by the grantee party to the Tribunal in this proceeding must not be disclosed to any person outside the Tribunal except the native title party and the Government party and their legal representatives
(b)the Ancillary Agreement must only be used for the purposes of this proceeding and any proceedings related to the proposed tenement
(c)any written submissions, contentions or affidavits used or produced in this proceeding that a party intends to provide to a person who is not a party to this proceeding, excluding the Tribunal, that refer to or quote from the Ancillary Agreement must be edited so that they do not disclose the contents of the Ancillary Agreement
(d)all copies of the Ancillary Agreement held by the parties to this proceeding must be returned to the grantee party’s solicitor upon a determination being made by the Tribunal in this matter.
I have made it clear that such directions would not limit my capacity to rely on, refer to and quote from the restricted material in giving my reasons for decision in this matter. Such an approach is appropriate, if not necessary, having regard to the sections of the Act pertaining to the conduct of future act determination inquiries, particularly ss 154, 162 and 164. In addition to the provision that hearings must be held in public except in special circumstances (s 154), the Act provides that:
(a)after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry (s 162(1))
(b)the Tribunal must state in the determination any findings of fact upon which it is based (s 162(2)), and
(c)determinations must be in writing and be given to each of the parties (s 164(1)).

The clear import of those provisions is that, if it is necessary to rely on evidence to make findings of fact, the Tribunal should set out the facts on which those findings are made, even when directions have been made under s 155. I note, for completeness, that s 178 provides that, if an appeal is made to the Federal Court from a determination of the Tribunal relating to a right to negotiate application, the Tribunal must send to the Court all documents that were before the Tribunal in relation to the inquiry.

The effect of s 162(2) was considered by a Full Court of the Federal Court of Australia in Parker v Western Australia (2008) 167 FCR 340. The Full Court heard an appeal in relation to a determination made by the Tribunal about an objection to the expedited procedure. The Tribunal had made directions under s 155 in relation to certain affidavits sworn by members of the native title party claimant group and other evidence. In the reasons for determination, the Tribunal referred to those documents only to the extent necessary to explain its decision and did not include material that should ‘according to customary law and traditions remain confidential’. In their reasons for judgment, each member of the Full Court expressed views about the statutory obligations on the Tribunal, and the way in which the Tribunal could satisfy those obligations in circumstances where directions are given under s 155 in relation to evidence on which the Tribunal makes findings of fact.
As Deputy President Sosso observed in his reasons for determination in Crowe v Western Australia (2008) 218 FLR 429 (‘Crowe’) at [33]:
... while each of the Judges dismissed the appeal there was a marked variety of approaches to how s 162(2) should be applied by the Tribunal when setting out its reasons for its determination. What is clear however is that the Tribunal is under an obligation to set out clearly the factual basis of its determination. The obligation imposed by s 162(2) cannot be avoided because of issues relating to cultural or customary concerns. Wherever possible, especially when directions have been made pursuant to s 155 to restrict the disclosure of documents produced, the material which has cultural or customary sensitivity should only be disclosed to the extent required by the law and, where possible, direct quotation from affidavits should be avoided. Unnecessary details of such culturally sensitive material should not be set out in the reasons.

He continued:

This obligation ... does require that the Tribunal use its discretion to identify and set out in an appropriate form, the key material from which it has drawn inferences. How this is best effected is a matter that can only be resolved in each inquiry having regard to the nature of the material produced, the attitude of the parties and whether it is contested or uncontested. (at [35])

In light of the Full Court’s reasons for judgment and the Tribunal’s determination in Crowe, I intend to refer only to those aspects of the Ancillary Agreement that are relevant to my determination and, where appropriate, will quote or closely paraphrase passages from it. To that extent, if it is necessary to do so, the directions made under s 155 are hereby varied accordingly.
The native title party and the grantee party did not require an oral hearing in relation to this matter and consented to the Tribunal making a determination on the papers. The Government party made no submission in relation to this matter, but did not seek a hearing.
Having regard to the submissions of the parties and the nature and volume of the documents lodged with or provided to the Tribunal, I am satisfied that the issues for determination can be adequately determined in the absence of the parties and that the Tribunal may make a determination in relation to the future act determination application by considering those documents without holding a hearing.
For completeness, I note that no negotiation party contends that any other negotiation party did not negotiate in good faith as mentioned in s 31(1)(b) of the Act (see s 36(2)).

The issue in statutory context – an overview

The future act determination application is to be determined in accordance with relevant provisions of the Act which, in summary state that:
(a)except where s 37 applies, the Tribunal must make one of the following determinations:
·     a determination that the act must not be done
·     a determination that the act may be done, or
·     a determination that the act may be done subject to conditions to be complied with by any of the parties (s 38(1))
(b)in making its determination, the Tribunal must take into account the criteria listed in s 39(1) and (2)
(c)before making its determination, the Tribunal must ascertain whether there are any issues relevant to the determination on which the negotiation parties agree, and, if there are and all the negotiation parties consent, then, in making its determination, the Tribunal:
·     must take that agreement into account, and
· need not take into account the matters mentioned in s 39(1) to the extent that the matters relate to those issues (s 39(4))
(d)the Tribunal must not make a determination if an agreement of the kind mentioned in s 31(1)(b) has been made (s 37).
Those provisions (together with ss 31, 36(4), 36A(1)(b), 41(1), 41A and the Preamble) demonstrate a clear legislative preference for negotiation parties to reach agreement about the doing of a proposed future act (or at least some relevant issues) and operate to inhibit the exercise of the Tribunal’s discretionary powers to make a determination by directing the Tribunal to take into account any agreement on relevant issues.

The operation of that scheme needs to be examined closely in this case because of the somewhat unusual circumstances in which the future act determination application was made and the form of outcome which all the negotiation parties seek. In essence, the contentions of the parties differ not about the outcome, but about the way in which the Tribunal should proceed to make a determination in terms of an apparently agreed outcome.
The issue before the Tribunal is whether to make a determination that the act may be done subject to conditions to be complied with by any of the parties (i.e., as per the Ancillary Agreement) on the basis that:
(a)agreement has been reached by the negotiation parties and the determination is to be made by consent, or
(b)agreement has not been reached by the negotiation parties and the determination is to be made by reference to the criteria in s 39(1) and (2).
The contentions of the parties are, in essence, as follows:
(a)the native title party submits that either:
i. the native title party and the grantee party have been able to execute a formal agreement of the type mentioned in s 31(1)(b) of the Act and hence it is appropriate for the Tribunal to make a consent determination that the future act be done subject to a condition that the native title party and the grantee party be bound by the terms of the Ancillary Agreement, or
ii. if an agreement contemplated by s 31(1)(b) of the Act has not been made, the Tribunal has power to make a determination under s 38 that the future act may be done subject to conditions to be complied with by any of the parties, and in doing so can rely on the Ancillary Agreement for the purposes of s 39(4) and need not make an extensive evaluation of the criteria in s 39(1)
(b)the Government party contends that this is not a suitable matter to proceed to a consent determination and that the Tribunal should consider the criteria in s 39 to make a determination pursuant to s 38(1)(c) that the future act be done subject to compliance with the terms of the Ancillary Agreement
(c)the grantee party submits that there is no agreement of the kind contemplated by s 31(1)(b) of the Act, but the Tribunal should make a determination that the future act may be done subject to the condition that the native title party and the grantee party comply with the Ancillary Agreement.
The contentions of the parties as to which approach is appropriate appear to be influenced by their respective understandings of the facts, particularly the extent to which (if at all) the native title party has agreed to the doing of the future act. Consequently, it is necessary to consider the circumstances surrounding the signing of the Ancillary Agreement.

Negotiation and execution of the Ancillary Agreement

As noted at [9], representatives of the grantee party met with the native title party and their representatives on 31 August, 14 October and 9 December 2011. The conduct and outcomes of those meetings are relevant to deciding whether there is an agreement of the kind mentioned in s 31(1)(b) of the Act. Information about each of those meetings is found in the:
(a)Statement of contentions on behalf of the native title party dated 19 November 2012
(b)Affidavit of William Hanron Redmond sworn on 23 November 2012
(c)Statement of contentions on behalf of the grantee party dated 4 December 2012, and
(d)Affidavit of Ross James Wilson (the Indigenous Relations Manager employed by QGC Pty Ltd) sworn on 4 December 2012

and annexures to those documents. The relevant features of each meeting as described in those documents are summarised or set out below.

On 31 August 2011, a meeting was held in Rockhampton between the native title party and the grantee party. The draft Meeting Report states that the meeting was attended by the following Karingbal People: Mark Albury, Charles Stapleton, Sharleen Leisha, Marlene Leisha, and Carol McLeod (i.e. all the living persons who together comprise the native title party) and by their adviser Greg Dunk and legal adviser Bill Redmond. I note that in his Affidavit, Mr Redmond records his attendance at the meeting and that of Charles Stapleton, Carol McLeod, Sharleen Leisha and Marlene Leisha. He does not list Mark Albury as being present. Nothing seems to turn on the apparent difference between the draft Meeting Report and Mr Redmond’s Affidavit. The grantee party was represented by Ross Wilson, Josh Tupper, Chris Delaforce and its legal advisor Dominic McGann.
The meeting ran (with breaks) from 11am until 2pm. A redacted copy of the Meeting Report (with references to amounts of compensation blacked out) is in evidence. The author of the document was not identified but it was printed on paper with a QGC heading and each page is marked DRAFT. There is no evidence as to whether the contents of the document were confirmed by those who attended the meeting. However, no one took issue with the document. It states that the purpose of the meeting was ‘Karingbal and QGC – Native title and cultural heritage discussion’. During the meeting, there was an information session in which QGC provided a copy of a PowerPoint presentation which covered the BG Group business, QCLNG Project and associated infrastructure, exploration, post-exploration, ILUAs and Cultural Heritage Management Plans – Agreements and Strategies. There was general discussion of those items. There was an explanation of the proposed exploration program and the steps that would be required to progress from exploration to production (possibly in 2014-15) if such a decision is made. The ‘key principles’ to QGC’s approach to the Bowen Basin are:
(a)no disadvantage as between the Traditional owner groups (within the Bowen Basin and within the Surat Basin)
(b)QGC wants to initially settle arrangements for exploration and then move to arrangements for production, and
(c)QGC wishes to address native title and cultural heritage comprehensively and contemporaneously (but will settle the most appropriate way forward with the Karingbal People).

It was noted that the arrangements for the Karingbal People are unusual in that the native title claim overlaps with the Bidjara People’s claim, and the Karingbal People are the only group in the Bowen Basin in this situation. Various options for types of agreement and payments, as well as Cultural Heritage Management Strategy (‘CHMS’) were considered. Among the actions agreed were that the grantee party’s legal adviser would send draft ancillary agreements and other documents to the Karingbal People.

Following the meeting on 31 August 2011, the legal representative of the grantee party provided a draft ancillary agreement and a draft section 31 deed to Mr Redmond.
On 14 October 2011, a meeting was held in Rockhampton between the native title party and the grantee party. The meeting was attended by all the living persons who together comprise the native title party, and by their advisers Greg Dunk and Bill Redmond. The grantee party was represented by Ross Wilson, Andrew Clarkson and Dominic McGann. The meeting went from 10am until 2pm. A redacted copy of the Meeting Report marked DRAFT (with references to amounts of compensation blacked out) is in evidence. I make the same observations about this document as for the draft Meeting Report for the meeting on 31 August 2011.
The draft Meeting Report records that the matters discussed at the meeting included the proposed tenement and ATP722 (which also covers an area included in the Karingbal claim area), compensation to the Karingbal People, terms of the proposed ancillary agreement and the CHMS. Among the actions to be taken following the meeting were that Mr Redmond was to mark-up the draft ancillary agreement and the version of the CHMS and send the marked-up documents to the grantee party’s legal adviser for consideration and comment.
In his Affidavit, Mr Redmond refers to his attendance at the meeting on 14 October 2011 and the attendance of ‘all five living Applicants for the Native Title Party’. He describes the purpose of the meeting as being to ‘discuss and finalise’ the negotiation and content of a section 31 deed and ancillary agreement which would include a CHMS. He states: ‘I believe the negotiations were conducted in good faith and the parties were satisfied with the substance of the agreed terms and came to a concluded agreement’.
On 9 December 2011, a meeting was held in Rockhampton between the native title party and the grantee party. According to the native title party’s statement of contentions, the parties ‘held a meeting to resolve to enter into a section 31 Deed and Ancillary agreement in respect of ATP756.’ The native title party contends that the minutes of the meeting show that all living applicants of Karingbal #2 were unanimous to the grant of the proposed tenement and all applicants signed both the Section 31 Deed and the Ancillary Agreement on 9 December 2011.
The Meeting Report marked DRAFT is in evidence. I make the same observations about that document as for the draft Meeting Reports for the meetings on 31 August 2011 and 14 October 2011. It states that the purpose of the meeting on 9 December 2011 was ‘Karingbal People and QGC – Native Title and Cultural Heritage Discussion’. Again, the meeting was attended by Mark Albury (‘MA’), Charles Stapleton (‘CS’), Sharleen Leisha (‘SL’), Marlene Leisha (‘ML’) and Carol McLeod (‘CMc’) and by their advisers Greg Dunk and Bill Redmond (‘BR’). QGC was represented by Ross Wilson (‘RW’), Christine Delaforce and Dominic McGann (‘DM’). The meeting opened at 10.30am and closed at noon. For present purposes, the following extract from the Meeting Report is relevant.
Item #3     Item Detail – Finalisation and execution of Ancillary Agreement and Section 31                    Deed
DM and RW discussed the documents with Charlie Stapleton/Mark Albury who sought approval of the documents by their lawyer Daniel Lavery before they sign. This was agreed to and for QGC to pay one day for DL. CS/MA to sign documents today on DM undertaking that these will not be activated unless DL approves the documents.
On the above understanding CS/MA signed the Ancillary Agreement and two x              Section 31 Deeds. DM prepared a statement giving an undertaking that the CS/MA signatures on the documents would only be enlivened with DL approval of the documents.
1.    Action: DM to send documents to DL and DL to provide response by 16                 December 2011
BR agreed to have SL ML and Mc sign the Ancillary Agreement and 2 x Section 31 Deeds and witnessed their signatures.
Mr Redmond’s account of the 9 December 2011 meeting is contained in his Affidavit expressed to be made ‘to support the native Title Party’s contentions that all Applicants signed the section 31 deed and Ancillary Agreement to consent to the future act’. He states:
5. …    The purpose of this final meeting was for the parties to execute a section 31 deed and Ancillary agreement. I provided advice to all Applicants regarding the content of the documents and was satisfied that the substance of the documents reflected the negotiations and the agreement made between the parties. Each Applicant agreed to sign the document and confirmed they were happy with the contents of same.
6.       At this final meeting prior to signing the documents, Charles Stapleton and Mark Albury requested to have a private conversation with members of the Grantee party, namely their legal adviser, Mr Dominic McGann. They left the room to hold a private conversation and returned shortly after. At which time, Mr McGann advised me and the remaining Applicants that Charles Stapleton and Mark Albury would be signing the documents but the documents would be sent to a Mr Daniel Lavery for independent advice. Attached hereto and marked “WHR-1” is a true and correct copy of the meeting report held on 09 December 2011.
7.       I believe at all times Charles Stapleton and Mark Albury as Applicants actively participated in the negotiations and at no time did they indicate to me that they were not satisfied with the substance of the agreed terms nor did they provide any indication they would not consent to the future act of Authority to Prospect 756.

It is apparent from paragraph 6, quoted above, that Mr Redmond does not take issue with the draft Meeting Report.

Mr Wilson’s account of the outcome of the meeting is as follows:
At that meeting, each of the Karingbal People #2 Applicants executed the Ancillary Agreement and the Section 31 Deed. However, Charles Stapleton and Mark Albury executed the Ancillary Agreement and the Section 31 Deed on the basis that the Grantee Party’s legal representative did not lodge the documents with the Government Party until Charles Stapleton and Mark Albury’s own legal representative had confirmed that they were in ‘executable form’.
In similar terms, the native title party contends that, although Charles Stapleton and Mark Albury signed the Section 31 Deed and the Ancillary Agreement, they requested that the documents not be lodged with the Government party until their independent legal adviser, Daniel Lavery, confirmed that the documents were in executable form. The grantee party agreed to hold the executed Section 31 Deed and the executed Ancillary Agreement in escrow until such independent legal advice was provided and in the event advice was not received, the grantee party would lodge the documents with the Tribunal and seek a future act determination.
Mr McGann sent an email to Mr Lavery on 9 December 2011 (copied to Bill Redmond and Ross Wilson) stating:
Daniel,
I understand that you are in the North securing an ILUA on behalf of the client hence I am emailing you.
In short, I act for QGC which has today sought to finalize section 31 deeds and an AA with the Karingbal People. Following a discussion with them and upon my undertaking, Mark and Charlie have agreed to execute the documents on the basis that they will not be lodged with the State unless you have confirmed that they are in an executable form. In the event that you advise they are not in an executable form, QGC will lodge the documents with the NNTT and seek a FADA (on the basis that the execution by Mark and Charlie is to be disregarded).
Finally, please let me know that you act for Mark and Charlie and I will forward the documents to you and confirm fee arrangements (to review the documents). I look forward to hearing from you.
All the best,
Dominic M McGann
Partner
McCullough Robertson
The Government party states that it was advised by the previous representatives of the grantee party, McCullough Robertson, that the situation was as follows:
In terms of the Karingbal People, there are 5 surviving members of the RNTC. As it is, all 5 have executed the relevant Ancillary Agreement as well as the section 31 agreement. However, 2 of the 5 have asked that their signatures be held “in escrow” until they receive advice from another lawyer.

The executed Section 31 Deed and the executed Ancillary Agreement have not been released from escrow. The Government party understands that while the two signatories referred to above have not withdrawn their support for the agreement, they have not advised that they are willing to release it.

Aspects of the evidence referred to in [33]–[45] above could support a finding that an agreement of the kind mentioned in s 31(1)(b) has been made and that, as a consequence the Tribunal must not make a determination. In particular:
(a)all of the living persons who comprise the native title party have signed the Ancillary Agreement and the Section 31 Deed
(b)those persons and their advisers were present at three meetings with representatives of the grantee party where relevant matters were discussed
(c)the meetings were apparently conducted well and each meeting went for at least one and a half hours
(d)the legal representative of the native title party deposes that the negotiations were conducted in good faith and the parties were satisfied with the substance of the signed terms and came to a concluded agreement
(e)there is no suggestion that the signatures were obtained by fraud, mistake, duress, unequal bargaining power or similar factor that might detract from or contradict a finding that each of the persons who comprise the applicant gave free and informed consent to the Ancillary Agreement and the Section 31 Deed.
However, there is also evidence that:
(a)Mr Stapleton and Mr Albury only agreed to sign the Ancillary Agreement and the Section 31 Deed at the meeting on 9 December 2011 on the basis that their agreement to those documents was conditional upon Mr Lavery’s approval being given to those documents
(b)Mr Lavery’s approval was to be provided in relation to whether the documents were in ‘executable form’
(c)the grantee party’s legal representative gave an undertaking not to lodge the documents with the Government party unless Mr Lavery confirmed that they are in executable form
(d)if Mr Lavery were to advise that the documents are not in executable form, QGC would lodge the documents with the Tribunal and seek a future act determination on the basis that the execution by Mr Stapleton and Mr Albury be disregarded.
It is not clear from the evidence whether, as Mr Redmond implies, Mr Stapleton and Mr Albury were satisfied with the substance of the terms of the documents and whether, as the Government party suggests, they have not withdrawn their support for the agreement.
Given the way in which the contentions were made, this is not a case in which the Tribunal needs to decide whether, because it was signed by all parties (including Mr Stapleton and Mr Albury), the Ancillary Deed is binding on all the parties to it. Accordingly, it is not necessary to survey the numerous judicial authorities on intention to form a contract and whether a binding contract exists. In particular, it is not necessary to consider in detail Australian judicial decisions about what evidence can be considered to determine objectively or subjectively whether there was an intention that there should be a concluded contract. I simply note that there is judicial authority for the following propositions:
(a)Although the ‘objective theory’ or ‘objective approach’ (i.e. that the law is concerned, not with the real intentions of the parties, but with the outward manifestation of those intentions) is in ‘command of the field’ (see Taylor v Johnson (1983) 151 CLR 422 at 428–9, (1983) 45 ALR 265 at 268-9 per Mason ACJ, Murphy and Deane JJ; see also Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 (‘Air Great Lakes’) ), the number and nature of exceptions to its application raise questions as to its generality. For example, it may be appropriate to have regard to surrounding circumstances (before and after the document was signed) as well as the signed document to determine whether a contract exists, rather than for the purpose of construing an admitted contract (see Air Great Lakes at 313-14, 316-17 per Hope JA, see also 337 per McHugh JA).
(b)Actual subjective intention to contract is a factor (though not always the determining factor) which the law takes into account in determining whether a contract exists. In determining whether the parties intended an agreement to be legally enforceable, regard may be had to extrinsic circumstances including conversations between the parties relating to the document, particularly where that evidence provides the basis for not giving to a document the legal consequences which would otherwise be given to it. In other words, extrinsic evidence may be admitted to disprove contractual intention (Air Great Lakes at 329-32 per Mahoney JA, see also 334, 337 per McHugh JA).
(c)Even when a document is apparently complete on its face, it is open to proof that it was executed so as to be handed to the parties’ lawyers to be used only upon the fulfilment of a condition; in other words, it was subject to a condition precedent (Air GreatLakes at 334, 336 per McHugh JA).

The best evidence as to the state of mind or intention of Mr Stapleton and Mr Albury when they each signed the documents would be from them and perhaps Mr McGann, with whom they had a private conversation before they executed the documents. There is no affidavit or other evidence from any of them in these proceedings. I will proceed on the basis that Mr McGann’s understanding of the basis on which they signed is set out in his email message to Mr Lavery on 9 December 2011 and that account is not disputed. In these circumstances it is appropriate to consider any other available evidence that might indicate whether Mr Stapleton and Mr Albury agreed with the terms of executed documents.
The native title party contends (by reference to the draft Meeting Report of the meeting on 9 December 2011) that ‘all applicants of the native title party as a whole agreed to the grant’ of the proposed tenement, and that the Tribunal should proceed to make a consent determination on the basis that the parties have reached an ‘accord in principle’. The final execution of the Section 31 Deed and the Ancillary Agreement, it is submitted, ‘has not been possible’ due to ‘circumstances beyond the direct control of the parties’.
The grantee party and the Government party contend that there is no agreement of the kind mentioned in s 31(1)(b).
The submission by the Government party is based on speculation. The State surmises that, because little information seems to be available as to the reasons for the two relevant signatories not releasing the agreement, it remains possible that these claimants may disagree with the content of the agreement, or alternatively, that they may be dissenting due to a division within the Applicant. As a result, the Government party contends that this is not a suitable matter to proceed to a consent determination.
An explanation of a less speculative kind is found in Mr Wilson’s Affidavit where he records his understanding that:
(a)although the grantee party agreed in principle to pay for Charles Stapleton and Mark Albury’s own legal representative (Daniel Lavery) to review the Ancillary Agreement and the Section 31 Deed, arrangements for the engagement of Mr Lavery were never finalised as agreement could not be reached in relation to the scope of the engagement
(b)Mark Albury and Charles Stapleton’s (effective) refusal to sign the agreement was as a consequence of them:
iii. wanting a separate legal review of the Ancillary Agreement and Section 31 Deed, and
iv. having a concern over who was to be the recipient of the financial benefits under the Ancillary Agreement
(c)the grantee party was only made aware of these concerns on 9 December 2011.
Mr Wilson’s Affidavit explains why Mr Lavery’s advice was not provided and hence the precondition to the release of the documents from escrow could not occur. His Affidavit also refers to an apparent concern as to one substantive aspect of the Ancillary Agreement (i.e. who would receive the financial benefits) rather than only whether the documents were in executable form.
Mr Wilson also refers to a meeting on 22 November 2012 (more than a month after the future act determination application was made and almost one year after the native title party executed the two documents) which was attended by Mark Albury and Charles Stapleton and their archaeologist Ann Wallin. The purpose of the meeting was to discuss the Ancillary Agreement and the Section 31 Deed which were still held in escrow. Mr Wilson records his understanding of the position of Mr Albury and Mr Stapleton following that meeting to be that:
(a)they did not object to the grant of ATP756
(b)they wished for the Ancillary Agreement and the Section 31 Deed to remain in escrow
(c)they confirmed that Mr Lavery was no longer their legal representative (and were no longer seeking a legal review of the Ancillary Agreement and the Section 31 Deed)
(d)Charles Stapleton is an applicant on the competing Brown River People’s native title claim, and
(e)Mark Albury and Charles Stapleton would reconsider their position following completion of a Federal Court mediation meeting between the Karingbal People and the Brown River People to be held on 29 and 30 November 2012.

As a consequence of the 9 December 2011 meeting and the grantee party’s subsequent dealings with Mark Albury and Charles Stapleton, culminating in the meeting on 22 November 2012, Mr Wilson understood that there is presently no agreement with the native title party for the purpose of s 31(1)(b) of the Act.

I note again that there is no evidence from Mr Albury or Mr Stapleton about their current position in relation to the documents. If Mr Wilson’s understanding of their position at 22 November 2012 is correct, then there is no apparent objection to the grant of the proposed tenement. However, for reasons that are not clear, they maintained the wish for the documents to remain in escrow, at least until another event occurred (the Federal Court mediation to be held on 29 and 30 November 2012). In other words, their support for the documents remained conditional, but the condition changed (or has been enlarged) and now appears to be unrelated to the contents of the documents. The Tribunal is not aware of the outcome of the Federal Court mediation, but proceeds on the basis that, if the outcome had been satisfactory to Mr Albury and Mr Stapleton, they would have agreed to the documents being made available to the State.
Apart from disclosing a possible concern about who would receive benefits under the Ancillary Agreement, the evidence referred to in [54]–[56] does not suggest that Mr Albury and Mr Stapleton disagree with the grant of the proposed tenement or with the contents of the two documents that would allow for the proposed tenement to be granted with the agreement of the native title party. Is there other material that might assist the Tribunal to decide whether there is an agreement with the native title party of the kind mentioned in s 31(1)(b) of the Act?
Subsection 146(b) of the Act provides that, in the course of an inquiry, the Tribunal may, in its discretion, adopt any findings, decision or determination of the Tribunal that may be relevant to the inquiry.
The Tribunal considered the relationship between the native title party and Charles Stapleton and Mark Albury, and the role of Daniel Lavery in providing advice to Mr Stapleton and Mr Albury, in unrelated future act determination application proceedings in Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 93 (‘Xstrata good faith decision’). Because the native title party and the Government party had the same representatives in those proceedings as in the present proceedings, and I constituted the Tribunal in those proceedings, I thought it appropriate to refer to the relevant parts of that decision.
It appears from the reasons for the Xstrata good faith decision that:
(a)As early as 25 June 2011, Charles Stapleton wrote to the legal representative of the relevant mining company referring to the circumstances surrounding the Karingbal #2 claim and the ‘intentions of those families who have demonstrated traditional connection to Karingbal country’ to file a new native title claim (Karingbal #3/Brown River People) in ‘the near future’. Mr Stapleton stated that he was the only person who is both part of the Karingbal #2 applicant (i.e. the native title party) and authorised to be an applicant for the Karingbal #3/Brown River claim (Xstrata good faith decision at [147](d)).
(b)The new native title claim (Charles Stapleton & Ors on behalf of the Brown River People v State of Queensland QUD245/2011) was filed in the Federal Court on 29 August 2011 (Xstrata good faith decision at [147](h)]).
(c)A meeting of the parties to the Xstrata matter was held on 4 and 5 October 2011. Most of the persons who together comprise the First native title party were present. Sharleen Leisha, Marlene Leisha and Carol McLeod attended on 4 October 2011 and were represented at that meeting by Mr Redmond. Mr Lavery was also present at the meeting on 4 and 5 October as the representative of Charles Stapleton, who attended the meeting on both days. Mark Albury did not attend on either day (Xstrata good faith decision at [148]).
(d)It is clear that Mr Lavery played an active role in the negotiations from the meeting on 4 and 5 October 2011 onwards (including at a mediation conference convened by the Tribunal). According to the minutes of the 4-5 October 2011 meeting, he was ‘acting in a support role for Mr [Charles] Stapleton in an unpaid capacity’. Apparently, prior to that meeting, the other people who comprise the native title party were not aware of the new representative arrangement (Xstrata good faith decision at [193] see also [148]–[192], [194]–[196]).
Those findings in the Xstrata good faith decision do not determine the outcome of these proceedings. They merely provide some background to the present proceedings, at least to the extent that they explain Mr Lavery’s relationship with Mr Stapleton and Mr Albury from at least October 2011 and until about February or March 2012. The findings also illustrate that there were divisions within the native title party such that Mr Stapleton, while he remained one of the persons who comprise the native title party, was also actively preparing for the Brown River People’s claim. Mr Stapleton is one of three people who together comprise the applicant in the Brown River People’s claim which was filed in the Federal Court on 29 August 2011, two days before the grantee party first met with the native title party in relation to the proposed tenement.
None of the material referred to in [33]–[45] and [54]–[56] or those findings in the Xstrata good faith decision prove that Mr Albury and Mr Stapleton did not agree to the contents of the Ancillary Deed or the Section 31 Deed. All that material demonstrates is that they sought to delay the time at which the documents would be released to the Government party and hence delay the grant of the proposed tenement. To date, however, they have not agreed to the release of the documents and the grantee party has not sought to enforce them.
Having considered all relevant evidence in these proceedings, and relevant findings in the Xstrata good faith decision insofar as they provide some background or context to the circumstances that give rise to the present proceedings, I am not satisfied that Mr Stapleton and Mr Albury gave their unqualified support to the content of the Ancillary Agreement and the Section 31 Deed. Consequently, I am not satisfied that the executed Ancillary Agreement is an agreement of the kind mentioned in s 31(1)(b) of the Act.

Type of determination

As noted earlier, each of the parties to these proceedings submits that a determination should be made pursuant to s 38(1)(c) of the Act, i.e., a determination that the act may be done subject to conditions to be complied with by any of the parties.
The only condition which the parties submit should be imposed is that the native title party and the grantee party comply with the form of the Ancillary Agreement.
Consent determination: The native title party submits that:
(a)the native title party and the grantee party have been able to execute a formal agreement of the type mentioned in s 31(1)b) of the Act
(b)pursuant to an agreement between the grantee party and two named applicants, the grantee party has undertaken not to lodge the documents with the Government party
(c)the Tribunal should make a consent determination on the basis that the parties have reached an accord in principle, but due to circumstances beyond the direct control of the parties, the final execution of the Section 31 Deed and the Ancillary Agreement has not been possible
(d)the determination should be that the future act be done subject to a condition that the native title party and the grantee party be bound by the terms of the Ancillary Agreement.

I note that the submission set out in (d) is expressed to be made by the native title party ‘excluding the two named Applicants’, i.e. Mr Stapleton and Mr Albury.

The basis for the submission is that provisions in the Ancillary Agreement are of the standard type to be found in most heritage protection agreements and deal with benefits, environmental protection, dispute resolution, the nature and form of notices. Schedule 3 of the Ancillary Agreement provides that the parties intend to be bound by a CHMS for the purpose of managing the impact of ATP756 activities on Aboriginal Cultural Heritage. The CHMS sets out comprehensive cultural heritage protection provisions, including provisions relating to proposed surveying, monitoring, salvage and storage of cultural heritage items, skeletal material, cultural heritage inductions and training programs, and payments for cultural heritage surveys.
The native title party contends that the contents of the Ancillary Agreement clearly deal with most of the matters contemplated by the enumerated criteria in s 39(1) of the Act. The Agreement provides for cultural heritage clearances and the payment of various fees which will assist the native title party to develop its economic structures. The cultural heritage surveys and clearances allowed for in the Ancillary Agreement will assist the native title party in protecting any areas or sites of particular significance.
The Government party submits that this is not a suitable matter for a consent determination and supports its submission by reference to the Tribunal’s decisions in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 (‘Monkey Mia’), Moore v Mungeranie (2005) 193 FLR 62 (‘Moore’), Foster v Copper Strike Ltd (2006) 200 FLR 182, Queensland/William Doyle & Ors (Kalkadoon People #4), Valerie Punch & Ors (Yulluna People)/Mt Dockerell Mining Pty Ltd; Syndicated Metals Limited, [2012] NNTTA 22; Richard Doyle & Ors (Iman People #2)/Mining Investments One Pty Ltd; Aard Metals Limited/Queensland, [2012] NNTTA 7; Selwyn James Appo & Ors (Port Curtis Coral Coast); Alan Douglas Hatfield & Ors (Darumbal People)/Pacific Fertilisers and Chemicals Pty Ltd/Queensland, [2011] NNTTA 190 (‘Appo’). As a result, the State contends that the Tribunal should consider the criteria set out in s 39 of the Act to make a determination pursuant to s 38(1)(c) of the Act.
Since at least 2001, 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) of the Act. The legal basis for the making of consent determinations was set out by the Tribunal in Monkey Mia.
Such determinations have been made when it is clear that agreement in principle has been reached by the negotiation parties, but for various reasons not all of the signatures of the persons collectively comprising the Applicant can be obtained. Those reasons could include the death, illness or incapacity of a person or persons, or 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. In other instances, the person or persons not signing an agreement are in good health and can be located but they 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 common element in these circumstances is that 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.
However, the Tribunal has 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 (at [64]).
As Deputy President Sumner emphasised in Monkey Mia (at 370), 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 (at [58]):
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 stated on a number of occasions that it will, having regard to the above 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]).
In Appo (at [29]-[39]), the Tribunal reviewed a series of Federal Court judgments on the relationship between the Applicant of a claimant application and the broader claim group, and the means by which the decisions of the applicant can be taken. It is not necessary to repeat what was stated there, but it is appropriate to note that while it is the Applicant, and only the Applicant, that is entitled to deal with all matters arising under the Act, the general rule is that the Applicant must speak with one voice, that is, they must make a decision unanimously. That ‘voice’ however is the voice of those who are willing and able to speak. If persons forming part of the Applicant choose to absent themselves from the process, then those persons willing and able to perform the duties reposed in them by the native title claim group, can make the requisite decisions. So far as the Tribunal’s consent determination powers are concerned, there cannot be a consent determination when the persons comprising the Applicant are divided on the merits of an agreement.
The circumstances in this case are close to the line at which a consent determination might be appropriate. But they do not cross that line. Each of the living persons who comprise the native title party is willing and able to speak. None has chosen to absent themself from the process. There appears to be internal division (or at least an absence of unanimity) among the persons who comprise the native title party about whether the Ancillary Agreement is in executable form and possibly about one or more of its terms (i.e., who would receive financial benefits under the Ancillary Agreement). Whether the motivation for Mr Stapleton and Mr Albury not agreeing to release the Ancillary Agreement from escrow is linked to the other native title claim is not apparent from the evidence. Although it appears that they did not decline Mr Redmond’s representation, they clearly sought separate legal advice in relation to the Ancillary Agreement and would not authorise its release until they received that advice.

Accordingly, I conclude that this is not a case for a consent determination.
Conditional determination: The Government party submits that the determination be that the future act can be done subject to compliance with the terms of the Ancillary Agreements between the grantee party and the Bidjara People and the grantee party and the Karingbal People #2.
Although the Government party supports such a conditional determination, its submission is understandably qualified. The Government party states that it is not a party to the Ancillary Agreement between the grantee party and the native title party, and cannot comment further on the suitability of the agreement or whether or not it appears favourable to the native title party. However, the Government party notes that:
(a)the native title party has at all times been legally represented in negotiations, despite the fact that reference has been made to another lawyer being previously engaged by two of the persons comprising the Applicant
(b)the native title party contends that ‘provisions in the Ancillary Agreement are of the standard type’, and ‘the contents of the Ancillary Agreement clearly deal with the sort of matters dealt with in the section 39(1) criteria’, and
(c)the native title party submits that the Tribunal should make a determination in the terms of the agreement negotiated between the parties.

Accordingly, the Government party contends that the native title party should be given the benefit of the agreement negotiated between it, or the majority of the registered claimants on its behalf, and the grantee party.

The grantee party submits that a determination in those terms is appropriate because:
(a)the Government party agrees to the grant of ATP756 for the purpose of s 31(1)(b)
(b)agreement has been reached between the grantee party and the Bidjara People for the purpose of s 31(1)(b) of the Act
(c)whilst there is presently no unanimity of agreement between the Karingbal applicants in relation to the grant of ATP756 for the purpose of s 31(1)(b), the native title party have through their solicitor consented to the grant of ATP756, and
(d)the matters the Tribunal is required to consider under s 39(1) of the Act are appropriately addressed.
The native title party submits that:
(a)if the Tribunal determines that the agreement contemplated by s 31(1)(b) of the Act has not been made, the Tribunal has the power to make a determination under s 38 of the Act, and
(b)in these circumstances, an extensive evaluation of the criteria in s 39(1) of the Act is not required, as reliance can be placed on the agreement of the parties and the operation of s 39(4) of the Act.
Subsection 39(4) of the Act provides:
Agreement to be given effect
(1)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.
The submission set out in [83](b) contains two assumptions: that agreement has been reached between the parties, and that the issues on which the parties agree are relevant to the Tribunal’s determination and are matters mentioned in s 39(1) so that the Tribunal ‘need not take into account’ those matters (s 39(4)). It is relevant to note that, although s 39(4) requires the Tribunal to ascertain whether there are any issues relevant to its determination on which the negotiation parties agree, the Tribunal must take that agreement into account if ‘all of the negotiation parties consent’.
In this case, all the negotiation parties agree that the Tribunal should make a determination that the future act be done subject to the native title party and the grantee party complying with the terms of the Ancillary Agreement. Those parties’ submissions are not contingent on the executed Ancillary Agreement being legally enforceable on or since the date on which the future act determination application was made. Had the parties agreed that the Ancillary Agreement was enforceable, the application would not have been brought or would have been withdrawn. Although expressed in different ways, the agreement is, in essence, that the terms of the Ancillary Agreement are appropriate to be adopted as conditions to the grant of the proposed tenement, irrespective of the legal status of the Ancillary Agreement.
As noted earlier, the native title party’s submission is expressed to be made ‘excluding the two named Applicants’. However, on the basis that the Applicant must speak with one voice and the evidence indicates that the native title party agrees to the grant of the proposed tenement I will proceed on the basis that, in all the circumstances of this case, all of the negotiation parties consent to a particular outcome.
Section 39(1) of the Act provides that, in making its determination, the Tribunal ‘must take into account’ the matters listed in that subsection. The Tribunal ‘must’ take into account any agreement between the parties on relevant issues (s 39(4)(a)) and ‘need not’ take into account the matters mentioned in s 39(1) to the extent that the matters relate to those issues (s 39(4)(b)).
Accordingly, I will proceed to consider the evidence and contentions in relation to the matters mentioned in s 39(1) bearing in mind any relevant provisions in the Ancillary Agreement.
Although the Ancillary Agreement and Section 31 Deed are in evidence it is not necessary to describe their contents in detail. Indeed, in light of the contentions of the parties, it is not necessary to refer to the contents of the Section 31 Deed.
Given the Tribunal’s directions pursuant to s 155 of the Act in relation to the Ancillary Agreement, and for the reasons set out in [15]-[22], I intend to refer only to those aspects of the Ancillary Agreement that are relevant to my determination and, where appropriate, will quote or closely paraphrase passages from it.
The Ancillary Agreement is expressed to be between QCC Pty Limited, the Karingbal #2 registered native title claimant (‘RNTC’), i.e. the native title party, and the Karingbal People RNTC. It recites as part of the background to the agreement that:
The Parties have entered into this Agreement to record their agreement to:
(i)     the provision of benefits by QGC in Compensation for any effect on Native Title of QGC’s activities within ATP 722, ATP 756 and any Future Tenements within the Claim Area;
(ii)    the provision of benefits by QGC in consideration for the Karingbal RNTCs’ consent to the addition of any excluded land to ATP 722, the grant of ATP 756 and the grant of any Future Tenements;
(iii)   set out various commitments including to their ongoing relationship; and
(iv) outline specific management procedures to ensure that all activities undertaken on the Tenements will recognise, protect and manage Aboriginal Cultural Heritage in compliance with the requirements of the ACHA and the Karingbal Claim Groups. These procedures are contained in the CHMS at Schedule 3. This Agreement constitutes an agreement for the purposes of section 23(3)(a)(iii) ACHA.

As that statement indicates, the Ancillary Agreement relates to activities within the proposed tenement and other tenements.

The s 39 criteria for making a determination

Central to the scheme by which the Tribunal makes a determination about whether the future act may or must not be done are the requirements of s 39 of the Act. Subsections (1) and (2) of that section provide:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
The Tribunal has long accepted that its task involves weighing the various criteria in s 39(1) by giving proper consideration to them on the basis of evidence. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned. The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them. Indeed it is apparent that the Tribunal is required to take into account quite diverse and what may sometimes be conflicting interests in making its determination. The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence (see Western Australia v Thomas (1996) 133 FLR 124 (‘Thomas’) at 165–166; Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169 at [37]).
The Tribunal has taken the approach that there is no burden or onus of proof on a party to satisfy the Tribunal that the proposed future act should or should not be done. The Tribunal is not bound by the rules of evidence (s 109(3)) and adopts a commonsense approach to evidence. So, for example, where facts may be peculiarly within the knowledge of a party to an issue that party might be expected to produce evidence as to those facts. That does not mean that the party bears an evidential onus of proof. The parties have an evidentiary choice to lead or not lead evidence on a particular issue. It is for the parties to present all the evidence readily available to them and for the Tribunal to examine the available material. A party’s failure to produce evidence as to facts peculiarly within its knowledge may lead to an unfavourable inference being drawn when the Tribunal, as an administrative body, applies its commonsense approach to the evidence. In other words, if parties fail to produce such evidence, they cannot complain if the Tribunal gives little or no weight to their contentions. Although the Tribunal can, in appropriate cases, make its own inquiries, it is not under a general obligation to do so. As a matter of general practice, where (as in this case) parties are represented before the Tribunal, it would not do so (see Thomas at 155–163; also Western Australia/Judy Hughes and Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of the Gnulli/Rough Range Oil Pty Ltd, [2004] NNTTA 108 at [18], [19] and [49]).
As noted earlier ([13]), the native title party provided a Statement of contentions and five annexures. Those annexures comprised a copy of the s 29 notice published in the Koori Mail, Application Information and Extract from the Register of Native Title Claims in relation to the Karingbal #2 claim, an Overlap Analysis Report prepared by the Tribunal showing among other things the extent of overlap between the area covered by the Karingbal #2 claim and the area covered by the proposed tenement, a copy of the draft Meeting Report for the 9 December 2011 meeting between the native title party and the grantee party, and Mr McGann’s email message to Mr Lavery on 9 December 2011. All of the material, together with Mr Redmond’s Affidavit, relates to matters already considered in these reasons for determination. But for references in the Statement of Contentions about the contents of the Ancillary Agreement, none of that material relates to or is evidence about the criteria listed in s 39(1). Consequently, I will proceed to deal with those criteria on the basis of the evidence provided by either or both of the other parties.
The native title party proceeded on the basis that either there would be a consent determination or that the various terms of the Ancillary Agreement ‘cumulatively deal with most of the matters contemplated by the enumerated criteria’ in s 39(1). For reasons outlined above, the Tribunal is proceeding to consider each of those criteria and will have regard to the contents of the Ancillary Agreement to the extent that they are relevant.
Where the Ancillary Agreement does not deal with any of these criteria, the Tribunal will proceed without the benefit of evidence from the native title party. The principles involved in making a determination in the absence of evidence from the native title party are enunciated in future act determinations including Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area [2009] NNTTA 137 at [19]–[21], Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland [2006] NNTTA 3 (‘Gugu Badhun’) especially at [15]–[17], and The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19 (‘Griffin Coal’) especially at [7]–[10].
As the Act makes clear and those decisions show, following acceptance of a future act determination application (ss 75, 76, 77) the Tribunal ‘must’ hold an inquiry into it (s 139(a)); ‘must’ make a determination that the act must not be done or may be done with or without conditions (s 38(1)); and, in making its determination, ‘must’ take into account certain criteria set out in s 39. The Tribunal ‘must’ take all reasonable steps to make a determination in relation to the act ‘as soon as practicable’ (s 36(1)).

[100] Proper consideration of some of the criteria in s 39 will almost certainly require evidence of which only the native title party is aware and which only the native title party can provide. For example, the Tribunal is directed to consider the effect of the future act on the enjoyment by the native title parties of their registered native title rights and interests (s 39(1)(a)(i)), the way of life, culture and traditions of the native title parties (s 39(1)(a)(ii)), and any area or site on the land of particular significance to the native title parties in accordance with their traditions (s 39(1)(a)(v)). Further, the Tribunal must take into account the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the relevant land that will be affected by the future act (s 39(1)(b)). Although s 39 is drafted in mandatory terms, it only compels the Tribunal to take into account any evidence before it relating to such matters. The section does not prohibit the making of a determination in the absence of such evidence.

[101] The Tribunal must act on the basis of relevant and probative evidence which ordinarily will be provided by the parties. As noted earlier, there is no onus of proof as such, but a commonsense approach to evidence means that parties will produce evidence to support their contentions particularly where facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence, the Tribunal is normally entitled to proceed to make a determination without it (see Gugu Badhun at [17]). In the present case, the native title party has been legally advised.

Non-native title interests in and uses of the land concerned.

Because the evidence in relation to the matters referred to in s 39(2) is relevant to the consideration of some criteria in s 39(1), it is appropriate to set out that evidence here.

[103] The Government party notes that the area covered by the proposed tenement has been subject to extensive prior exploration, with a number of authorities to prospect and exploration permits for minerals and coal having been granted over the area. A table provided by the Government party as Annexure 6 to its statement of contentions, ‘Prior Tenements overlapping ATP 756’, lists 33 ATPs granted between May 1941 and October 2003 and expiring between April 1951 and October 2007 respectively. It also lists five EPMs granted between 1965 and 1984, and four Exploration Permits for Coal (‘EPCs’) granted between February 1968 and October 2007. An accompanying map, ‘ATP 756 and prior tenements in the area’ (Annexure 7) shows the geographic extent of prior tenements in relation to the area covered by the proposed tenement as well as adjoining areas inside the boundary of the Karingbal #2 claim.

[104] The area of the proposed tenement is currently subject to ML 70307, MDL 227, and 22 exploration permits for coal (some of which have expired but for which renewal applications have been lodged). Those tenements are listed in a table, ‘Current Tenements overlapping ATP 756’, and their locations are shown on a map ‘ATP 756 and current tenements in the area’, provided by the Government party as Annexures 8 and 9 to its statement of contentions.

[105] The area of the proposed tenement is subject primarily to leasehold and freehold interests. There are also areas of State Forest and National Parks. The table ‘Land Tenures within ATP 756’ and the map ‘ATP 756 & Land Tenures’ provided by the Government party (Annexures 10 and 11), show that:

(a)there are 14 freehold parcels
(b)there are four areas of State Forest, and three areas of National Park
(c)the leased areas comprise nine Special Leases, four Grazing Homestead Freeholding Leases, nine Grazing Homestead Perpetual Leases, six Term Leases, four Pastoral Holdings, four Preferential Pastoral Holdings, and one Non Competitive Lease
(d)there are two areas where a registered right or interest over a parcel of land is defined as below a depth or to a depth below the surface of the earth.

[106] According to the Government party, it is estimated that native title has been extinguished over approximately 30 per cent of the land subject to the proposed tenement, due to interests of a kind that prima facie wholly extinguish native title rights or interests having been granted over that area.

[107] The State is not aware of any Aboriginal community on, or within the vicinity of, the proposed tenement.

The effect of the act on the enjoyment by the native title parties of their registered native title rights and interests – s 39(1)(a)(i)

[108] The registered native title rights and interests of the native title party are recorded on the Register of Native Title Claims. In those parts of the claim area where exclusive possession is not recognised, the registered claimed native title rights and interests are:

[136] Subparagraph 39(1)(a)(v) focuses on sites of ‘particular significance’. In Cheinmora v Striker Resources NL ((1996) 142 ALR 21 (‘Cheinmora’) at 34-5) Carr J stated in relation that expression:

It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. ... If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word ‘particular’ out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.

Although Carr J was dealing with the use of the expression in s 237 of the Act, the passage has been endorsed by the Tribunal as also providing the correct understanding of its use in s 39(1)(a)(v) (see e.g. Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46 at [83], [84]; Jax Coal Pty Ltd v Smallwood and Others (2011) 260 FLR 99 at [69]).

[137] The threshold question is whether there are any areas or sites of ‘particular significance’ to the native title parties ‘in accordance with their traditions’ on the land or waters within the area of the proposed tenements. If there are such areas or sites it will be necessary to consider what effect (if any) the proposed future acts would have on any such area or site.

[138] According to the Government party, a search by the State of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register identified Aboriginal cultural heritage sites within the area of the proposed tenement. It is not, however, possible to conclusively guarantee the accuracy of these recordings (in particular, the longitude and latitude location description for each site).

[139] With those qualifications in mind, I note that the results of that search are set out in Annexure 12 to the Government party’s contentions. In summary they give the location of 103 separately identified Aboriginal heritage sites which were recorded on various dates between December 1964 and August 2011. The ‘attribute’ of each site is listed. Those attributes are grinding groove, painting, artefact scatter, stone arrangement, engraving, burial, scarred/carved tree, resources area, quarry, contact site, or cultural site. Some sites are listed as having two, three or four of these attributes. The Aboriginal party is listed for each site: Bidjara People for 103 of the sites, Karingbal People #2 for 44 of those sites.

[140] The Government party submits that although sites and artefacts were identified from the search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register, this does not establish that they are, or are not, of ‘particular significance’ to the native title party in terms of being ‘of special or more than ordinary significance to the native title holders in accordance with their traditions’ (see Cheinmora at 34–5, and Iman at [69]–[73]).

[141] The Government party is not aware of any area or site of particular, as opposed to ordinary, significance to the native title party that would be affected by the proposed tenement, and suggests that the native title party would be in a better position to comment on these matters.

[142] In any event, the Government party contends that the grant of the proposed tenement is not likely to interfere with areas or sites of particular significance to the native title party because of the operation of the PGPSA, the EPA and the ACHA on the activities that may be undertaken pursuant to the proposed tenement (see [112]–[116] above).

[143] The native title party refers to Schedule 3 of the Ancillary Agreement which provides that the parties intend to be bound by a CHMS for the purpose of managing the impact of ATP 756 activities on Aboriginal Cultural Heritage. The CHMS sets out comprehensive cultural heritage protection provisions, including provisions relating to proposed surveying, monitoring, salvage and storage of cultural heritage items, skeletal material, cultural heritage inductions and training programs, and payments for cultural heritage surveys. The native title party also contends that the cultural heritage surveys and clearances allowed for in the Ancillary Agreement will assist the native title party in protecting any areas or sites of particular significance.

[144] The grantee party submits that, to the extent that there are sites of ‘particular significance’, the grantee party will deal with such sites in accordance with the CHMS.

[145] Insofar as it is relevant to the criterion in s 39(1)(a)(v), I confirm that the Ancillary Agreement contains a detailed CHMS in Schedule 3 and provides a dispute resolution scheme for a dispute that relates to a matter in the CHMS. It also provides for a Karingbal/QGC Native Title Committee to be a forum for, among other things, coordination of cultural heritage management in accordance with the CHMS at Schedule 3.

[146] Conclusion: Although there is evidence that there are numerous already identified Aboriginal cultural heritage sites located on the area covered by the proposed tenement, there is no evidence to demonstrate that any of them are areas or sites of ‘particular significance’ to the native title party in accordance with their traditions. If there are such areas or sites, it seems likely that, by virtue of the combined operation of the ACHA and other legislation, the conditions in the Environmental Authority and Schedule 3 to the Ancillary Agreement, the grant of the proposed tenement would have little, if any, effect on such areas or sites that are of particular significance to the native title party in accordance with their traditions.

The interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act – s 39(1)(b)

[147] The native title party did not address this criterion directly, but referred to the Ancillary Agreement as dealing with the ‘sort of matters dealt with’ and ‘most of the matters contemplated by’ the s 31(1) criteria.

[148] The grantee party submits that the interests, proposals, opinions or wishes of the native title party and Bidjara People broadly support the grant of the proposed tenement. The grantee party notes that it has entered into a Section 31 Deed and Ancillary Agreement with the Bidjara People. It contends that there is uncontested evidence that the grantee party has negotiated for some time with the native title party and there is general support for the grant of the proposed tenement.

[149] The grantee party’s submission in relation to the native title party is said to be supported by the following evidence:

(a)prior to the meeting of 9 December 2011, each member of the native title party had agreed to enter into a Section 31 Deed and Ancillary Agreement with the grantee party
(b)each member of the native title party signed the Section 31 Deed and Ancillary Agreement on the basis of the undertaking in relation to Mr Albury and Mr Stapleton obtaining independent legal advice from a further legal representative, Mr Lavery
(c)at a meeting between Mr Wilson of the grantee party, Mr Albury and Mr Stapleton on 22 November 2012, Mr Albury and Mr Stapleton confirmed they no longer intended to obtain legal advice from Mr Lavery
(d)the remaining members of the native title party (Marlene Leisha, Sharleen Leisha, and Carol McLeod) consent, and have always consented to, the grant of the proposed tenement
(e)the Ancillary Agreement and CHMS provide considerable benefits for the native title party and the Bidjara People.

[150] Insofar as it is relevant to the criterion in s 39(1)(b), I note that the Ancillary Agreement provides for the establishment of a Karingbal/QGC Native Title Committee to be a forum to deal with a range of matters.

[151] Conclusion: In the circumstances of this case, and despite the absence of specific contentions from the native title party, it appears that any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land covered by the proposed tenement are, or will be, accommodated by the terms of the Ancillary Agreement including the CHMS.

The economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area – s 39(1)(c)

[152] The only contentions and evidence directly in relation to this criterion came from the grantee party.

[153] In making its submission, the grantee party refers to the determination in Iman in which the Tribunal applied the following factors in Gugu Badhun (at [70]–[73]):

(a)how the proposed future act will impact on the economies and persons specified
(b)the ‘significance’ of granting the right to mine (act) must be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated, and
(c)the significance of the proposed act to Indigenous persons living within close proximity to the proposed tenements. For example, it may be that a proposed mine will generate jobs and related benefits to Indigenous Australians who live nearby whether or not they are members of the claim group.

[154] In addressing these factors, the grantee party submits that the proposed tenement is one of several tenements that QGC wishes to explore with a view to considering whether the tenement holds sufficient reserves to provide additional gas resources to support the QCLNG Project at some point in the future. The grantee party describes the Project as one of Australia’s largest capital infrastructure projects, involving US$20.4 billion of investment from 2010–2014 reflected in economic growth for the local community, Queensland and the nation generally. The QCLNG Project is said to involve investment and economic growth including the following:

(a)an average of 7,000 jobs during construction and approximately 1,500 permanent staff for operations
(b)in the 10 years to 2021, it is estimated that the QCLNG Project will boost the Queensland economy by up to $32 billion
(c)$1 billion a year in royalties and taxes for the Queensland and Australian Governments
(d)the QCLNG Project was the first resources project in Queensland to introduce a social impact management plan. The plan, which involves commitments of approximately $150 million by 2014, is part of the parent company of the grantee party’s strategy to maximise project benefits in the communities in which it operates. The plan is aimed at addressing potential impacts across the project, including health and safety, local employment and training, economic development, social infrastructure and housing.

[155] Conclusion: The QCLNG Project has economic significance for Australia, the State of Queensland and the local region. However, the economic or other significance of the grant of the proposed tenement cannot be estimated by reference to the evidence before the Tribunal. It remains to be seen whether, if ATP 756 is granted and the grantee party carries out activities in accordance with it, the area covered by the proposed tenement holds sufficient reserves to provide additional gas resources to support the QCLNG Project.

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

[156] Again the grantee party refers to the Iman determination, this time for the proposition (at [82]–[83]) that the Tribunal may take into account:

(a)the public interest in developing and maintaining a vibrant mining industry which generates much-needed export income, and creates jobs and wealth for the Australian economy, and
(b)the importance that the grant of a tenement will have for the petroleum and gas industry in Queensland.

The grantee party submits that the extensive benefits referred to in [154] support its contention that there is a ‘considerable’ public interest in granting the proposed tenement.

[157] The Government party also submits that the grant of the proposed tenement would be in the public interest and quotes in support of that submission the following passage from Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, ([2012] NNTTA 31 at [108]–[109]):

Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible … to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income, and creates jobs and wealth for the Australian economy … The Tribunal accepts that the mining industry plays a pivotal role in maintaining Australia’s economic strength. The export income generated from mining is critical to the maintenance of Australia’s standard of living and its general economic health.

[158] Similarly, in Evans v Western Australia, ((1997) 77 FCR 193 at 215) RD Nicholson J stated:

Where there is evidence the proposed act will have the effect of contributing to on-going exploration essential to the health of the mining industry and the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry.

[159] As noted in Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales ([2013] NNTTA 2 at [141]-[143]), ‘public interest’ is a term to which it is difficult to give precise content. The question about what is in ‘the public interest’ will ordinarily require consideration of a number of competing arguments about, or features or facets of, the public interest.

[160] In that context, I note that the native title party says nothing in relation to this criterion.

[161] Conclusion: Having regard to the potential significance for the QCLNG Project of the reserves that might be discovered within the boundaries of the proposed tenement and the range of legislative and regulatory conditions governing operations to be carried out on the area of the proposed tenement, and in the absence of any contentions or evidence to the contrary, the grant of the proposed tenements would be in the public interest.

Any other matter that the arbitral body considers relevant – s 39(1)(f)

[162] The grantee party notes that, although s 39(1)(f) permits the Tribunal to consider a range of matters, such matters are usually related to environmental concerns (see Iman at [84]). Accordingly, the grantee party submits that it has, under the Ancillary Agreement, agreed to comply with the environmental protection procedures required by all applicable laws relevant to the Project and the relevant environmental authority for the tenements (including the proposed tenement). To the extent that QGC is legally required to notify any other party of an amendment to the relevant environmental authority or of a breach for the environmental authority, QGC must also notify the Karingbal/QGC Native Title Committee.

[163] Insofar as it is relevant to the criterion in s 39(1)(f), I note that the Ancillary Agreement contains the provision referred to by the grantee party.

[164] Conclusion: The statutory provisions governing the activities to be carried out by the grantee party in relation to the area covered by the proposed tenement, and the relevant provisions of the Ancillary Agreement, provide a regime in which any environmental concerns will be addressed.

Summary of conclusions

[165] In summary, on the basis of evidence before the Tribunal and the contentions of the parties, I have concluded that:

(a)In the absence of evidence from the native title party about the effects of the grant of the proposed tenement on the registered native title rights and interests, but having regard to:
i.    the current and previous interests in and uses of the area covered by the proposed tenement
ii.   the regulatory regime that would govern the activities in relation to the proposed tenement, and
iii.    the relevant provision of the Ancillary Agreement,

the grant of the proposed tenement subject to compliance by the grantee party with the Ancillary Agreement will have little, if any, effect on the enjoyment by the native title party of their registered native title rights and interests.
(b)In the absence of any evidence from the native title party about the effects of the grant of the proposed tenement on the way of life, culture and traditions of the native title party, but having regard to:
i.    the current and previous interests in and uses of the area covered by the proposed tenement
ii.   the regulatory regime that would govern the activities in relation to the proposed tenement, and
iii.    the relevant provision of the Ancillary Agreement,
there is no evidence from which the Tribunal could conclude that the grant of the proposed tenement, subject to compliance by the grantee party with the Ancillary Agreement, would adversely affect the way of life, culture and traditions of the native title party.
(c)There is no evidence to demonstrate that the grant of the proposed tenement will have an adverse effect on the development of the social, cultural and economic structures of the native title party, or that it will result in significant growth and development of those social, cultural and economic structures.
(d)There is no evidence that the grant of the proposed tenement would significantly restrict the native title party’s freedom of access to the land concerned and their freedom to carry out rights, ceremonies or other activities of cultural significance on the land in accordance with their traditions. Despite the history of land tenure and use of the land by people other than the native title party and the contention of the grantee party that the grant would not impact on that freedom, it is clear from relevant parts of the Ancillary Agreement that the grantee party contemplates at least the possibility that such freedoms might be disrupted or interfered with. However, if the terms of the Ancillary Agreement are observed, any such disruption or interference should be minimised.
(e)Although there is evidence that there are numerous already identified Aboriginal cultural heritage sites located on the area covered by the proposed tenement, there is no evidence to demonstrate that any of them are areas or sites of ‘particular significance’ to the native title party in accordance with their traditions. If there are such areas or sites, it seems likely that, by virtue of the combined operation of the ACHA and other legislation, the conditions in the Environmental Authority and Schedule 3 to the Ancillary Agreement, the grant of the proposed tenement would have little, if any, effect on such areas or sites that are of particular significance to the native title party in accordance with their traditions.
(f)it appears that any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land covered by the proposed tenement are, or will be, accommodated by the terms of the Ancillary Agreement including the CHMS.
(g)The QCLNG Project has economic significance for Australia, the State of Queensland and the local region. However, the economic or other significance of the grant of the proposed tenement cannot be estimated by reference to the evidence before the Tribunal. It remains to be seen whether, if ATP 756 is granted and the grantee party carries out activities in accordance with it, the area covered by the proposed tenement holds sufficient reserves to provide additional gas resources to support the QCLNG Project.

(h)Having regard to the potential significance for the QCLNG Project of the reserves that might be discovered within the boundaries of the proposed tenement and the range of legislative and regulatory conditions governing operations to be carried out on the area of the proposed tenement, and in the absence of any contentions or evidence to the contrary, the grant of the proposed tenements would be in the public interest.
(i)The statutory provisions governing the activities to be carried out by the grantee party in relation to the area covered by the proposed tenement, and the relevant provisions of the Ancillary Agreement, provide a regime in which any environmental concerns will be addressed.

Determination

[166] The determination of the Tribunal is that the grant of Authority to Prospect 756 to OME Resources Australia Pty Ltd may be done subject to the condition that OME Resources Australia Pty Ltd and the native title party comply with the terms of the Ancillary Agreement between QGC Pty Limited ACN 089 642 553, Karingbal #2 RNTC and Karingbal People RNTC which was executed by the living persons who comprise the native title party on 9 December 2011.

Graeme Neate

President