Moore v Mungeranie

Reported at (2005) 193 FLR 62

NATIONAL NATIVE TITLE TRIBUNAL

Charlie Moore & Ors (Yandruwandha/Yawarrawarrka ) and David Mungeranie & Ors (Dieri)/Eagle Bay Resources NL/South Australia, [2005] NNTTA 53 (28 July 2005)

Application No: SF05/1

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

- and -

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

Charlie Moore, Fredrick Brown, Leslie Harris, Aaron Paterson, Anita Paterson, Fay Nicholls and Theresa Bottrell on behalf of the Yandruwandha/Yawarrawarrka Native Title Claim

- and -

David Mungeranie, Irene Kemp, Rhonda Kennedy-Gepp, Sylvia Stewart, Edward Landers and Nellie Edge on behalf of the Dieri Native Title Claim

(native title parties)

- and -

EAGLE BAY RESOURCES NL (grantee party)

- and -

STATE OF SOUTH AUSTRALIA (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 28 July 2005

Hearing date: 15 July 2005

Government Party: Ms Emily Strickland, Crown Solicitors Office

Native Title Party: Mr Michael Steele, Hunt & Hunt Lawyers
Mr Stephen Kenny, Camatta Lempens Pty Ltd

Grantee Party: Mr Chris Humphry, Hunt & Humphry

Catchwords: Native title – future act – consent conjunctive determination - petroleum exploration licence – production licence – regulated resource – regulated substance - appointment of an Administrator under the Aboriginal Councils and Associations Act – three of seven persons comprising the applicant in one native title party fail to sign agreement – native title parties as a whole consent to the determination - difference between hard rock exploration and mining and petroleum and gas exploration and production – principles governing conjunctive determinations - determination that both the act and associated later future acts may be done with conditions.

Legislation: Aboriginal Councils and Associations Act 1976 (Cth) ss 71, 75

Acts Interpretation Act 1901 (Cth) s 23
Native Title Act 1993 (Cth) ss 24MD, 26D, 29, 30A, 31, 35, 36, 38, 39, 43, 61, 62A, 66B
Petroleum Act 2000 (SA) ss 4, 21

Cases: Ankamuthi People v Queensland (2002) 121 FCR 68

Arc Energy Limited/Councillor/Western Australia [2004] NNTTA 88
BHP Billiton Minerals Pty Ltd/Abdullah/Western Australia [2005] NNTTA 40
Button v Chapman [2003] FCA 861
Cable Sands (WA) Pty Ltd/Nannup/Western Australia [2002] NNTTA 84
Champion/Siberia Mining Corporation Ltd/Western Australia [2004] NNTTA   26
Champion/New Hampton Goldfields Ltd/Western Australia [2004] NNTTA 82,   Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 214   ALR 306
Councillor/Western Australia/Victoria Diamond Exploration Pty Ltd [2004]   NNTTA 38
Daniel v Western Australia (2002) 194 ALR 278
Dempster/Western Australia/Bayside Abalone & Anor WF99/1, 27 August   1999, Deputy President Franklyn
Dieri People v South Australia (2003) 127 FCR 364
Evans v Western Australia (1997) 77 FCR 193
Dimer/Western Australia/Boyes [2003] NNTTA 117
Dixon v Northern Territory (2001) 166 FLR 29
Empire Oil Company (WA) Limited/Western Australia/Borinelli [2003]   NNTTA 118
Fejo v Northern Territory (1998) 195 CLR 96
Kokatha v South Australia [2005] FCA 836
Mabo v Queensland (No 2) (1992) 175 CLR 1
Minister for Mines (WA)/Evans/Townson Holdings NL [1998] NNTTA 15
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Oriole Resources Ltd and Plutonic (Baxter) Pty Ltd/Lynch/Western Australia   [2002] NNTTA 101
Re Alcoota Land Claim No 146 (1998) 82 FCR 391
Re Koara People (1996) 132 FLR 73
Red Mountain Energy Pty Ltd/Hill/Western Australia [2004] NNTTA 103
Taylor/Queensland/Freehold Mining Limited and Western Metals Copper   Limited (Receivers and Managers Appointed) [2004] NNTTA 80
Tilmouth v Northern Territory (2001) 109 FCR 240
Victorian Gold Mines NL v Victoria (2002) 170 FLR 1
Walley v Western Australia (1996) 67 FCR 366
Ward v Northern Territory (2002) 169 FLR 303
Western Australia v Hayes (2001) 163 FLR 384
Western Australia v Jidi Jidi Corporation (2002) 169 FLR 470
Western Australia v Thomas (1999) 164 FLR 195

REASONS FOR FUTURE ACT DETERMINATION

Background

On 13 October 2004, the State of South Australia (the government party) gave notice under section 29 of the Native Title Act 1993 (Cth) of its intention to grant Exploration Licence PEL 182 (the proposed tenement) pursuant to the Petroleum Act 2000 (SA) to Eagle Bay Resources NL (the grantee party).
The notice stated that the Exploration Licence would authorise the applicant to explore for petroleum for a term of 5 years together with a right to renew for a further 5 year term. Importantly the notice also stated that the Petroleum Act 2000 provides the holder of an Exploration Licence a right to apply for a Production Licence where a discovery that warrants production is made. Production Licence rights were stated to include the right to undertake regulated activities under the Petroleum Act 2000 to enable the petroleum to be produced, processed, transported and marketed.
Section 21 of the Petroleum Act 2000 provides:
(1) An exploration licence authorises the licensee to carry out in the licence area –
(a) exploratory operations for regulated resources; and
(b) operations-
(i) to establish the nature and extent of a discovery of regulated resources; and
(ii)to establish the feasibility of production and appropriate production techniques.
(2) A licensee who holds an exploration licence is entitled, subject to this Act, to the grant of a retention licence or a production licence for a regulated resource discovered in the licence area.

A “regulated resource” is defined in section 4 to mean:
(a) a naturally occurring underground accumulation of a regulated substance; or
(b) a source of geothermal energy; or
(c) a natural reservoir.

A “regulated substance” is defined in section 4 to include petroleum, hydrogen sulphide, nitrogen, helium, carbon dioxide or any substance declared by regulation to be a substance to which the Act applies.

The proposed tenement is located in the north east of South Australia in the vicinity of the Coongie Lakes and covers an area of approximately 1745 square kilometres.
The proposed tenement is located within the boundaries of two registered native title determination applications:
(a) the Dieri Native Title Claim – SAD6017/98; and
(b) the Yandruwandha/Yawarrawarrka Native Title Claim – SAD6024/98;

(the native title parties).

The Dieri native title claim only overlaps some 98 square kilometres of the proposed tenement area. In contradistinction, the Yandruwandha/Yawarrawarrka native title claim overlaps 1,651 square kilometres of the proposed tenement, in effect almost the entire area.

On 4 July 2005, the grantee party made an application (Form 5) pursuant to section 35 of the Act for a future act determination under section 38. The application was made, in conformity with section 35(1)(a), more than 6 months after the notification day.
The proposed future act described in paragraph 9 of the Form 5 filed by the grantee party included not just the grant of PEL 182 but “for the purpose of section 26D(2)(c) of the NTA, if a retention licence, production licence, associated facilities licence or pipeline licence is granted over the area of PELA 182 under the Petroleum Act 2000 (SA), Sub-Division P of Division 3 of Part 2 of the NTA will not apply to those grants.”
In its section 35 application, the grantee party stated that the Dieri native title party and the other negotiation parties (see s 30A) had reached agreement. However, for reasons set out below, agreement had not been finalised with the Yandruwandha/Yawarrawarrka native title party (the YY native title party).
Mr Michael Steele, a consultant to Hunt & Hunt solicitors, who has acted on behalf of the YY native title party since March 1999 filed with the Tribunal an Affidavit dated 8 July 2005. Mr Steele deposed that on 2 August 2001 the Yandruwandha/Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) (YYTLOAC) was incorporated under the Aboriginal Councils and Associations Act 1976 (Cth), and since that time he has acted on its behalf. On 18 April 2005 Mr Lindsay Roberts was appointed the Administrator of YYTLOAC by the Registrar of Aboriginal Corporations under s 71 of the Aboriginal Councils and Associations Act 1976. An Administrator is responsible for the conduct of the affairs of a corporation and, in addition, has the functions and duties of the public officer – s 75. It is clear from the plain wording of s 75 that an Administrator is vested with wide powers and discretions. The scope of those powers was considered by the Full Federal Court in Re Alcoota Land Claim No 146 (1998) 82 FCR 391. Northrop, Cooper and Mansfield JJ said (at 410 – 412):
It was not suggested before us, nor could it reasonably have been, that the administrator, on appointment, was able to conduct the affairs of Alcoota and carry out the functions and duties of the public officer other than in accordance with the rules of the Alcoota. In our view, the effect of ss 73 and 75 of the ACA Act is that an administrator, on appointment, has such powers to conduct the affairs of the corporation as may have been exercised by the public officer and the governing committee prior to the appointment. That is, such powers as are provided for by the rules and the ACA Act to those offices, as supplemented by any special or additional powers conferred on the administrator by the ACA Act or by delegation of the Registrar… .
There can be little doubt that an administrator has power to execute documents on behalf of the corporation to which he or she is appointed provided that it is necessary to do so in the conduct of the affairs of the corporation or to carry out a statutory delegated function of the administrator and provided it is done for the purposes of carrying out a statutory or delegated function or for a purpose of the corporation having regard to its object or objects and its rules… .
When one has regard to the broad range of circumstances in which an administrator may be appointed pursuant to s 71 of the ACA Act, to the fact that the conduct of the affairs of the corporation resides in the administrator on appointment and to the fact that the words ‘affairs of the corporation’ appearing in s 75 of the ACA Act must be given a wide interpretation (Johns v Connor (1992) 35 FCR 1 at 12), it is difficult to construe the ACA Act as containing any limitation upon an administrator’s power to consent for the purposes of s50(2C) of the Land Rights Act. Any such limitation is to be found in the rules of Alcoota, and in particular, by reference to the object and the powers of the corporation to be exercised by the governing committee.

It follows that an Administrator exercises the same powers, and is subject to the same limitations, as the governing committee and the public officer were prior to the appointment of the Administrator. For the purposes of this matter, an Administrator is put in the same position as the governing committee of the YYTLOAC and can give such consents and agree to such course of action as the governing committee could have. No party raised any issue with the appointment of the Administrator, nor was any suggestion made that the Administrator and his legal representative were in any way subject to any legal limitations other than those set out in the Aboriginal Councils and Associations Act 1976 and by the Constitution of the YYTLOAC.

The YYTLOAC represents the YY native title party in relation to future act negotiations. Mr Steele deposed that it is a term of the YYTLOAC Constitution that those people comprising the applicant of the YY native title party act in compliance with decisions taken by the YYTLOAC committee.

[10] Of particular relevance, Mr Steele deposed as follows:

5. Between 2001 and the present time, the Yandruwandha/Yawarrawarrka Native Title Claim Group and YYTLOAC has entered into 19 Deeds and Agreements with various petroleum exploration companies with respect to exploration and production in the claim area. Those Deeds and Agreements were the result of negotiations pursuant to section 31 of the Native Title Act and were signed by all those people who comprised the applicant being Charlie Moore, Anita Paterson, Aaron Paterson, Fredrick Brown, Fay Nicholls, Theresa Bottrell and Leslie Harris. The established procedure for providing instructions with respect to those 19 Deeds and Agreements was that advice was given by me to the YYTLOAC committee and the committee provided instructions to me. The 19 Deeds and Agreements were then signed by those people who comprised the applicant and by members of the committee and the seal of YYTLOAC was affixed. In some cases those people who comprised the applicant were also members of the committee. I explained the contents of the documents to those people who comprised the applicant but who were not members of the committee before they signed same. The fact of execution of the Deeds and Agreements was reported to the whole community at the next AGM.
6. The decision making and reporting to the community process referred to in the preceding paragraph was adopted because members of the Claim Group and members of YYTLOAC are very widespread throughout Australia and it is not practical to refer matters such as that to the whole community because it is too expensive to do so. For example, I am informed and verily believe that the last AGM held in Adelaide on 28 January 2005 cost in excess of $70,000.00.

[11] The section 29 notice was brought to the attention of Mr Steele who in turn advised both the persons comprising the Applicant of the YY native title party and all members of the YYTLOAC committee. A meeting of both groups of persons was due to be held in Brisbane on 14 and 15 October 2004 to discuss the notice. That meeting proceeded, but as Mr Steele was not present, it was chaired by a Mr Andrew Beckworth from the Aboriginal Legal Rights Movement Inc.

[12] Mr Steele deposes that he was informed that the section 29 notice was discussed at the meeting, and a resolution was passed to commence negotiations with the grantee party. All members of the YYTLOAC are said to have attended that meeting as did all of the persons comprising the Applicant of the YY native title party with the exception of Theresa Bottrell, Fay Nicholls and Fredrick Brown

[13] Nine persons collectively comprise the Applicant of the YY native title party. One of the persons is deceased and the eight surviving persons are as follows:

(a)Charlie Moore;
(b)Fredrick Brown;
(c)Leslie Harris;
(d)Aaron Paterson;
(e)Anita Paterson;
(f)Fay Nicholls; and
(g)Theresa Bottrell.

[14] Mr Steele deposes that both Theresa Bottrell and Fay Nicholls refused to attend the Brisbane meeting saying that they were no longer interested in the native title claim. Mr Brown was said to be unable to attend the meeting because of work commitments. On 19 October 2004 Mr Steele wrote to each of these persons seeking advice whether they were prepared to negotiate in good faith with the grantee party and sign documents should negotiations be successful. Mr Steele deposes that on 28 October 2004 he spoke by telephone to both Ms Bottrell and Ms Nicholls. Both advised Mr Steele that they would not negotiate in relation to the proposed tenement and would not sign any documents. Both re-iterated that they were not interested in the native title claim, but Mr Steele deposes that Ms Nicholls said that she would sign documents if she was paid $20,000.

[15] No materials were filed by either Ms Bottrell or Ms Nicholls, and neither person attended the Conference I convened on 15 July 2005. In the absence of any contrary material before the Tribunal, I accept the accuracy of the events described in Mr Steele’s affidavit.

[16] Mr Steele deposes that on 28 October 2004 he spoke to Ms Paula Brown, the wife of Fredrick Brown, who advised him that her husband was prepared to negotiate with respect to the proposed tenement and would sign any necessary documents.

[17] On 28 January 2005 a meeting was held in Adelaide and a series of resolutions were passed to authorise new persons to comprise the Applicant of the YY native title party. Mr Steele deposes that the newly authorised applicant comprised the same persons previously authorised with the exception of Fay Nicholls, Theresa Bottrell and a deceased applicant. Due to lack of funding, no application has yet been made to the Federal Court to replace the applicant pursuant to the resolutions passed at the 28 January 2005 meeting.

[18] Pursuant to the resolutions passed at the Brisbane meeting, and further to instructions from the Administrator, Mr Steele negotiated with the grantee party and the government party. In doing so Mr Steele was providing ongoing advice on the progress of the negotiations to the Administrator.

[19] The Administrator, Mr Roberts, also filed an affidavit dated 6 July 2005 in which, inter alia, he describes a conversation he had with Mr Leslie Harris:

On 22 May 2005 I was contacted by Leslie Harris, a member of the applicant. He insisted that I instruct Sean Freeman, Archaeologist appointed by Michael Steele to conduct a Work Area Clearance survey for two petroleum exploration companies due to commence that day, to include him as a member of the survey team. In response to that demand I spoke to Sean Freeman. He advised me that he had sought advice from Chris Johnson, the Yandruwandha Work Area Clearance Coordinator who was responsible for deciding which Yandruwandha people would comprise the survey team, who advised him that Leslie Harris should not be included in the Work Area Clearance survey team. Sean Freeman also advised me that he had also sought advice from Michael Steele who had told him that YYTLOAC had a contract with the two petroleum exploration companies which limited the size of the survey team and which did not permit the inclusion of Leslie Harris. Acting on this advice I advised Leslie Harris that he would not be included in the Work Area Clearance survey team. Leslie Harris was clearly angry and made certain threats to me, including that, because of that decision by me, he would not sign any documents relating to PELA 182.

Mr Steele deposed that he had a telephone conversation with Mr Harris on 22 June 2005, during which Mr Harris is said to have repeatedly refused to say whether he would sign documents in relation to the proposed tenement. Since then Mr Harris has been uncontactable.
In the week commencing 6 June 2005 Mr Steele attended a series of meetings at Innamincka. Present were six of the eight former members of the YYTLOAC committee as well as the Administrator. At those meetings Mr Steele deposes that he received clear instructions to accept a proposal made by the grantee party and the government party as set out in a Land Access Deed provided by the grantee party. This account of the Innamincka meetings is corroborated by the Administrator in his Affidavit. The Administrator deposes that he attended those meetings when Mr Steele explained to him and the six members of the former YYTLOAC committee the proposed Land Access Deed. The Administrator deposes that the committee members advised that they would like him to accept the terms and conditions as set out in the Deed. Mr Steele also deposes that it was understood that acceptance meant that the YY native title party agreed:

(a)to the grant of the proposed tenement;
(b)to the subsequent grant of other petroleum titles to the grantee party in the area of the proposed tenement;
(c)that the right to negotiate would not apply to the grant of any subsequent petroleum titles; and
(d)to consent to a determination under section 38 of the Native Title Act 1993 approving the grant of the proposed tenement

Prior to those meetings Mr Steele had provided advice to the Administrator to accept an offer from the grantee party. The Administrator deposes that he discussed the matter with both Mr Steele and subsequently with the Registrar of Aboriginal Corporations. The Administrator deposes that he determined, in consultation with Mr Steele and the Registrar, to have regard to the established practice and to take the advice of the members of the former committee and act on that advice without reference to the matter to the wider community. However, the Administrator deposes that he advised the YYTLOAC committee by letter dated 14 June 2005 of the negotiations and his intention to execute any necessary documents by 30 June 2005 unless there was a significant expression of disapproval. He deposes that he received no negative response to this letter.
Significantly, the Administrator personally met those persons comprising the Applicant who signed the Land Access Deed. Mr Roberts deposes that he met Charlie Moore and Anita and Aaron Paterson in Rockhampton on 30 June 2005 and with Fredrick Brown in Bucca on 1 July 2005. At both meetings he explained the situation to the abovementioned persons, after which they each signed five copies of the Deed. Subsequently, on 4 July 2005 the Administrator signed the Deed and affixed the seal of the YYTLOAC.
Each of the legal representatives for the negotiation parties executed a Minute of Consent Determination under Section 38 of the Native Title Act and filed it with the Tribunal. The Minute reads as follows:
1. The Government Party has complied with the requirements of section 31(1)(a) of the Native Title Act 1993 (Cth).
2. The Government Party, the Native Title Parties and the Grantee Party have complied with the requirements of section 31(1)(b) of the Native Title Act 1993 (Cth).
3. The Government Party, the Native Title Parties and the Grantee Party consent to a determination under section 38 of the Native Title Act 1993 (Cth) that:
(a) the act being the grant of petroleum exploration licence application 182 under the Petroleum Act 2000 (SA) may be done;
(b) Sub Division P of Division 3 of Part 2 of the NTA will not apply to the issue of any retention licences, production licences, associated facilities licences or pipeline licences (by whatever name called) subsequent to the grant of petroleum exploration licence application 182 subject to the Grantee Party complying with the terms of the Aboriginal Heritage Protection Protocol contained in the Schedule to this determination.
Since at least 1998, the Tribunal has frequently determined that it has the power to make a future act determination pursuant to section 38 with the consent of the negotiation parties without conducting a detailed inquiry, provided that it is appropriate to do so in the circumstances. The legal underpinning of future act consent determinations was outlined by Deputy President Sumner in Minister for Mines (WA)/Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998) (unreported). Deputy President Sumner made these observations, with which I am in agreement:
In my view there are a number of compelling reasons for concluding that it is within the power of the Tribunal to make any one of the specified determinations with the consent of the parties. Firstly, the parties are given an important role in the right to negotiate inquiries (see Western Australia v Thomas 133 FLR 124 at 154-163. Secondly, s 109(1) says that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. It would be inconsistent with the requirements of this section for the Tribunal to be required to conduct an inquiry and obtain evidence when the parties have agreed to a consent determination. This is re-inforced by the Tribunal’s view that in ordinary circumstances it will be for the parties to produce evidence to it and that it is not normally required to seek out its own evidence about the matter in s 39.
Thirdly, s 39(1)(f) requires the Tribunal to take into account any matter that the Tribunal considers relevant. In the absence of evidence from any of the parties on the other criteria, the Tribunal can regard as relevant the fact that the parties have agreed to a consent determination and its terms. A relevant matter is the absence of evidence presented by the parties on the other matters referred to in s 39 and their consent to a determination.

The only other additional point to make is that section 39(4) specifically provides that before making its determination, the Tribunal must take into account, if all the negotiation parties consent, any issues on which agreement has been reached and need not take into account any of the matters referred to in s 39(1) to the extent that they relate to issues on which agreement has been reached. Subsection (4) was introduced by the 1998 amendments. It, like many of the other amendments made to the Act, gives a primacy to agreed, rather than litigated outcomes. The philosophy underpinning this subsection is to allow the negotiation parties maximum space to negotiate an agreed outcome, and to require the Tribunal, in its arbitral role, to take that agreement into account. In short, if the negotiation parties can reach accord the Tribunal will not normally go behind it in the exercise of arbitral discretion. Looked at from a slightly different perspective, it provides a cogent basis for the Tribunal exercising its discretion to make consent determinations under section 38 – see also Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2002) 164 FLR 361 at 369.

Accordingly, I have proceeded on the basis that it is open for the Tribunal to make a determination under section 38 on the basis that the negotiation parties have consented to that course of action. As in every instance when it is submitted by some or all of the negotiation parties that the Tribunal should make a section 38 determination, the Tribunal must independently assess the material before it and determine if it would be appropriate to do so. The factors that will be taken into account are set out below.

The inquiry

On 15 July 2005 the Tribunal convened a hearing to allow the legal representatives of the negotiation parties to make submissions as to why the Tribunal should make a consent determination of the type outlined in [24]. Prior to the hearing (on 13 July 2005) I caused an email to be forwarded to the legal representatives in which it was stated that on the materials at that time before the Tribunal I was not yet satisfied that the principles outlined in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 applied. In short, the parties were put on notice that the Tribunal was yet to be satisfied that it was appropriate to make a consent determination.
Subsequent Affidavits dated 14 July 2005 of Mr Anthony Rechner (Chairman and Managing Director of Eagle Bay Resources Pty Ltd) and Mr Barry Goldstein (Director of Petroleum, Minerals and Energy Division, Department of Primary Industries and Resources) were filed with the Tribunal.
Mr Rechner deposed to the grantee party’s proposed exploration programs, their potential impact on the subject land and waters and potential subsequent production activities. Mr Goldstein deposed to matters pertinent to making a conjunctive determination having regard to the particular circumstances relating to petroleum exploration and production.
Appearing at the hearing of 15 July 2005 were Mr Michael Steele for the YY native title party, Mr Stephen Kenny for the Dieri native title party, Mr Chris Humphry for the grantee party and Ms Emily Strickland for the government party.
Mr Humphry made the initial submissions for the negotiation parties.
At the outset Mr Humphry submitted that there were no issues concerning jurisdiction that would prevent the Tribunal dealing with the issue whether a determination could be made pursuant to section 38. The two issues raised by Mr Humphry were that more than six months had elapsed since the notification day – s 35(1)(a) – and that no negotiation party had submitted that the parties had not negotiated in good faith. As to the first of Mr Humphry’s propositions, there was no issue as more than 6 months had elapsed since the notification day of the s 29 notice. As to the second proposition, the duty to negotiate in good faith is a condition precedent to the Tribunal determining whether the future act can be done – Walley v Western Australia (1996) 67 FCR 366 at 377 per Carr J. However, in the absence of any of the negotiation parties raising the issue of good faith, there is a presumption raised by s 36(2) that there have been good faith negotiations. In fact usually a jurisdictional good faith issue only arises if one of the negotiation parties alleges bad faith and then has the burden of adducing evidence to that effect – Dempster/Western Australia/Bayside Abalone & Anor WF 99/1, 27 August 1999, Deputy President Franklyn at p 21. Only in the unusual circumstance of there being material before the Tribunal that would, if the interests of justice manifestly require, oblige the Tribunal to go behind the silence of the negotiation parties, would the Tribunal independently inquire further into this issue – Taylor/Queensland/ Freehold Mining Limited and Western Metals Copper Limited (Receivers and Managers Appointed) [2004] NNTTA 80 (7 September 2004) at [21]. In this instance there was no material produced that would cause the Tribunal to go behind the clear and unequivocal submission of each of the negotiation parties that they had negotiated in good faith. Although not raised by the legal representative of the negotiation parties, South Australia is in a different position to the other Australian States and Territories in regard to the arbitration of future act matters. In 1995 the South Australian Parliament enacted provisions in the Mining Act 1971 (SA), Land Acquisition Act 1969 (SA) and the Opal Mining Act 1995 (SA) in conformity with s 43 of the originally enacted Native Title Act 1993 which apply instead of the “right to negotiate provisions” of the Native Title Act 1993. A separate arbitral body, the Environment, Resources and Development Court, deals with matters arising under these provisions. While this separate regime applies to hard rock mining, the Commonwealth right to negotiate provisions continue to apply to petroleum and gas exploration and production and the National Native Title Tribunal remains the arbitral body for the purposes of making a section 38 determination. Accordingly I determined that there were no jurisdictional issues preventing the inquiry from proceeding.
Mr Humphry then submitted that the matter could be dealt with in either one of two ways. The first was the Tribunal making a consent determination. The second was that the Tribunal should make a “short form” determination in accordance with the approach outlined by Deputy President Sumner in Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 470. Mr Humphry submitted that there was sufficient material before the Tribunal for the making of a section 38 determination, based on an application of the section 39 criteria. The second course of action would only come into consideration if I declined to make a consent determination. On that basis I received oral submissions from the various legal representatives on the proper scope for making a consent determination.
Mr Humphry submitted that there was no question about consent so far as the Dieri native title party was concerned. He correctly drew the Tribunal’s attention to the fact that each of the persons comprising the Applicant had signed the Land Access Deed that had been entered into by the negotiation parties to signify their consent to the matters the subject of the proposed consent determination.
Mr Humphry also drew support for this proposition from the Affidavit of Mr Kenny dated 14 July 2005. Mr Kenny, a legal practitioner, has represented the Dieri native title party since 1997 and filed, on behalf of the Dieri People, their native title determination application. The manner in which the Dieri People conduct future act negotiations was usefully explained by Mr Kenny as follows:
7.The group also decided that because of the large number of Dieri People and the geographical spread of the community that they would instruct me via a Management Committee that was elected by Dieri People present at that public meeting in Broken Hill.
8.At that time they also authorized Edward Landers, Rhonda Kennedy-Gepp, Nellie Edge, Sylvie Stuart, Irene Kemp and David Mungerannie to act as Named Applicants on their behalf.
9.Initially my instructions were received from the Management Committee with occasional community meetings as an unincorporated association.
10.On 19 October 2001, the Ngayana Dieri Karma Aboriginal Corporation was incorporated pursuant to the Aboriginal Councils and Corporations Act.
11.Since that time I have been instructed by the Corporation to act on its behalf and it was agreed by the Dieri Community that the Corporation would represent the community interest in all Native Title matters.
12.The Corporation is controlled by a Management Committee that it elects from time to time at Annual General Meetings.
13.At meetings of the Management Committee of the Corporation, the Named Applicants are also usually invited and often attend.
14.Prior to October 2001, I had on behalf of the Corporation entered into negotiations with the State Government and various petroleum exploration companies pursuant to Section 31 of the Native Title Act.
15.Six Agreements were subsequently signed by all of the Named Applicants and by the Corporation with the various employers and the South Australian State Government, in terms, similar to the Agreement with Eagle Bay Resources.
16.Prior to the signing of those Agreements, considerable time had been spent by myself and other people explaining the Agreements to the Dieri Community in General Meetings and Committee Meetings.
17.The execution of the Deeds of Agreements was widely known to the Dieri Community.
18.A further four similar Agreements were signed by the Named Applicants and the Corporation in early 2003.

[36] The material before the Tribunal establishes that the Dieri native title party have negotiated in good faith with the government and grantee parties and, if not for the problems confronting the YY native title party, would have concluded a s 31(1)(b) agreement.

[37] On the issue of the YY native title party, submissions were received from both Mr Humphry and Mr Steele. Both submitted that the YY claim group had, over a period of years, for the type of reasons that also apply to the Dieri claim group, established a corporation to facilitate, amongst other things, future act negotiations. Mr Steele confirmed that all members of the claim group are entitled to membership of the corporation. As to the relationship of the former committee of the corporation and the persons comprising the Applicant on the native title determination application, the following exchange occurred at the hearing:

Mr Sosso: I am just wondering what was the relationship between the applicants and the committee members? In other words, you’ve got people selected either under customary laws or a modern decision making process to represent the claim group in native title proceedings, then you’ve got a committee representing, basically, the same group of people for the purpose of commercial engagements.
I was just wondering what’s the relationship between the two? You know what I’m getting at? In other words, on what authority does a committee purport to tell people who are the agents in Federal Court proceedings what to do?
Mr Steele: They do it by virtue of the constitution of the association and they do it because the applicants, like any other member of the committee, are entitled to stand for election to the committee. And, in the past, it has been a quite common event for someone who is an applicant or part of the applicant to also be a committee member.
…
Mr Sosso: … what I’m trying to get at is this whole process, whether it’s future act negotiations or Federal Court proceedings, is being done by traditional laws and customs and as part of those traditional laws and customs that the applicants give effect to the decisions of the committee of the corporation.
Mr Steele: That is so, sir, and, in fact there is no difference in the approach taken by the Y and Y to these matters to the approach taken by the Dieri as outlined by Mr Kenny in his affidavit.

The key issue which concerned the Tribunal was the relationship between the corporation, the former committee, the Applicant and the wider claim group. I was satisfied on the basis of the documents filed and the oral submissions received, that the YY claim group have, through a series of integrated structures, ensured that the wishes of YY native title holders are being given effect to. Moreover, I was also satisfied that the relationship of the corporation, the former committee, the Administrator and the persons comprising the Applicant was close and symbiotic. In short, the material before the Tribunal established that there was a coordination of activities with a free, full and professional exchange of information, such that informed and appropriate decisions were being made by the various structures for the overall goal of advancing the interests of those persons who comprise the YY native title party.

[39] The next issue dealt with by Mr Humphry was the position of the Administrator and how his appointment may have impacted on the decisions ultimately made. It was submitted that, although the YYTLOAC had been placed in administration, the process adopted by the Administrator was the same as that adopted by the YY native title party and the YYTLOAC prior to the appointment of the Administrator under s 71 of the Aboriginal Councils and Associations Act 1976. Mr Humphry said: “in that sense, their decision making process has continued and been honoured, perhaps with the added benefit of a supervisory role being played by the Administrator, who took great care to satisfy himself that he did understand the wishes and desires of the YY People through the former members of the committee.”

[40] As previously pointed out, an Administrator of an aboriginal corporation is vested with broad powers under s 75 of the Aboriginal Councils and Associations Act 1976. As the Full Federal Court in Re Alcoota Land Claim No 146 held, the Administrator has the power to execute documents on behalf of the corporation and to consent to matters binding on the corporation. Of course, the Administrator is not given unfettered discretion. He must exercise the powers vested in him/her in accordance with the rules of the corporation. The material before the Tribunal clearly demonstrates that the Administrator carried out his duties in a careful and reasoned manner. He expended considerable time and effort in consulting and informing key members of the YY claim group. The previous decision making process of the YYTLAOC was adopted with, as Mr Humphry says, the additional supervisory role of the Administrator. The manner in which the Administrator exercised his duties gives added support to the proposition that the negotiations were conducted fairly and appropriately. From the material before the Tribunal, there could be no suggestion that the native title party was not appropriately represented, and in fact entered into negotiations in a position of bargaining strength. I am therefore of the view that the appointment of Mr Roberts as Administrator in no way compromised the decision making process of the YY native title party, and actually bolstered that process by providing an additional layer of supervision and assistance.

[41] The next issue dealt with by the legal representatives for both the grantee party and the YY native title party was that three of the seven persons comprising the Applicant of the YY native title party had either refused or failed to execute the relevant documents that would otherwise have resulted in a s 31(1)(b) agreement.

[42] Mr Humphry submitted that while three of the seven persons comprising the Applicant had refused or failed to execute the agreement document, in reality they comprised a small minority of the wider claim group.

[43] That contention, of itself, was not persuasive. It is very difficult for the Tribunal, when conducting a future act inquiry, to look beyond the persons comprising the Applicant and attempt to assess what the attitude of the claim group is to the execution of agreements. Clearly the person or persons comprising the Applicant in native title proceedings is placed in a key position. Section 61(1) makes it clear the Applicant is authorised by the native title claim group to make a native title determination application. This is supplemented by section 62A which provides that “the applicant may deal with all matters arising under this Act in relation to the application.” Justice Drummond in Ankamuthi People v Queensland (2002) 121 FCR 68 said 70/[8]:

… it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings. This follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position.

See also Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 214 ALR 306 at 308/[10].

[44] Nonetheless, the Federal Court has recognised that the person or persons comprising the Applicant are authorised by the claim group to advance their collective interests. While the person or persons performing the role as Applicant act as the agent of the members of the claim group in native title proceedings, their representative function entails the exercise of something akin to a fiduciary duty. The Applicant is authorised to give voice to the aspirations of claim group members, not to act as an independent voice disconnected from the aspirations, views and concerns of their fellow native title holders. Least of all, a person or persons performing this critical role should not engage in “spoiling” tactics or in conduct that is aimed at harming the interests of the claim group. As Justice Kiefel said in Button v Chapman [2003] FCA 861 at [9] the position of an applicant “does not involve a personal right”. Kiefel J also pointed out, if the Applicant contains persons who are performing their representative role, such that their role “as applicants has become untenable and the proceedings and the interests of others delayed, the Court has power to remove them under Order 6 of the Rules. If they wish to dispute aspects of the claim, they may apply to be joined as respondents.” - at [9].

[45] Accordingly, it normally would be a matter of concern if almost half of the persons who had comprised the Applicant refused to execute documents. That in itself would raise an

issue as to whether a native title claim group was split, or at least divided on the merits of proceeding with an agreement. To contend that the Tribunal, in a future act inquiry, should look beyond the Applicant and consider the views of the wider claim group is to ignore the clear legislative intent underlined by s 62A. The Tribunal therefore, was not prepared to accept the merits on that argument standing alone.

[46] The next issue was the rationale for the minority members of the Applicant refusing to execute agreements. Of relevance in this regard was the following exchange:

Mr Sosso: On the material before me, no one is saying that the three who are refusing to execute are opposed to the agreement.
Mr Humphry: No, no, I agree sir.
Mr Sosso: Has anyone said to you, of those three: “I think this agreement is inappropriate. We don’t want exploration on our land. The terms of the agreement are inadequate to protect our rights and interests, therefore, as a matter of principle, we will not sign the agreement’? Has anyone ever said that to you?
Mr Steele: No, they have not, sir, and in my submission that’s an extremely important matter to be taken into account in this matter … . Those three people have been members of the applicant from the commencement of this action and they have been signatories to the 19 previous deeds and agreements with respect to exploration and production in the Cooper Basin. They have signed all of those documents without demur. There is nothing different in the content of this deed from the content of previous deeds and agreements other than that the financial reward of the claim group is better on this occasion.

[47] The uncontested material before the Tribunal was that the three dissenting persons had previously executed similar agreements to that at issue in this inquiry. Further, none of the three dissenting persons had raised any concerns about the commercial nature of the agreement with the legal representative of the YY native title party. In fact, according to Mr Steele, one of the persons had initially refused to execute the agreement, but allegedly said that she would do so if paid $20,000.

[48] There was no material produced at this inquiry which would suggest that the dissenting persons had any real concerns with the agreement. Mr Steele stated at the hearing that so far as Ms Nicholls and Bottrell were concerned:

I spoke to Faye Nicholls and Theresa Bottrell on the telephone having written to them, then asking them whether they were prepared to negotiate and whether they were prepared to sign documents, assuming there’s a successful negotiation. At no time in that conversation did either of them say that they had any philosophical opposition to the grant of this licence or any opposition based on the fact that it might interfere with a site. They both simply said that they had lost interest in this claim and they weren’t prepared to play any role in the future. One of them then remarked that she would sign documents if the Association paid her $20,000.

[49] Mr Steele said of Mr Harris:

… he at all times indicated a preparedness to sign the documents, and he was fully informed by me as to the contents of those documents and then he indicated that preparedness …. His subsequent refusal to sign was wholly unrelated with anything to do with the proposed grant of the licence or any possible later licence. It was entirely connected to him not being allowed to be a member of a heritage survey. It was, to put it in fairly frank terms, a vindictive act by him.

[50] I also asked Mr Steele if there was any suggestion that the proposed tenement contained any sites of particular significance to members of the YY native title party, or whether there were community or cultural activities occurring on the land, such that it could be said that differences arose with the grant of this tenement to the other agreements reached by the YY native title party. Mr Steele confirmed that there had been no suggestion of either of those matters to him. I then posed this question:

Mr Sosso: So on the face of it, there is no difference, in human terms, if I can put it that way, or cultural terms, and insofar as the commercial aspect is concerned, the claim group would be no worse off, in fact, possibly better off, under this arrangement.
Mr Steele: That is certainly so, sir.

[51] Mr Steele also confirmed that each of the previous 19 agreements had been conjunctive agreements, and that there was nothing to distinguish the current agreement from those previous agreements, other than the money value, which, it was said was more beneficial to the native title parties. On this point, Mr Humphry also made the following submission: “although it’s the conjunctive agreement … that is the standard form … it’s a requirement in a commercial sense in the petroleum industry in South Australia to secure conjunctive agreements because of the enormous cost of exploration there is nothing unusual about that.”

[52] Finally, Mr Humphry made two submissions about the nature of the proposed future act in the context of the history of the native title parties and the area of the proposed tenement.

[53] Mr Humphry explained that the area of the proposed tenement was previously the subject of a petroleum exploration licence held for a number of years by Santos. Accordingly, the YY native title claim group are familiar with petroleum exploration in the subject area.

[54] In addition, the YY claim group, it was submitted, have already conducted a heritage survey in the subject area with the grantee party and cleared it for drilling for the first year. That would entail five exploration drill holes.

[55] In summary, both Mr Humphry and Mr Steele submitted that:

(a)the YY native title party had engaged in substantive good faith negotiations with the grantee party;

(b) the YY native title party had previously negotiated approximately 19 agreements of a similar nature;
(c) the proposed agreement was in similar terms to previous agreements, except that it was more financially generous to the native title party;
(d) there were no sites of particular significance or community, social or cultural activities on the subject land about which concern had been expressed should the proposed tenement be granted;
(e) the subject area had previously been the subject of petroleum exploration;
(f) the YY native title party had already carried out a heritage survey and agreed to the grantee party drilling on five sites in the first year of the term of the petroleum exploration licence;
(g) no opposition had been expressed within the YY native title party to the substance of the agreement reached with the grantee and government parties;
(h) the failure by three of the seven persons comprising the Applicant to execute the agreement was brought about by factors entirely separate from, and not relevant to, the agreement; and
(i) both Mr Steele and the Administrator had explained the terms of the agreement to the persons comprising the Applicant, and none had expressed any opposition to the grant of the proposed tenement.

The Law

[56] The Tribunal must take any agreement into account when making a determination – s 39(4). As I outlined previously, the Act places a primacy on the negotiation parties reaching an accord, and requires the arbitral body to factor in the agreement when making a determination. However the Act does not compel the Tribunal to make a determination in accordance with the agreement of the negotiation parties in every case. The Tribunal has an inherent discretion in making a section 38 determination and when, for example, the terms of an agreement are not related to the effect of the future act on the criteria outlined in section 39, the Tribunal is not bound to make a determination subject to such conditions – see the discussion in Western Australia v Thomas (1999) 164 FLR 120 at 183-194. The Tribunal must be satisfied that it is appropriate to make a determination in accordance with the agreement reached by the negotiation parties. What is appropriate in any given circumstance is incapable of an all-encompassing response. Clearly the attitude of the parties is critical, but the Tribunal must take into account a range of issues, not least of which is whether the agreement reached is not illegal and that parties have entered into the agreement freely, consciously and without duress.

[57] The Tribunal places particular regard on whether the negotiation parties are legally represented. In Cable Sands (WA) Pty Ltd/Nannup/Western Australia [2002] NNTTA 84 (7 May 2002) Deputy President Sumner said (at [3]): “The application sought a determination by consent of all the parties. The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent.” - see also e.g. Oriole Resources Ltd and Plutonic (Baxter) Pty Ltd/Lynch/Western Australia [2002] NNTTA 101 (30 May 2002) at [4] per Deputy President Sumner. 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.

[58] While the Tribunal will ordinarily be prepared to act on the consent of the negotiation parties as conveyed by their legal representatives, there are instances where the Tribunal will require further information as to whether there has been informed and actual consent – Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 at 369-370 and the determinations cited by Deputy President Sumner.

[59] If the Tribunal has material before it indicating that there is no unanimity amongst the persons comprising the Applicant of a native title party, it is put on notice that further inquiry is needed and that the parties requesting a consent determination need to satisfy the Tribunal that such a course of action is not only legally permissible but also an appropriate exercise of the presiding Member’s discretion.

[60] In a number of determinations various Members of the Tribunal have found that a native title party in a future act inquiry comprises all persons who constitute the registered native title claimant acting collectively as representative and agent of the wider native title claim group – see e.g. Ward v Northern Territory (2002) 169 FLR 303 at 310-311 and Victorian Gold Mines NL v Victoria (2002) 170 FLR 1 at 3. These findings follow logically from various Court decisions which have emphasised the communal nature of native title – eg Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61 per Brennan J - and how individuals or sub-groups are not at liberty under the Native Title Act 1993 to pre-empt or subvert the accepted decision making process of a properly constituted native title claim group – see e.g. Tilmouth v Northern Territory (2001) 109 FCR 240, Dieri People v South Australia (2003) 127 FCR 364 at 377/[55] per Mansfield J and Kokatha v South Australia [2005] FCA 836 at [19] per Mansfield J.

[61] The key issue then, in determining whether or not to make a section 38 determination at the request of the negotiation parties, is that the agreement reached has been made with the full knowledge and full authority of the negotiation parties – Taylor/Queensland/Freehold Mining Limited and Western Metals Copper (Receiver and Managers Appointed) [2004] NNTTA 80 at [30].

[62] The position adopted by the Tribunal when some of the persons who collectively constitute the Applicant have declined or failed to give their consent was set out by Deputy President Sumner in the Monkey Mia determination. I adopt the following statement of law given by Deputy President Sumner (at 370/[19]):

In Placer (Granny Smith) Pty Ltd v Western Australia the Tribunal made a determination even though one of 12 registered native title claimants did not consent. The Tribunal decided that a ‘native title party’ is not each registered native title claimant on the same claim but is the registered native title claimants acting collectively as representatives and agents of the claim group (s 62A of the Native Title Act) and that each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry: Placer (Granny Smith) Pty Ltd v Western Australia (at 5-11). It also follows from this decision that the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision-making processes of the native title claim group.

[63] On numerous occasions the Tribunal has made consent determinations even though not all of the persons comprising the Applicant have consented. Some of the more recent determinations and the relevant facts are set out below:

(a) The native title party comprised 8 registered native title claimants, 6 of whom had signed the relevant documentation. The signatories were not legally represented. There was a split in the native title claim group, with 2 persons refusing to sign a particular form of the documentation. Deputy President Sumner found that the disagreement was about form rather than substance, and that the mining lease in question was for a small project and steps had been taken to protect Aboriginal heritage. A consent determination was granted: Dimer/Western Australia/Boyes [2003] NNTTA 117 (18 November 2003).
(b) The native title party comprised 10 registered native title claimants, one of whom had passed away, while a second (Arnold Franks) had for reasons not known failed to execute the State Deed. Mr Franks had, however, previously executed a Heritage Protection Agreement with the grantee. Deputy President Franklyn found that the native title party was legally represented, that the remaining registered native title claimants understood and consented to the consent determination. In the circumstances, the personal consent of Mr Franks was not essential to the consent of the native title party – Empire Oil Company (WA) Limited/Western Australia/Borinelli [2003] NNTTA 118 (24 November 2003).
(c) There have been a series of consent determinations relating to agreements involving the Central West Goldfields native title party. In one typical instance, seven of the eight persons comprising the Applicant executed both the Ancillary Agreement and the State Deed. The eighth person, Ms Sue Wyatt, refused to sign either. She had previously refused to execute documents in another right to negotiate inquiry – Champion/Siberia Mining Corporation Limited/Western Australia [2004] NNTTA 15 (9 March 2004). Ms Wyatt claimed that the Ancillary Agreement falsely stated that it had the full support and authority of the relevant native title claim group. She was given an opportunity to provide submissions to substantiate this allegation but did not do so. Deputy President Sumner found that Ms Wyatt’s brother had authorised both documents on behalf of their family group. Further, the native title party had the benefit of independent legal advice and the legal practitioner informed the Tribunal that the persons he met understood the nature, intent and effect of the Ancillary Agreement. The Ancillary Agreement was of a standard type and the proposed tenement was in an historical mining area and adjacent to a mine operated by the grantee party. This lessened the likelihood of native title rights being affected by the new mining operations. The Tribunal made the consent determination – Champion/Siberia Mining Corporation Ltd/Western Australia [2004] NNTTA 26 (13 April 2004). See also e.g. Champion/New Hampton Goldfields Ltd/Western Australia [2004] NNTTA 82 (14 September 2004).

(d) The relevant native title party had six registered native title claimants. Two of those persons had passed away whilst a third was suffering from dementia and not capable of understanding commercial negotiations. Each of the remaining registered native title claimants executed the State Deed and Ancillary Agreement. Further they were legally represented. Deputy President Franklyn found it was appropriate to make the consent determination – Arc Energy Limited/Councillor/ Western Australia [2004] NNTTA 88 (21 September 2004), see also Councillor/ Western Australia/Victoria Diamond Exploration Pty Ltd [2004] NNTTA 38 (10 June 2004) per Deputy President Franklyn.
(e) The Tribunal has granted a number of consent determinations involving the South West Boojarah People. This native title claim group has 14 surviving registered native title claimants. One of those persons, Mr Kevin Miller, has refused to execute various Ancillary Agreements and State Deeds. The Tribunal has, despite Mr Miller’s refusal, made consent determinations on the basis that the evidence discloses that the remaining persons, being legally represented by a designated representative body, have given their consent on behalf of the claim group and that the Agreements being executed are of a standard type – see e.g. Red Mountain Energy Pty Ltd/Hill/Western Australia [2004] NNTTA 103 (5 November 2004).
(f) The Tribunal had to deal with a future act inquiry comprising two native title parties both of which had multiple persons comprising the Applicant. In both cases not all of those persons had executed the relevant agreements. In the first case the native title party had 16 persons comprising the Applicant, all but 3 of whom had executed the documents. There was no evidence before the Tribunal that the three persons opposed the agreement. Deputy President Sumner was satisfied that the agreements had the support of the first native title party. In the second case only 5 out of the 9 persons comprising the Applicant had executed the documents. Just as in this matter, this native title party, the Birrimaya People, had established a working group comprising 12 persons who were authorised to deal with mining agreements. They had unanimously resolved to enter into the relevant agreement. There was no evidence that the remaining 4 applicants opposed the agreement. The only evidence led related to the infirmity of one of those 4 persons, namely Mr Ginger Bob. In both this matter as in the Councillor determinations of Deputy President Franklyn set out above, the Tribunal found that the incapacity of one of the persons comprising the Applicant does not prevent the Applicant as a whole consenting to the doing of the future act. The Tribunal also noted that the representative body was legally representing the native title parties and that the agreements were of a standard type. Deputy President Sumner made the consent determination – BHP Billiton Minerals Pty Ltd/Abdullah/Western Australia [2005] NNTTA 40 (7 June 2005).

[64] Clearly in instances where there are divisions within a claim group, manifesting themselves in the failure of the persons comprising the Applicant, to act with unanimity in commercial dealings, an application pursuant to s 66B to replace the applicant is the proper means of resolving the issue. Unfortunately over the years a very substantial body of complex case law has developed around this section, and even if the conditions the Court has outlined for making an Order have been met (see Daniel v Western Australia (2002) 194 ALR 278 at [17]), the Court has found that it still has a discretion not to make an Order (see e.g. Ward v Northern Territory [2002] FCA 171). The process required to replace an applicant and the legal tests that the Federal Court have developed in determining whether to make the necessary order under s 66B(2), make this a very costly and time consuming process. This matter has arisen in part because the YY native title party have not been able to proceed with the s 66B application. The current state of affairs amongst the persons comprising the Applicant of the YY native title party is not satisfactory. Despite the costs and the difficulties surrounding a s 66B application, resolving the current state of affairs must be a matter of high priority for the native title claim group.

[65] The Tribunal however must deal with the circumstances as they currently exist. With the exception of one important issue which will be dealt with next, I am satisfied that the YY native title party has, with full knowledge, given its consent to making of a determination along the lines submitted by the legal representatives of the negotiation parties for the reasons set out in [55]. Further, I am also satisfied that I have the appropriate legal authority to make the consent determination sought. The key issues which I have taken into account are:

(a) the YY native title party was, at all times, legally represented;
(b) the YY native title party was also given the benefit of the independent assistance of the Administrator of the YYTLOAC;
(c) the YY native title party has previously entered into similar agreements;
(d) the proposed agreement is, if anything, more favourable to the YY party than those previously entered into;
(e) the terms of the agreement are of a standard type;
(f) the reasons for the dissent amongst the persons comprising the Applicant are not clear, but there is no material suggesting that there is any opposition based on the substance of the proposed agreement;
(g) there was sufficient material that the claim group as a whole supports the execution of the agreements. Indeed, the granting of the proposed tenement will assist the YY native title party by developing their economic structures – s 39(1)(a)(iii);
(h) the area of the proposed tenement has previously been the subject of petroleum exploration, and it is not likely that the grant of the proposed tenement would effect the way of life, culture or traditions of the YY native title party or the enjoyment of their registered native title rights and interests – s 39(1)(a)(i) and (ii);
(i) the material before the Tribunal does not suggest that the subject area contains any sites or areas of particular significance to the YY native title party in accordance with their traditions - s 39(1)(a)(v);
(j) the broader public interest (s 39(1)(e)) in the granting of the petroleum tenement in “contributing to the ongoing exploration activities essential to the health of the mining activity and the economy” – Evans v Western Australia (1997) 77 FCR 193 at 217 per Nicholson J; and
(k) the specific economic significance of the doing of the future act for South Australia and the wider Australian economy – s 39(1)(c). Mr Barry Goldstein, the Director of Petroleum, Minerals and Energy Division of the South Australian Department of Primary Industries and Resources deposed as follows:
In my opinion petroleum exploration and production contributes greatly to the economic well-being of the people and industries in the State of South Australia, and to the State generally. The total Cooper Basin production for the 5 years from 2000 through 2004 was $3.65 Billion. Based on conservative forecasts of exploration success rates (average 15% vs historical 40+% in the Cooper Basin), conservative forecast oil prices (US$35 to USD$40 per barrel) and expected work programs (drilling and seismic surveys) in the Petroleum Exploration Licences, I estimate the value of investment (in studies, seismic, drilling and production) in the Cooper Basin to be between 20 and 40 thousand dollars per square kilometre.

[66] The last issue that must be dealt with is that the negotiation parties have requested the Tribunal make a consent conjunctive determination. This will be the first conjunctive determination made by the Tribunal.

[67] Section 26D was inserted into the Native Title Act 1993 by the 1998 amendments. For the purposes of this matter, subsection 26D(2) provides:

(2) This Subdivision does not apply to an act (the later act) consisting of the creation of a right to mine if:
(a) before the later act takes place, an act (the earlier act) consisting of the creation of a right to explore or prospect took place; and
(aa) the earlier act took place after the commencement of this section; and
(b) this Subdivision applied to the earlier act and, because:
(i) an agreement of the kind mentioned in paragraph 31(1)(b) was made in relation to the earlier act; or
(ii) a determination was made under section 38 that the earlier act might be done, or might be done subject to conditions being complied with;
the earlier act was not invalid to any extent under section 28; and
(c) the agreement or determination:
(i) included a statement to the effect that, if the later act were done, this Subdivision would not apply to the later act; and
(ii) provided that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and
(d) any such conditions that were required to be complied with before the later act is done are complied with before the later act is done.

[68] Subsection 26D(2) enables the negotiation parties, at the exploration stage, to reach a comprehensive settlement for the whole of a project from the exploration stage through to the mining or production stage. In short, this subsection allows the negotiation parties to create a legal framework for their relations through the entire process and in practical terms, ensures that the right to negotiate only applies at the outset. From one viewpoint this is a most desirable outcome, yet in most cases there are many difficulties in attempting to reach a comprehensive settlement when the exploration relates to hard rock mineral projects.

[69] There has been no judicial consideration of s 26D(2). The grantee party (and the other negotiation parties by agreement) seeks a conjunctive determination which exempts from the right to negotiate, a variety of future acts. Two questions arise. First, whether the reference to “later act” in s 26D(2) can apply to multiple future acts. Second, are there limitations on the area of land and waters in respect of which those later acts may be done as exempted acts?

[70] In relation to the first question, the identification of acts in the plural is not problematic. Section 23 of the Acts Interpretation Act 1901 (Cth) relevantly provides that, unless the contrary intention appears, words in the singular number include the plural. There is no contrary intention evident in s 26D(2) and therefore it is clear that the reference to “later act” includes later acts. I have also proceeded on the basis that s 26D(2) applies to classes of future acts as distinct from particular future acts.

[71] In relation to the second question I am of the view that s 26D(2) only applies to later acts that are to be done in respect of land and water wholly within the area covered by the earlier act. The giving of s 29 notices alert registered native title claimants, registered native title bodies corporate and native title holders respectively, to the proposed doing of a future act over land and waters covered (or potentially covered) by a claim or determination. A plain reading of s 26D(2) does not disclose an intention that an exempted later future act could be done over land and waters not covered by the original s 29 notice. A contrary reading of s 26D(2) would potentially deprive adjacent claimant groups of the valuable right to negotiate. While not dealing with conjunctive determinations, the above view is supported by the determination of Deputy President Franklyn in Dixon v Northern Territory (2001) 166 FLR 29. Deputy President Franklyn held (at 33-35/[8-11]), in relation to the public notice under s 29, that a clear description of the land and waters that will be affected by the proposed future act was required. This is required so that persons whose native title rights and interests may be affected by the proposed future act can take steps to become involved in the processes under the Native Title Act 1993. This entitlement would disappear if the later future acts had already been consented to in a different proceeding and those later future acts had been exempted from the right to negotiate process. The High Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 and in Fejo v Northern Territory (1998) 195 CLR 96 found that the right to negotiate was a valuable right which could, in certain circumstances, be protected by interim relief. The High Court found that it was clearly important and was not a “windfall accretion” to the asserted bundle of native title rights for which a claim group sought recognition. Accordingly, whilst s 26D(2) is drafted to facilitate a “one stop” negotiation process, it is predicated on the assumption that all of the negotiation parties have engaged in good faith negotiations. In this context “all of the negotiation parties” means all persons whose registered native title rights and interests may be affected by either the earlier or the later acts.

[72] The real and practical benefits of conjunctive agreements and determinations lies with petroleum and gas exploration and production. This is, in part, due to quite different circumstances that pertain to petroleum and gas production as compared with hard rock mining. In the case of petroleum and gas the major expenditure lies in the exploration stage. Furthermore, the act of exploration is as disruptive to the environment and the asserted native title rights and interests, as is the actual production of petroleum and gas. Furthermore, unlike hard rock exploration, it is clear from the outset with petroleum and gas exploration both what the substance is that is the subject of the exploration and also the exact manner and nature of extracting the substance should it be found.

[73] The Tribunal was greatly assisted by Affidavits filed by Mr Rechner of the grantee party and Mr Goldstein of the government party. Mr Rechner deposed, in summary, that in the first three years of the exploration program, 11 wells would be drilled with a guaranteed expenditure of $16.65 million. Subject to negotiations with the government party, further drilling of three wells and additional expenditure of $4 million is planned for the fourth and fifth years of the exploration program. The grantee party will spend $1.5 million for each well drilled in the first year, with an additional $200,000 undertaken to review the geology and geophysics of the proposed tenement. Consequently in the first year alone, the grantee party plans to expend $7.7 million. The grantee party is hopeful that, on the basis of an expert review of all existing geological and seismic data, some 1,000 barrels of oil are likely to be produced per day.

[74] Mr Rechner deposed that the proposed tenement was already explored by Santos and that proposed exploration activities would be carried out by utilising existing roads and accessing existing water wells. No new roads or wells will be constructed. Further, each drilling well will require a clearance area of 300 x 300 metres, but the actual disturbance to the land will be significantly less.

[75] Should the drilling prove successful, a productive well will be fitted with a two metre tall structure called a “Christmas Tree”. An area of 200 x 100 metres will be fenced off around each well during production. The proposed tenement is already dissected by underground oil and gas collection pipelines. Oil located will be held in storage tanks collected weekly by trucks using, whenever possible, existing roads and taken to the oil pipelines. The distance from the storage tanks to the pipelines is likely to be 4-5 km. Oil found will also require the construction of desanding and dewatering facilities (2 x 2 x 2 metres) connected to storage tanks of the same size as domestic rainwater storage water tanks. Gas located will be transported to the existing underground pipelines by means of underground pipelines that will need to be constructed.

[76] Finally the grantee party will have to construct a temporary worker’s camp on the land for those involved in producing the oil and gas.

[77] Mr Goldstein assisted the Tribunal with the following information on the practicalities of oil and gas exploration and mining:

8. Under the Petroleum Act 2000 (SA) a holder of an exploration licence who is successful in exploration is generally speaking entitled to the grant of a production licence for the production of petroleum or a retention licence. To date, all of the petroleum exploration agreements in South Australia negotiated under section 31 of the NTA have been conjunctive agreements (that is, agreements which authorise exploration and production). This is because, compared to minerals exploration investment, the cost of petroleum exploration is quite high – with pre-drilling seismic surveys costing hundreds of thousands to millions of dollars and exploration wells costing more than $1 million each. In general, and also in South Australia, petroleum explorers have no interest in applying for rights to explore for petroleum without knowing the fiscal terms and land access conditions for production, in the event exploration is successful before they apply for the rights to explore.
9. In my opinion, the environmental impact of petroleum production is generally no greater than the impact of petroleum exploration. The exploration phase for petroleum almost always extends over a greater area than does the development of discovered petroleum accumulations. Indeed, the areal extent of discovered fields in any particular area tends to diminish in size with more exploration – as explorers tend to drill the largest prospect first. The Cooper Basin is a rather mature oil and gas exploration province and the areal extent of discovered fields in the past 10 years in the Cooper Basin has tended to be modest in size.

[78] The difficulties that can arise when the Tribunal is requested to make, in effect, a conjunctive determination at the exploration stage were clearly set out by a Full Panel of the Tribunal in Re Koara People (1996) 132 FLR 73. The Tribunal considered the consequences that flowed from the nature of certain Western Australian mining leases that gave the grantee both a right to explore (albeit over smaller than normal areas and with higher rentals) and a right to carry out mining operations (see pp 82-83). The Tribunal outlined the following type of consequences which flowed from such leases (at 86):

(a) from the time when normal negotiating procedures commenced, the parties were left to negotiate without any real opportunity to consider the impact of mining operations;
(b) when a s 35 application is made, the Tribunal will have difficulties applying the s 39 criteria to a mining operation that may never occur and about which little or nothing is currently known;
(c) the grantee parties were unable to give any worthwhile evidence about the nature and extent of mining operations which might be conducted and consequently the native title party could not respond about the possible effects of actual mining operations on their rights and interests in the subject land and waters;
(d) the government party had difficulty assessing future liability for compensation in the event that a lease was granted;
(e) it was difficult for the Tribunal to give full consideration to the native title party’s right to be asked about actions affecting the land, to achieve respect for the native title party’s connection to the land and provide appropriate protection.

The Tribunal concluded by saying (at 86): “The result is that the Tribunal is placed in the position of weighing the criteria set out in s 39 at the least logical stage of the process of exploration and mining.” This aspect of the Tribunal’s determination was endorsed by Nicholson J in Evans v Western Australia (1997) 77 FCR 193 at 214. A similar conclusion was also reached by another Full Panel of the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 at 223-224.

[79] The Tribunal has previously found that the practical impact of petroleum exploration and production on native title rights and interests is likely to be less than for mining exploration and production – Western Australia v Hayes (2001) 163 FLR 384 at 389/[11] per Deputy President Sumner. The evidence submitted to the Tribunal during this inquiry supports that proposition. The material before the Tribunal also demonstrates that:

(a) at the negotiating stage the negotiation parties were able to sensibly consider the impact of petroleum and gas production activities;
(b) the Tribunal is able to sensibly apply the section 39 criteria to the gas/oil production stage;
(c) the grantee party was able to give worthwhile evidence about the nature and extent of petroleum and gas operations which may be conducted; and
(d) the native title parties were in a position to sensibly consider the impact of petroleum and gas production on their registered native title rights and interests. This was so, not just because of the history of petroleum and gas exploration and production on, and in the vicinity of, the proposed tenement but also because of the very nature of petroleum and gas exploration and production.

[80] There is a significant difference between hard rock exploration and mining and the exploration and production of petroleum and gas. Hard rock exploration is, almost without exception, less intrusive and less expensive to conduct than hard rock mining. The type of minerals that may be located by the exploration are sometimes not certain. More significantly, the nature of the mining operations required to extract minerals located will often be impossible to ascertain at the exploration stage. When mining commences, the actual impact on native title rights and interests will be hard to predict at the outset. This is particularly the case if open cut mining is used to extract minerals. Likewise it would be highly unusual for an explorer to know, when applying for an exploration permit, whether or not minerals will be discovered, let alone the means required for extracting them, the nature of the disruption that will be caused by the grant of a right to mine and the economic benefits for the local, regional, State and national economies.

[81] In comparison a petroleum or gas explorer knows from the outset the type of resource that is being sought. The extraction of subterranean liquid and gas resources requires the drilling of narrow bore holes deep into the earth. If that drilling results in the discovery of viable oil and gas deposits, then it is simply the case of utilising equipment to bring that product to the surface and transporting it by means of pipelines or road or rail transport, to a place where it can be refined. The cost and disruption involved in oil and gas mining occurs mostly at the exploration and not the production stage.

[82] Subsection 26D(2) was inserted in the Act to facilitate exploration and mining activities when one right to negotiate could be applied for the whole process. The evidence before the Tribunal highlights the desirability and economic imperative of this occurring for petroleum and gas exploration and production. Consequently, the Tribunal was satisfied by the materials filed, that it was appropriate to make a s 38 conjunctive determination.

[83] Finally, under the Land Access Deeds, the negotiation parties acknowledged that the non-extinguishment principle applied to the grant of any licence or later act and to any work done pursuant to any licence or later act. This acknowledgment follows from the operation of section 24MD(3) of the Native Title Act 1993 and was usefully explained by Deputy President Sumner in Western Australia v Hayes at 396-397 [24].

Determination

By consent, the determination of the Tribunal is that:
(a)the act, namely the grant of petroleum exploration licence (PEL) 182 to Eagle Bay Resources NL, may be done pursuant to section 38 of the Native Title Act1993 (Cth);
(b)Sub Division P of Division 3 of Part 2 of the Native Title Act 1993 (Cth) will not apply to the issue of any retention licences, production licences, associated facility licences or pipeline licences (by whatever name called) subsequent to the grant of PEL 182, subject to the grantee party complying with the terms of the Aboriginal Heritage Protection Protocol contained in the Schedule to this determination.

John Sosso

Member

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law
Administrative Law

Legal Concepts

Native Title
Administrator
Legitimate Expectation
Consent

Actions

Download as PDF Download as Word Document

Citations

Moore v Mungeranie [2005] NNTTA 53

Most Recent Citation

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

Cases Citing This Decision

10

Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85

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

Cases Cited

6

Statutory Material Cited

0

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98

Australian Securities Commission v Avram [1996] FCA 1009

[2005] NNTTA 53

28 July 2005

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law

Administrative Law

Legal Concepts

Native Title

Administrator

Legitimate Expectation

Consent