Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People/Queensland - [2010] NNTTA 210

NATIONAL NATIVE TITLE TRIBUNAL

Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People /Queensland, [2010] NNTTA 210 (17 December 2010)

Applications No: QF10/15, QF10/16, QF10/17, QF10/18, QF10/19, QF10/20, QF10/21 & QF10/22

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

- and -

IN THE MATTER of an inquiry into Future Act Determination Applications

Queensland Gas Company Limited & Ors (refer attached schedule) (grantee parties)

- and -

Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2
(first native title party)

Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People

(second native title party)

- and -

State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 17 December 2010

Hearing dates: 12, 18, 19 October 2010

Representatives:
Native Title Parties: Mr Michael Owens, Lawyer & Consultant
Grantee Parties: Mr Dominic McGann, McCullough Robertson, Solicitors

Government Party: Ms Jacinta Dwyer, Mr Gim Del Villar, State of Queensland

Catchwords: Native title – future acts – application for determination for the grant of Petroleum Leases, Authority to Prospect and the proposed addition of excluded land to Authorities to Prospect - determination that the acts may be done.

Legislation:Petroleum and Gas (Production and Safety) Act 2004 (Qld) ss. 32, 33, 48, 100, 109, 110, 111, 112, 136, 170
Petroleum Act 1923

Native Title Act1993 (Cth), ss 24MD, 29, 32, 35, 36, 38, 39, 77, 238

Cases:Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46
Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF 05/3 [2006] NNTTA 3 (30 January 2006) Member Sosso
Cheinmora v Striker Resources NL (1996) 142 ALR 1
Doolan v Native Title Registrar (2007) 158 FCR 56
Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 (13 February 2003) Deputy President Sumner
Evans v Western Australia (1997) 77 FCR 193
Foster v Copper Strike Ltd (2006) 200 FLR 200
Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF 10/9 [2010] NNTTA 119 (4 August 2010) Deputy President Sosso
Little v Western Australia [2001] FCA 1706
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019
Tigan v Western Australia [2010] FCA 993
Tatow & Ors (Iman People #2)Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd, Sumisho Coal Australia Pty Ltd/Queensland [2010] NNTTA 54
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Thomas (1996) 133 FLR 124
Xstrata Coal Queensland Pty Ltd & Ors v Tatow [2008] QLC 226

REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION

Introduction

The State of Queensland (“government party”) issued notices under s.29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant an Authority to Prospect Application (ATP) 889, the addition of excluded land to ATPs 632, 651, 767, 768, 795 and 852 and the grant of Petroleum Leases (PL) 276, 277 and 299 (collectively “the tenements”) to Queensland Gas Company Limited and others as detailed in the attached schedule (“grantee parties”), pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (Qld), and the Petroleum Act 1923. The notice specified a notification day of 13 January 2010.
The notice stated that an Authority to Prospect authorises the relevant grantee party to explore for petroleum for a period not exceeding twelve (12) years, under the Petroleum and Gas (Production and Safety) Act 2004 (Qld). The notice also stated that under this Act, the holder of an Authority to Prospect is entitled to apply for a Petroleum Lease over land that is the subject of an Authority to Prospect. A Petroleum Lease entitles the holder to undertake regulated activities in order to develop and produce payable deposits of petroleum.
The notice also stated that applications to add excluded land to the existing Authorities to Prospect and Petroleum Leases under ss.100 and 170 respectively of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) would authorise the holders of the existing tenements either to explore for petroleum or to prospect and produce petroleum for the current term of the relevant tenement.
The tenements are located around the towns of Roma, Miles and Wandoan within the Maranoa Regional Council, Western Downs Regional Council and Banana Shire Council local government areas.
ATP 889 comprises an area of approximately 518 square kilometres and is wholly within the external boundary of the Mandandanji People native title determination application.
The areas of excluded land in ATPs 768 and 852 comprise areas of approximately 307 and 1155 square kilometres and are located wholly within the external boundary of the Iman People #2 native title determination application.
The areas of excluded land in ATPs 632, 767 and 795 comprise areas of approximately 454, 455 and 307 square kilometres and are located wholly within the external boundary of the Mandandanji native title determination application.
The area of excluded land in ATP 651 comprises an area of approximately 384 square kilometres and is located within the external boundaries of both the Mandandanji and Iman People #2 native title determination applications.
PLs 276, 277 and 299 comprise areas of approximately 228, 157 and 228 square kilometres and are located within the external boundaries of both the Mandandanji and Iman People #2 native title determination applications.
The Iman People #2 native title determination application (QUD6162/9) was entered on the Register of Native Title Claims on 26 July 2002. The Mandandanji People native title determination application (QUD366/08) was entered on the Register of Native Title Claims on 30 March 2009.
Information provided by the government party indicates that the areas comprising the tenements have been subject to the grant of other Authorities to Prospect and Petroleum Leases.
The uncontested assertion of the government party is that there is not known to be any Aboriginal communities on, or in the vicinity of, the tenements.
A search by the government party of the Aboriginal Heritage Database and the Aboriginal Cultural Heritage Register identified a number of Aboriginal cultural heritage sites within the area of the tenements.

Queensland Legislative Framework

The grant of Authorities to Prospect and Petroleum Leases in Queensland is governed by Chapter 2, Parts 1 and 2 of the Petroleum and Gas (Production and Safety) Act 2004.
The holder of an Authority to Prospect is entitled to carry out, pursuant to s.32(1), any of the following activities:
(a)   exploring for petroleum;
(b)   testing for petroleum production;
(c)   evaluating the feasibility of petroleum production;
(d)   evaluating or testing natural underground reservoirs for storage of petroleum or a prescribed storage gas.
In addition, pursuant to s.33, the holder of an Authority to Prospect may carry out incidental activities in the area of the Authority if carrying out the activity is reasonably necessary for or incidental to, an authorised activity under s.32(1). Examples of incidental activities include constructing or operating plant or works, including for example, communication systems, pipelines associated with petroleum testing, power lines, roads, separation plants, evaporation and storage ponds, tanks and water pipelines.
The Act requires the preparation of work program (Chapter 2 Division 3) which provides detailed information about the nature and extent of activities to be carried out under the authority. Section 48 sets out the general requirements of a work program, including an overview of the activities proposed to be carried out, for each year of the program the extent and nature of proposed exploration and testing, the area where such activities are proposed to be carried out, the estimated cost of the activities, maps, reasons why the program is considered appropriate and any other matter prescribed by regulation.
The holder of a Petroleum Lease is entitled, pursuant to s.109 to carry out the following activities:
(a)   exploring for petroleum;
(b)   testing for petroleum production;
(c)   evaluating the feasibility of petroleum production;
(d)   testing natural underground reservoirs for storage of petroleum or a prescribed storage gas;
(e)   petroleum production; and
(f)    evaluating, developing and using natural underground reservoirs for petroleum storage or to store prescribed storage gases, including, for example, to store petroleum or prescribed storage gases for others.
In addition, a lease holder may construct and operate petroleum and water pipelines in the area of the lease (s.110) as well as carrying out the processing of petroleum and the construction and operation of a facility for the processing, storage or transport of petroleum in the area of the lease (s.111). As with an Authority to Prospect, a lease holder may carry out incidental activities in the area of the lease (s.112).
The holder of a lease is required to comply with a development plan which gives detailed information about the nature and extent of activities to be carried out (s.136). The Act sets out in detail the contents of such plans and the obligations imposed on a lease holder.
In addition to the requirements of the Petroleum and Gas (Production and Safety) Act 2004, the environmental regulation of mining in Queensland is governed by the Environmental Protection Act 1994 (Qld). Under that statute a grantee party is required to hold an environmental authority in relation to the proposed activities to be undertaken on the subject tenements. A grantee party is required to comply with each of the relevant standard environmental conditions prescribed by the Code of Environmental Compliance for Exploration and Mineral Development Projects. Finally, a duty of care is imposed upon the grantee party by the operation of the Aboriginal Cultural Heritage Act 2003 (Qld). A more detailed explanation of the relevant provisions of those Acts is set out in Horvatic/Gorringe & Ors (Mithaka People)/Queensland QF10/9 [2010] NNTTA 119 at [11] – [14].
The relevant mining tenure provisions were considered by the Tribunal in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland QF05/3 [2006] NNTTA 3 and the following conclusion about the operation of the regulatory regimes was reached:
“[37] Summing up, the above brief and non-exhaustive overview of the current state of mining, environmental and cultural heritage law impacting on relatively low impact mining activities, highlights that Queensland possess(es) a comprehensive and well integrated regime that aims to an appropriate level of environmental and cultural protection..
[38] The material before the Tribunal demonstrates that the legislative regime cumulatively provides a protective framework which ameliorates the likely or potential effect of the future act on the native title rights and interests of the native title party.”
A similar conclusion can also be reached with respect to the legislative regime governing the exploration for, and extraction of, petroleum and natural gas in Queensland.

Tribunal Proceedings

On 29 September 2010 Queensland Gas Company Limited on behalf of the grantee parties, lodged with the Tribunal future act determination applications pursuant to s.35 in relation to each of the tenements. The applications were made more than six months after the notification day – s.35(1)(a). On 30 September 2010 I was appointed as the Member to conduct the future act determination inquiries and on 1 October 2010 I accepted the future act determination applications pursuant to s.77.
In the future act determination applications Queensland Gas Company Limited (QGC) described its relationship to each of the other grantee parties. Pure Energy Resources Pty Ltd is described as a related body corporate of QGC and BNG (Surat) Pty Ltd is a subsidiary of QGC. With respect to Petroleum Leases 276 and 277 and Authority to Prospect 632, QGC is described as “the majority applicant” and was “responsible for the negotiations relating to the section 31.” With respect to these tenements, the grantee party is described in the s.29 notice as Queensland Gas Company Limited (68%), BG International Limited (17%) and AJ Lucas Group Limited (15%).
Background information on the reason for the lodgement of the future act determination applications is set out in paragraph 10 of those applications dealing with the Iman People #2 claim group. Set out below is an extract of this information:
“A consent determination is sought as the native title party has consented to the grant of ATP 852 and all but one of the persons comprising the registered native title claimant have executed the Deed and Ancillary Agreement.
QGC began discussions with the Iman People regarding the NTA Right to Negotiate (RTN) process in 2009. Formal negotiations regarding the RTN documents commenced on 22 April 2010.
Since the formal negotiations, began, QGC and the Iman People have negotiated in good faith and reached an agreement regarding the Deed and Ancillary Agreement. Despite this, one of the members who comprise the Iman People applicant (Iman Applicants), Madonna Barnes, is not willing to execute the Deed or the Ancillary Agreement.
QGC has provided sufficient opportunities for Ms Barnes to participate in the negotiation process and sign the deed and Ancillary Agreement. The Iman Applicants were invited to several meetings with QGC, those being held on 22 April 2010, 23 May 2010, 31 May 2010, 9 June 2010, 15 July 2010 and 16 July 2010. At these meetings the Deed was discussed and the Ancillary Agreement negotiated. During the meeting on 15 July 2010, all documents were signed by the majority of the Iman Applicants. Two of the Iman Applicants, Troy Noble and Eve Fesl, were not attendance at the final meetings on 15 and 16 July 2010. The Iman People’s lawyer, Michael Owens, confirmed the Mr. Noble and Ms. Fesl were willing to sign the deed and Ancillary Agreement and suggested lawyers from McCullough Robertson contact them and arrange a time for execution.
Accordingly, Liam Davis from McCullough Robertson contacted them and met with Mr. Noble on 3August 2010 while Sarah McBratney from McCullough Robertson and Terry Paxton from Unidel Group Pty Ltd (Unidel), a consultancy firm to QGC, met with Ms. Fesl on 4 August 2010. Both Mr Noble and Ms Fesl executed the Deed and Ancillary Agreement.
Ms. Barnes was contacted by Terry Paxton of Unidel separately on the following dates, however failed to return any of the calls.

Date Attempts at contact

19 July 2010 Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.

19 July 2010 Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.

20 July 2010

Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.

Lyndal Hanrahan from McCullough Robertson contacted Michael Owens on 30 July 2010, 2 August 2010 and 6 August 2010 and advised him Ms. Barnes had not signed the Deed and Ancillary Agreement and that without her execution, QGC intended to lodge this Form 5 with the National Native Title Tribunal (NNTT) after 9 August 2010.
QGC understands that Michael Owens has contacted the NNTT and provided the death certificate of Fred Tull, one of the Iman Applicants who is listed as a signatory on the Deed.”

Mr. Owens has provided the Tribunal with a copy of the Death Certificate of Mr. Tull.
The relevant future act determination applications pertaining to those tenements overlapped by the Mandandji People native title determination contain the following assertion about negotiations between the relevant grantee party and the Applicant of this claim group:
“QGC began discussions with the Mandandanji People regarding the NTA Right to Negotiate (RTN) process in 2009. Formal negotiations regarding the RTN documents commenced on 22 April 2010.
Since the formal negotiations began, QGC and the Mandandanji People have negotiated in good faith and reached an agreement regarding the Deed and Ancillary Agreement. Despite this, four of the members who comprise the Mandandanji People applicant (Mandandanji Applicants), Leslie Weribone, Phyllis Hopkins, Violet Costa and Sarah Trindall are not willing to execute the Deed or the Ancillary Agreement.
QGC has provided sufficient opportunities for Mr. Weribone, Ms Hopkins, Ms Costa and Ms Trindall to participate in the negotiation process and sign the Deed and Ancillary Agreement.
The Mandandanji Applicants were invited to several meetings with QGC, those being held on 22 April 2010, 21 May 2010, 9 June 2010, 14 July 2010 and 16 July 2010. At these meetings the deed was discussed and the Ancillary Agreement negotiated. During the meeting on 16 July 2010, all documents were signed by the majority of the Mandandanji Applicants, those being Alexandra Combarngo, Lorraine Tomlinson, Miranda mailman, Sylvia McCarthy and Leight Himstedt. The Mandandanji People’s lawyer, Michael Owens, suggest that lawyers from McCullough Robertson contact the outstanding Mandandanji signatories to meet and arrange a time for execution of the RTN documents.
Terry Paxton from Unidel Group Pty Ltd (Unidel), a consultancy firm to QGC, attempted to contact the four outstanding Mandandanji signatories following this meeting to organise the execution of the Deed and Ancillary Agreement. Mr Paxton was able to contact Mr. Weribone, Ms. Trindall and Ms. Hopkins who agreed to meet on 28 July2010 at McCullough Robertson’s offices to execute the Deed and Ancillary Agreement. When Mr. Paxton could not reach Ms. Costa, he contacted her son, Peter Costa. Mr. Costa had been attending the meetings with QGC on behalf of Ms. Costa and informed Mr. Paxton that any communication with Ms. Costa should be directed through him. He told Mr. Paxton that he would bring Ms. Costa to McCullough Robertson’s offices on 28 July 2010 with the other outstanding Mandandanji signatories. On 27 July 2010 Mr. Paxton was advised the Mr. Weribone had changed his mind and would no longer sign the documents. Following this, Mr Paxton spoke with Ms. Trindall during the afternoon of 27 July 2010 when she advised that Mr. Weribone had instructed her not to sign the documents and indicated that she would follow Mr. Weribone’s instructions.
Lyndal Hanrahan from McCullough Robertson contacted Michael Owens on 30 July 2010, 2 August 2010 and 6 August 2010 and advised him that Mr. Weribone, Ms. Hopkins, Ms. Trindall and Ms. Costa had not signed the deed and Ancillary Agreement and that without their execution, QGC intended to lodge this Form 5 with the National Native Title Tribunal (NNTT) after 9 August 2010.”
On 12 October 2010 I convened a Preliminary Conference. Mr. Michael Owens appeared on behalf of the native title parties, Mr. Joel Moss on behalf of the Wulli Wulli People, Ms. Lyndal Hanrahan and Mr. Liam Davis on behalf of the grantee parties and Ms. Sara Newrick on behalf of the government party.
In lieu of making formal directions, the following course of action was determined:
(a) The Tribunal was to produce mapping in relation to the addition of excluded land to confirm those overlaps which were technical;
(b) Mr. Owens, on behalf of the native title parties and the Bigambul People, agreed to provide to each other party and the Tribunal by 18 October 2010, a statement of contentions and/or an affidavit outlining the following matters:
(i) why the Tribunal should proceed to make a determination, whether consensual or otherwise;
(ii) why, in respect of the Iman People #2, to the best of his knowledge, Ms. Madonna Barnes had declined to sign the relevant agreements;
(iii) why, to the best of Mr. Owen’s knowledge, had some of the persons collectively comprising the Mandandanji People Applicant declined to sign the relevant agreements; and
(iv) when and where the Indigenous Land Use Agreements which inform the content of the right to negotiate agreements, were authorised by the relevant claim groups.
(c) McCullough Robertson, on behalf of the grantee parties, to provide to the Tribunal and each other party by 25 October 2010 a statement of contentions and/or affidavit outlining:
(i) why the Tribunal should proceed to make a determination, whether consensual or otherwise;
(ii) what attempts the grantee parties have made to reach agreement with the native title parties; and
(iii) why, in the grantee parties understanding, had the refusal by all persons comprising the Applicant of the native title parties to execute the relevant agreements arisen, and whether the refusal to execute the agreements related to the terms of the agreements.
(d) The government party was to provide to the Tribunal and each other party by 29 October 2010 submissions on whether it was satisfied that the making of a consent determination would be appropriate.

On 18 October 2010 Mr. Owens emailed the Tribunal in the following terms:
“I am unable to obtain instructions from either of my respective clients to file any material in the abovementioned FADA Applications as filed by QGC.
In the circumstances, I am unable to comply with the Directions of DP Sosso of 12 October 2010 to have such material by cob this afternoon.”
Having regard to the stated inability of Mr. Owens to provide the material agreed to at the 12 October 2010 Preliminary Conference, I convened a Status Conference. Mr. Andrew Pippia appeared for the government party and Mr. Dominic McGann of McCullough Robertson appeared for the grantee parties. Mr. Owens did not make an appearance.
I indicated that I had not made formal directions at the Preliminary Conference as I understood that the parties were seeking a consent determination and the relevant material in support of this course of action would be provided to the Tribunal. However, having regard to the content of Mr. Owen’s email, this course of action did not appear feasible. Mr. McGann stated that Mr. Owen’s email was a complete surprise and that it was incumbent on Mr. Owens to explain his instructions. He suggested that this may be a communications issue rather than a change of direction by the native title parties. I indicated that on the basis of Mr. Owen’s email the Tribunal should proceed on the assumption that instructions could not be obtained from the native title parties and consideration needed to be given to an alternative course of action. Mr. McGann requested that the matters be stood down for two days to allow him time to contact Mr. Owens. I agreed to stand the matters down temporarily to allow Mr. McGann the opportunity to discuss with Mr. Owens the prospects of a consent determination or alternative courses of action.
Mr. Owens emailed the Tribunal at 7.51pm on 18 October 2010 and clarified the position of the native title parties as well as the instructions he held:
“1. I confirm that I continue to hold instructions from both the Iman People #2 and the Mandandanji People.
2. I have never been advised by either of the Native Title Parties that they intend to allege lack of good faith by either the State or the Grantee Party.
I can further confirm that neither of my clients have an objection to the grant of the tenements.
My clients objection was to me making submissions contrary to some of the personal interests of some of those persons comprising the Applicant of Iman People #2 and Mandandanji Peoples who have declined to sign either of the ILUA or RTN Agreements.
I confirm my previous advices that a Cultural Heritage Management Plan has been entered as between the Grantee and both of the Native Title Parties pursuant to Part 7 Aboriginal Cultural Heritage Act 2003 on or about 16 July 2010. I have not been provided with a copy of the signed CHMP by the Grantee Party and so am unable to attach same for your reference.
Any concerns that my clients may have about environmental matters are being addressed in a comprehensive EIS that has been approved by the State and is currently awaiting approval by the Federal Government.
A s31 Agreement has also been executed (by all persons comprising the Iman People #2 and Mandandanji Applicants – other than those who are on the record as having refused to do so) as between the State, the Grantee Party and the Native Title Parties. Similarly an Ancillary Agreement has also been executed by all those comprising the Applicant of Iman People #2 and Mandandanji – other than those who are on the record as having refused to sign the RTN Agreement...
In all of the circumstances, my clients are of the view that the Tribunal should make a determination that the Future Act be done under s 38(1)(c) of the NTA and that the Ancillary Agreement that was entered as between the Native Title Party and the Grantee Party on 16 July 2010 be made a condition of the Future Acts.”
A further Status Conference was convened on 19 October 2010. After hearing from the parties, I formed the view that it was not possible for the Tribunal to make a consent determination, and that formal directions should be made. It was also clear that there was no suggestion by the native title parties that either the government or grantee parties had failed to negotiate in good faith. In these circumstances, there was no impediment to the Tribunal making a determination pursuant to s.38 – s.36(2). Accordingly directions were made, with the native title parties to comply by 22 October 2010, the government party by 29 October 2010 and the grantee party by 5 November 2010.
The Tribunal also produced mapping and provided it to the parties as well as Mr. Joel Moss. That mapping illustrated the boundaries of the Wulli Wulli People and the Bigambul People did not overlap the tenements. Accordingly the Applicant of both of the claim groups was not required to be a party to these proceedings.

Contentions of the Parties

In compliance with the Directions made on 19 October 2010, Mr. Michael Owens lodged with the Tribunal on that day a Statement of Contentions as follows:
“Following on from the Status Conference this morning, I confirm that:
(a) I continue to hold instructions from both of the Iman People #2 and the Mandandanji People,
(b) I have never been advised by either of the Native Title Parties that they intend to allege lack of good faith by either the State or the Grantee Party,
(c) Neither of my clients have an objection to the grant of the tenements, and
(d) None of my clients have ever raised any of the matters as mentioned in s39 NTA as issues or grounds for objection to the RTN Agreement or the grant of the tenements themselves.
My client’s objection was to me making submissions contrary to some of the personal interests of some of those persons comprising the Applicant of Iman People #2 and Mandandanji Peoples who have declined to sign either of the ILUA or the RTN Agreements.
A Cultural Heritage Management Plan has been entered as between the Grantee and both of the Native Title Parties pursuant to Part 7 Aboriginal Cultural Heritage Act 2003 on or about 16 July 2010. I have not been provided with a copy of the signed CHMP by the Grantee Party and so am unable to attach same for your reference.
Any concerns that either of my clients might have about environmental matters are being addressed in a comprehensive EIS that has been approved by the State and is currently awaiting approval by the Federal Government.
A s31 Agreement has also been executed (by all persons comprising the Iman People #2 and Mandandanji Applicants – other than those who are in the record as having refused to do so) as between the State, the Grantee Party and the Native Title Parties. Similarly an Ancillary Agreement has also been executed by all of those comprising the Applicant of Iman People #2 and Mandandanji – other than those who are on the record as having refused to sign the RTN Agreement. I have not been provided with copies of either of the executed s31 or Ancillary Agreements by the Grantee Party and as a result I am not in a position to provide a copy of either of those documents to the Tribunal.
There is disagreement amongst some of the persons comprising the Iman People #2 and Mandandanji People Applicants with respect of the content of the RTN Agreements. The same persons (other than Mrs Violet Cost – who is elderly and of ill health and relies upon other to provide her with advice) who refused to sign the QGC ILUA are one and the same as the persons who have refused to sign the RTN Agreement.
I have discussed the content of the RTN Agreement at length and on many occasions with all of the persons comprising the Iman People #2 and Mandandanji People Applicants. None of the persons who have refused to sign the RTN Agreement have ever been able to provide me with a coherent, logical and considered argument and/or objection to the content of the RTN Agreement.
Although I consider that such persons objections are of a personal nature only and are more concerned with internal claimant group politics and/or personality differences with the Grantee Party, those same persons would nonetheless vehemently argue that they have a legitimate objection to the RTN Agreement itself.
It would be in the overall best interests of the Iman People #2 and Mandandanji People claimant groups that the proposed Future Act be done under s38(1)(c) of the NTA and that the Ancillary Agreement that was entered as between the Native Title Party and the Grantee Party on or about 16 July 2010 be made a condition of the proposed Future Acts.
It is unfair to members of the respective claimant groups that the personal agenda’s of a few should affect the overall interests on the members of the claimant groups.
In all of the circumstances, I do not believe:
(a) I can assist the Tribunal any further,
(b) the matter can proceed by way of a consent determination. Rather the matter will need to proceed by way of an arbitrated determination.”
On 28 October 2010 Mr. Simon Grant, Acting Director Legal Services of the Department of Employment, Economic Development and Innovation lodged a Statement of Contentions on behalf of the government party. Apart from matters already dealt with, the Statement of Contentions provided as follows:
“6.    Section 39(1) of the NTA
6.1    The State is not aware of any information indicating that the grant of the Tenements would be likely to affect the enjoyment by the native title parties of their registered native title rights and interests. Nor is it aware of any information indicating that the grant of the Tenements would be likely to affect the way of life of the native title parties and the development of their social, cultural or economic structures.
6.2    As set out at paragraph 3.4 above, a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register undertaken by the State Register identified Aboriginal cultural heritage sites within the area of the Tenements. The Database and Register do not purport to be a record of all Aboriginal cultural heritage in Queensland. The ACHA, however, protects all Aboriginal cultural heritage whether on the Database or Register or not.
6.3    In any event, the State contends that the grant of the Tenements is not likely to affect the enjoyment by the Native Title Parties of their native title rights and interests, or adversely affect their way of life and the development of their social, cultural and economic structures because of the following factors:
(a)    the conditions on which the Tenements will be granted;
(b)    the statutory restrictions under the PGPSA and the EPA that will apply to the Tenements and the activities undertaken pursuant to the Tenements;
(c)     the operation of the ACHA;
(d)    there are no Aboriginal communities situated on the Tenements or in close proximity to the Tenements;
(e)     the limited area of the Tenements compared to the area contained within the external boundary of the Claims;
(f)     the area subject to the Tenements has been subject to prior exploration activities which may have already affected the Native Title Parties’ enjoyment of their registered native title rights and interests;
(g)     the underlying tenure of the Tenements is subject to interests held by third parties, including leasehold and freehold interests, that would have affected either the existence or the enjoyment of the Native Title Parties’ registered native title rights and interests; and
(h)    the activities of third parties conducted within the vicinity of the Tenements which would interfere with the enjoyment of the Native Title Parties’ registered native title rights and interests.
6.4    The State contends that there is no evidence to suggest that the freedom of access of Native Title Parties and their freedom to carry out rites, ceremonies or other culturally significant activities on the land will be affected by the grant of the Tenements. As mentioned in 6.3(g), the underlying tenure of the Tenements is already subject to interests held by third parties, including leasehold and freehold interests, that would have affected either the existence or the enjoyment of the Native Title Parties’ registered native title rights and interests.
6.5    The State further contends that native title parties do not object to the grant of the Tenements. In Monkey Mia Dolphin Resort Pty Ltd v Western Australia, Deputy President Sumner took the view that the ‘native title party’ referred to ‘the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant’.[1] On that basis, the Deputy President considered that it was appropriate to make a future act determination although some of the persons named as part of the applicant had not consented to the determination.[2] In Foster v Copper Strike Ltd,[3] moreover, Deputy President Sosso pointed out that since persons comprising the applicant are required to properly represent the interests, proposals and wishes of the wider claim group, the Tribunal was entitled to consider any material illustrating the views of that group under s 39(1)(b) of the NTA.
[1]Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 at 371 [20].
[2]In Yarran v Western Australia (2003) 177 FLR 34 at [33], Deputy President Sumner reaffirmed that view.
[3](2006) 200 FLR 182 at 190 [29].
While a minority of persons named as part of the Iman applicant and the Mandandanji applicant have not executed the s 31 Deeds and Ancillary Agreements, the claim groups themselves have no objection to the grant of the Tenements. This is clear from the letter from Mr Michael Owens, the legal representative of the Iman People and the Mandandanji People, to the Tribunal dated 19 October 2010.
6.6    The doing of the proposed acts is, moreover, in the public interest. In Carpentaria
Gold Pty Ltd/Birri People/Queensland, the Tribunal stated:[4]
‘[I]t is a matter of public knowledge that the grant of exploration permits is central to the maintenance of a healthy and feasible mining industry in Queensland.’
The same reasoning applies to the grant of the Tenements in this case.
7.    Section 39(2) of the NTA
7.1    The bulk of the area subject to the Tenements is currently the subject of freehold and leasehold interests.
8.    Section 39(3) of the NTA
8.1    As set out in paragraph 6.2 above, the ACHA protects all Aboriginal cultural heritage, whether or not it is recorded on the Aboriginal Cultural Heritage Database or Aboriginal Cultural Heritage Register.
[4][2010] NNTT 148 at [51].
9.    Section 39(4) of the NTA
9.1    The s 31 Deed and Ancillary Agreement have not been executed by all persons named as the applicant of the Mandandanji Claim and Iman#2 Claim. As mentioned in paragraph 6.5 above, however, the evidence suggests that the claim groups do not object to the grant of the Tenements.”
Finally, on 4 November 2010 Mr. Dominic McGann lodged with the Tribunal a Statement of Contentions as well as copies of the following documents:
(a)   Executed copy of the ancillary agreement between QGC Pty Limited and the Iman People #2;
(b)   Executed copy of the ancillary agreement between QGC Pty Limited and the Mandandanji People;
(c)   Executed copy of the Cultural Heritage Management Plan between QGC Limited and the Iman People #2; and
(d)   Executed copy of the Cultural Heritage Management Plan between QGC Limited and the Mandandanji People.
Outlined below are extracts from the Statement of Contentions of the grantee parties:
“Indigenous Land Use Agreements
1.     QGC Pty Limited (QGC), which is a Grantee Party and a Related Body Corporate of the other Grantee Parties, negotiated with each of the Native Title Parties for the purpose of entering, and did enter, into Indigenous Land Use Agreements (ILUAs) with them. The Iman People #2 – QGC ILUA was lodged with the NNTT for registration on 10 March 2010 and QGC understands that the notification period commenced on 3 November 2010, and the Mandandanji People – QGC ILUA was lodged with the NNTT for registration on 7 April 2010 and QGC understands that the notification period commenced on 3 November 2010.
2.     The ILUAs relate to the whole of the native title claim area of the Iman People #2 and the Mandandanji People, respectively, including the geographic areas of the Tenements.
3. The ILUAs each included an agreed Cultural Heritage Management Strategy in accordance with the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA).
Right to negotiate agreements
4.     As a result of the uncertainty regarding whether the ILUAs will be registered and, therefore, whether the operative provisions of the ILUAs relating to native title and cultural heritage will be in effect within the projected timetable for the QCLNG Project, QGC engaged in further negotiations with the Native Title Parties for the purpose of seeking separate agreements in relation to native title and cultural heritage.
5.     As stated in the Applications, the Grantee Parties entered into the following further agreements relating to native title:
(a)   Right to Negotiate Deed of Agreements, with the relevant Native Title Parties and, in each case, the Government Party, for each of the Tenements (RTN Agreements); and
(b)   Ancillary Agreements, between QGC and each of the Native Title Parties. Pursuant to the Ancillary Agreements, the Native Title Parties each consent to the grant of the Tenements and other ancillary matters, and QGC agrees to give certain benefits to the Native Title Parties. Those benefits include financial benefits, training, employment and an indigenous business strategy. The Grantee Parties and the Native Title Parties have also agreed, in the Ancillary Agreements, to cooperate and act in good faith with each other, and to establish committees for the purpose of, among other things, managing the benefits and exchanging information.
Cultural Heritage Management Plans (CHMPs)
6.     Separately, QGC entered into CHMPs with each of the Native Title Parties. The parties have entered into the CHMPs to ensure that any Aboriginal Cultural Heritage within the Project Area (as those terms are defined in the CHMPs) is identified, protected and managed in accordance with the ACHA. The CHMPs provide an agreed mechanism pursuant to which Aboriginal Cultural Heritage can be identified, protected and managed while works are performed in the Project Area, and provide for the participation of the Native Title Parties (defined in the CHMPs as the ‘Aboriginal Party’, having regard to the requirements of the ACHA).
7.     The CHMPs also set out the principles under which the parties will operate and they provide for, among other things, the establishment of cultural heritage coordination committees to assist with management of the parties’ obligations and relationships in relation to the CHMPs.
8.     The CHMPs have been executed by the majority, but not all, of the individuals who comprise the Registered Native Title Claimants of the Native Title Parties. Accordingly, the CHMPs have not currently been approved by the Chief Executive of the Department of Environment and Resource Management. If the CHMPs are not signed by all of the individuals, QGC intends to apply to the Land Court for mediation in relation to the CHMPs, and to seek approval of the CHMPs.
Future acts
9.     The Grantee Parties agree that any act by the Grantee Parties in relation to the Tenements should be done on the conditions and terms set out in the Ancillary Agreement. QGC will otherwise comply with the terms of the CHMPs and the RTN Agreements.
10.   Both the Ancillary Agreements[5] and the CHMPs[6] are subject to confidentiality provisions. Copies of these documents are provided in full. The Grantee Parties request that the NNTT acts consistently with those provisions in relation to any publication of the terms of any of the agreements. The Native Title Parties have consented to the provision of these documents to the NNTT for the purpose of the Applications.
QGC and the benefits of the proposed grants
11.   The Ancillary Agreements and the CHMPs provide both for certain benefits to the Native Title Parties and for cooperation and coordination between the Grantee Parties and the Native Title Parties.
12.   QGC is a wholly owned subsidiary of BG Group plc, a world leader in natural gas based in the United Kingdom. In 2009, BG Group’s total operating profit was 4.21 billion pounds. QGC has the capacity to meet its obligations under the agreements.
13.   QGC, as a business of BG Group, is required to adopt and implement BG Group’s Corporate Business Principles and Management Systems in its business, including environmental management, social and community development and health and safety. Social performance is considered key in BG Group and indicators are reported regularly.
14.   The Tenements are part of QGC’s QCLNG Project, which involves expanding QGC’s existing coal seam gas operations in the Surat Basin and transporting the gas via an underground pipeline to a processing plant and export facility on Curtis Island, near Gladstone. The QCLNG Project will deliver significant economic benefits to Australia, particularly in Queensland. Those benefits include the direct benefits of the creation of approximately 5,000 jobs and the growth of the Queensland economy.
[5] Clause 13.
[6] Clause 17.9.
The proposed grants
15.   For the reasons set out in the submissions made on behalf of the Government Party, grants of the Tenements are unlikely to detrimentally impact the enjoyment of native title rights and interests, the way of life, cultural and traditions of the Native Title Parties or the development of their social, cultural and economic structures. Nor will the grants detrimentally impact on freedom of access, or any area of site of particular significance to the Native Title Parties.
16.   On the basis of the submissions made on behalf of the Native Title Parties and the Government Party, the Grantee Parties submit that it is in the public interest and it is the Native Title Parties’ wishes that the Tenements be granted.
17.   The Grantee Parties seek grants on the terms and conditions set out in the Ancillary Agreements and CHMPs.

It is a matter of public record that disagreements between those persons comprising the Applicant of the Iman People #2 claim group have resulted in the intervention of the Tribunal, the Land Court of Queensland as well as the Federal Court. Earlier this year I made a section 38 determination following the refusal of Ms. Madonna Barnes to execute a future act agreement – see Tatow & Ors (Iman People #2)/Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd, Sumisho Coal Australia Pty Ltd/Queensland [2010] NNTTA 54. Similarly the Land Court was involved in litigation dealing with the refusal of Ms. Barnes to execute a Cultural Heritage Management Plan – Xstrata Coal Queensland Pty Ltd & Ors v Tatow & Ors [2008] QLC 226.
More recently the Federal Court dealt with the same negotiations that are currently before the Tribunal in QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019. This decision dealt with the Indigenous Land Use Agreement referred to above which was successfully submitted to a claim group authorisation meeting on 5 December 2009. In his judgment Reeves J outlined the following background to the matter before him (at [3] – [6]):
“3. QGC wants to develop a natural gas project in the Surat Basin in southern Queensland. The Iman #2 claim covers the area of land where this project is to be located. This necessarily involves QGC undertaking ‘future act’ activities on the land that will affect the native title rights and interests the Iman People claim to hold.
4. In late 2008 QGC commenced negotiations with the Iman People with a view to entering into an agreement that would operate as an ILUA. Those negotiations eventually resulted in a written agreement being prepared, which I will refer to in these reasons as the QGC – Iman agreement. The first section of the QGC – Iman agreement is headed ‘Parties’. It describes the parties to the agreement as follows:
QGC Limited ACN 089 642 553 and on behalf of QGC
Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes in their capacity as the Registered Native Title Claimant for the Iman People #2’s Native Title Claim (RNTC).
5. The QGC – Iman agreement was submitted to an authorisation meeting of the Iman People on 5 December 2009. At that meeting, the members of the Iman #2 claim group were present, together with a number of other indigenous persons who claimed to hold native title in relation to the land, but were not at that time included in the Iman #2 claim group. In order to avoid the many other expressions that are expressly defined in the Act, where it is appropriate I will refer to this group of persons in these reasons as the native title contracting group. During the meeting, that group agreed to, and adopted, a decision-making process and then followed that decision-making process to pass a number of resolutions. They included resolutions:
· authorising the making of the QGC – Iman agreement; and
· authorising QGC to apply to the Native Title Registrar to have the QGC – Iman agreement registered on the Register of ILUAs.
The latter was also reflected in cl5.1(c) of the QGC – Iman agreement, which provided that: ‘The Parties agree to this Agreement being registered’. In addition, the members of the Iman #2 claim group separately resolved to direct that all, or a majority of, the members of the RNTC, sign the QGC – Iman agreement.
6. Subsequent to this authorisation meeting, all the members of the RNTC, with the exception of Ms Barnes, signed the QGC – Iman agreement.”
As is clear from the above extract, the Iman People #2 claim group authorised the execution of an ILUA involving the same gas project which is the subject of the matter before the Tribunal. It is also made clear from the grantee parties’ submission, that due to the uncertainty surrounding the registration of the ILUA, which in turn led to the litigation in the Federal Court, further and separate agreements were negotiated. It is these further and separate agreements that are before the Tribunal. Nonetheless, it is clear that so far as the Iman People #2 claim group is concerned, there have been extensive negotiations by the grantee parties and broad accord with the claim group.
It is not necessary for the purposes of this matter to deal at any length with the developing jurisprudence on the execution of future act agreements where there is a split within the persons comprising the Applicant. The conclusions reached by Reeves J in QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019 specifically relate to the statutory provisions regarding Indigenous Land Use Agreements. While his Honour provided a very useful précis of the history of QGC and claim group negotiations, his legal findings are relevant only to the execution and registration of ILUAs and provide no sound basis for the Tribunal making a determination pursuant to s.38.
Nonetheless, there is clearly a growing body of Federal Court authority on the implications of a claim group authorising an agreement when subsequently one or more of the persons comprising the Applicant demur and refuse to execute the agreement.
There is a clear line of Federal Court authority, including the recent decision of Gilmour J in Tigan v Western Australia [2010] FCA 993, that the persons comprising the Applicant of a claim group are required to act collectively. A majority-decision making process is not consistent with the requirements of the Act. However, this does not mean that there must be unanimity amongst all of the persons comprising the Applicant. The Act contemplates authorisation or execution by so many of the persons comprising the Applicant who continue to be willing and able to discharge their statutory responsibilities – Doolan v Native Title Registrar (2007) 158 FCR 56 at [56] – [59].
Accordingly, it is important when determining whether a consent determination is open to the Tribunal to ascertain why all of the persons comprising the Applicant have failed to execute a future act agreement. Where such failure is unrelated to the agreement and relates to a failure to discharge the responsibilities of an Applicant then, following Doolan, it is open to the Tribunal to make a consent determination. However, where the failure to sign is a manifestation of either a disagreement with the grantee party over the terms of the agreement or a manifestation of broad discord within the claim group, then the question of whether a consent determination can be made is problematic. In such cases an arbitrated outcome is the appropriate course of action.
In this matter I am not confident that the refusal to execute the future act agreements by all of the persons comprising the Applicant the Iman People #2 and the Mandandanji People, can be categorised as simply a failure by the dissenting persons to carry out their duty as an Applicant. This point is made clear by Mr Owens who, in his Statement of Contentions of 19 October 2010 states quite clearly: “There is disagreement amongst some of the persons comprising the Iman People #2 and Mandandanji People Applicants with respect to the content of the RTN Agreements.”
In circumstances such as these the appropriate course of action is to make a determination pursuant to s.38 on the basis of the material before the Tribunal. Such a determination is not a consensual one of the type explained in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, the principles underpinning which were further clarified in Foster v Copper Strike Ltd (2006) 200 FLR 200. The latter determination was referred to in submissions to the Court in Tigan and Gilmour J said (at [29]): “The respondents submit that decisions of the National Native Title Tribunal support their contentions on this issue. The applicant on the other hand has provided very persuasive written submissions that this is not the case, and the Tribunal’s approach is consistent with that taken in this Court.”
Where there is either no evidence from a native title party, or evidence of conflict within the Applicant, the practice of the Tribunal is to make a determination on the basis of the material before it, having regard to its overarching obligation to make a determination within a relatively short time frame. Subject to providing the parties with procedural fairness, the obligation on the Tribunal is to make a determination even if there is relatively limited evidence. As the Tribunal noted in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland [2006] NNTTA 3 (at [16]):
“Section 39 is drafted in mandatory terms. The Tribunal must take into account the enumerated criteria. Properly read this 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 merely, that in making a determination any evidence falling within the enumerated categories must be factored into a section 38 determination.”

Legal Principles

Section 38 of the Act provides that the Tribunal must make a determination either that the relevant future act must not be done or may be done with or without conditions. The Tribunal is prevented from making a determination subject to profit sharing conditions – s.38(2).
The criteria for making a future act determination are set out in section 39 of the Act. The section provides as follows:
“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.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.”
The long accepted approach by the Tribunal to applying the criteria outlined in s.39 was explained in Western Australia v Thomas (1996) 133 FLR 124 (at 165-166) as follows:
“We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. 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 interest 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, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any matter we consider relevant.
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.”
In this matter there is relatively little evidence before the Tribunal about any of the matters that need to be addressed when weighing the various criteria set out in s.39(1). Subsection 39(4) however, specifically requires the Tribunal to ascertain whether there are relevant issues on which the negotiation parties agree, before making a determination. If there are and the parties consent, then in making its determination the Tribunal must take that agreement into account and need not take into account the s.39(1) criteria, to the extent that they relate to those issues.
In this matter there is broad agreement on the form of determination that the Tribunal should make. Although as previously stated, there is not a basis for making a consent determination, nonetheless the unanimity of opinion amongst the legal representatives of the parties is a matter that I have taken into account, particularly having regard to the operation of s.39(4).

Subparagraph 39(1)(a)(i) and subsection 39(2) – enjoyment of registered native title rights and interests

The Tribunal proceeds on the assumption “that each of the native title rights and interests described in the application exist” – Western Australia v Thomas (1996) 133 FLR 124 at 167. Subparagraph 39(1)(a)(i) requires the Tribunal to determine the likely impact of the proposed future acts on the registered native title rights and interests of each native title party, and not assume that there will be in fact, an impact on those rights and interests. Any determined native title rights and interests will not be extinguished by the grant of the tenements; rather, the non-extinguishment principle applies – ss.24MD(3)(8) and 238.
Sensibly such a weighing exercise can only operate where there is actual evidence of the exercise of the registered native title rights and interests on, or in close proximity to, the area of the tenements. The only party that can provide such evidence is the relevant native title party. While there is no obligation imposed on a native title party to provide such evidence, as a matter of common sense there is a responsibility to do so if the relevant native title party has concerns about the granting of a proposed tenement – Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia [2003] NNTTA 26 at [25] per Deputy President Sumner.
In this matter no evidence has been provided by either of the native title parties of the past, present or potential exercise or enjoyment of their registered native title rights and interests. In the absence of such evidence the Tribunal will proceed on the basis of the information and submissions that have been provided by the other negotiation parties.
The Tribunal is required to take into account non-native title rights and interests in relation to the land and waters concerned – s.38(2). The underlying tenure of the tenements is leasehold land, as well as reserves and permits to occupy. Importantly the subject land and waters have been the subject of numerous Authorities to Prospect and Petroleum Leases. The government party in its compendious contentions, set out in annexure 2 and 14 -17 those previous tenements, as well as the underlying tenure information (at annexure 7 – 17).
The government party contended (para 6.3) that the grant of the tenements would not be likely to affect the enjoyment by the native title parties of their registered native title rights and interests, or adversely affect their way of life (s.39(1)(a)(ii)) or the development of their social, cultural and economic structures (s.39(1)(a)(iii)) because of the following factors:
(a)The conditions on which the tenements will be granted;
(b)The restrictions and protections in the legislative regime governing the tenements, including the Petroleum and Gas (Production and Safety) Act 2004 and the Aboriginal Cultural Heritage Act 2003 (Qld);
(c)The absence of any Aboriginal communities situated on, or in close proximity to, the tenements;
(d)The limited area of the tenements when compared to the area contained within the external boundaries of both native title determination applications;
(e)The area of the tenements has been subject to prior exploration activities which may have already affected the native title parties’ enjoyment of their registered native title rights and interests;
(f)The underlying tenure of tenements is largely held by third parties, including leasehold and freehold interests, that would have affected either the existence or the enjoyment of the native title parties’ registered native title rights and interests.
While there is no substantive evidence of the exercise of the registered native title rights of either native title party, the history of the negotiations between the grantee parties and both native title parties highlights the extensive work that has been undertaken by the grantee parties in meeting with members of both claim groups and attempting to negotiate comprehensive settlement packages. There is no material before me indicating that the grant of the tenements will negatively impact on the registered native title rights and interests of either native title party.
Apart from the factors mentioned by the government party, I have also taken into account the operation of the non-extinguishment principle in section 24MD(3)(a) in relation to the granting of the tenements.

Subparagraph 39(1)(a)(ii) – way of life, culture and traditions of the native title parties

The Tribunal has no evidence before it to base a finding that there would be any negative impact by the granting of the tenements on the way of life, culture and traditions of the native title parties.
Further, the Tribunal has been presented with the ancillary agreements and cultural heritage management plans which were negotiated with both native title parties. The terms of each of these agreements is aimed at minimising the impact of the doing of the future acts on the way of life, culture and traditions of both native title parties.
In evaluating this matter, then, I find that the grantee parties are likely to carry out activities under the proposed future acts in accordance with comprehensive agreements, as well as an overarching legislative regime which cumulatively, are designed to ensure that the way of life, culture and traditions of both native title parties are protected.

Subparagraph 39(1)(a)(iii) – development of social, cultural and economic structures

The Tribunal has scant evidence before it that assists in undertaking an evaluation involving this subparagraph. Insofar as there is any material, it is material supplied by the grantee party which suggests that the grant of the tenements will have a positive impact on the native title parties by providing an income stream and possible employment opportunities. To that extent, the likely impact of the grant of the tenements would be to strengthen the social, cultural and economic structures of the native title parties.

Subparagraph 39(1)(a)(iv) – freedom of access and to carry out rites, ceremonies or other activities of cultural significance

In evaluating this subparagraph I have taken into account the following factors:
(a)     the absence of any evidence that members of either native title party have accessed the land and waters comprising the tenements recently or, even if they have, any evidence of the regularity of such visits, the numbers visiting and the length and nature of the visits;
(b)     the absence of any evidence of any rites, ceremonies or other activities of cultural significance being carried out on any of the tenements, or land and waters in the immediate vicinity of such tenements;
(c)     the grantee parties in each of the future act determination applications stated in paragraph 11 that, to the extent the relevant work programs allowed, the native title parties would be free to access and enjoy their native title rights and interests so that the grantee parties and the native title parties will be able to co-exist (subject to any statutory and occupational health and safety requirements); and
(d)     the relatively small area of the tenements in comparison to the area of the native title determination applications.
Accordingly, I find that the grant of tenements is unlikely to have any significant impact on the ability of members of both native title parties to access the subject lands and waters or their freedom to carry out rites, ceremonies or other activities of cultural significance on the relevant land and waters in accordance with their traditions.

Subparagraph 39(1)(a)(v) – sites of particular significance

This subparagraph focuses on sites of “particular significance”. That term was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 1 (at 23 – 35) as follows: “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. 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 section 237 (the expedited procedure), this passage has been endorsed on a number of occasions by various Tribunal Members as the correct approach to understanding this subparagraph – see, for example, Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46 at 70.
However, no evidence has been provided to the Tribunal by either native title party of any sites of particular significance on or near to any of the tenements. The government party informed the Tribunal that a search of the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register identified a number of Aboriginal cultural heritage sites within the area of the tenements. These sites are set out in annexure 18 to the government party’s Statement of Contentions. A perusal of this material indicates that there are a great many sites identified, and certainly in excess of 100. Almost all of these “sites” are described in short hand fashion either as “tree” or “artefact”.
As previously highlighted there is no further material before the Tribunal about any of these sites. For example, there is no evidence describing any site, its significance or its relevance to the laws and customs of either native title party. In short, there is no material before the Tribunal that suggests that any of these sites is of ‘particular significance’ as explained by Carr J.
An area or site can only be characterised as of ‘particular significance’ if it is identified by a native title party, its significance explained and that the person identifying the area or site has the necessary authority to speak about the traditions of the claim group – Little v Western Australia [2001] FCA 1706. It is not ordinarily possible for the Tribunal to make a finding that an area or site is of “particular significance” without direct evidence from a native title party. Possible exceptions to this proposition are where there is direct and compelling evidence from government databases, previous cultural heritage studies or previous direct evidence from a qualified member of the claim group.
I find that there is no direct or indirect evidence before the Tribunal identifying any areas or sites of particular significance to members of either native title party.

Subparagraph 39(1)(b) – interests, proposals, opinions or wishes of the native title parties

There is no evidence that would materially assist the Tribunal in evaluating the matters outlined in this subparagraph.
There is uncontested evidence at least so far as the Iman People #2 claim group is concerned, that its members authorised the execution of an Indigenous Land Use Agreement with the relevant grantee parties.
There is also uncontested evidence that the grantee parties have negotiated for some time with each native title party, and that there appears to be broad support in both claim groups for the grant of the tenements.
The ancillary agreements and cultural heritage management plans provided to the Tribunal by the grantee parties provide considerable benefits for the members of both claim groups. I infer from the statements of Mr. Owens that the majority of the members of both claim groups are keen for the proposed future acts to be granted in order that the benefits negotiated can accrue for their members.

Subparagraph 39(1)(c) - economic or other significance of the proposed future acts

The nature of the evaluative task required of the Tribunal by this subparagraph was explained in Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland [2006] NNTTA 3 (at [70] – [73]) as follows:
“[70] This paragraph requires the Tribunal to evaluate the economic or other significance of the act to the wider community as well as Aboriginal and Torres Strait Islanders who live in that area.
[71] A few observations can be made about the statutory task required of the Tribunal. First, the paragraph focuses on the significance of the act. It is not a generalized inquiry about the importance of exploration or mining to the economy (localized or national). It is a specific evaluation about the impact of the future act the subject of the inquiry. Accordingly, the Tribunal is not required under this paragraph to look any further than the evidence of how the proposed future act will impact on the economies and persons specified. Issues about the benefits of the mining industry to the health of the local, Queensland or Australian economy are not relevant to this paragraph. The only focus of this paragraph is the act in question and the only issue which the Tribunal is required to evaluate is the significance of the future act. The symbolic, cumulative or ripple impacts of the future act fall outside the purview of this paragraph.
[72] Second, the inquiry is not limited to the economic consequences of the proposed future act – see Western Australia v Thomas (1996) 133 FLR 124 at 175. The term “other significance” is potentially broad and can only be sensibly dealt with in terms of the evidence produced at a particular inquiry. I do not read the term “other significance” as being limited to impacts of an economic or wealth related nature. It could be that the doing of the future act could have beneficial impacts for the advancement of medical or related research. For example, the minerals proposed to be extracted could be critical for medical research, or any other field of human endeavour. The “significance” of granting the right to mine must therefore be viewed in an expansive sense and not purely and necessarily from the quantum of money that will be generated from the extraction of the relevant material from the relevant land or waters.
[73] Finally, the Tribunal is required to evaluate the significance of the proposed act to indigenous persons living within close proximity to the proposed tenement. It should be noted that the Act is not worded to limit the inquiry to members of the native title claim group. Rather, the inquiry focuses on the significance of the act to indigenous persons generally. 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. The 1998 amendments to this paragraph were designed to ensure that in any proper inquiry the interests of local indigenous persons living and having responsibilities in the general area, were given proper weight.”
The grantee party contended that the tenements are part of Queensland Gas Company’s QCLNG Project, which involves expanding QGC’s existing coal seam gas operations in the Surat Basin and transporting gas via an underground pipeline to a processing plant and export facility on Curtis Island, near Gladstone. It is contended that this will deliver significant economic benefits to Queensland and the nation, including the creation of approximately 5,000 jobs.
There is no doubt that this project will be of significant economic importance locally, regionally and for Australia. It will result in the creation of many jobs in a number of locations, both in the short and the long term.
I therefore find that the grant of the tenements is likely to facilitate the commencement of a major exploration, extraction, processing and infrastructure project that will be of economic significance to Queensland and Australia.

Subparagraph 39(1)(e) – the public interest

Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this subparagraph 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. In this regard reference can be made to the following observations of Nicholson J in Evans v Western Australia (1997) 77 FCR 193 at 215:
“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.”
The grantee party has highlighted the significant benefits that the grant of these tenements will create for the national economy however it is also pertinent to consider the importance that the grant of these tenements will have for the petroleum and gas industry in this State.

Subparagraph 39(1)(f) – any other relevant matter

The term “any other matter” provides the Tribunal with a broad charter to take into consideration a range of matters. However, the main focus of this subparagraph is usually on environmental concerns.
In this matter there is scant material before the Tribunal which materially assists in evaluating any other matter of relevance. I do note, however, that the following information was provided by Mr. Owens which is of some assistance in weighing this consideration: “Any concerns that either of my clients might have about environmental matters are being addressed in a comprehensive EIS that has been approved by the State and is currently awaiting approval by the Federal Government.”

Conclusion

The tenements comprise part of a significant natural gas project which, when operational, will result in the creation of many jobs and considerable wealth for the national economy. It is also a project that will result in both native title parties receiving a number of consequential benefits.
It is also clear that the grantee parties have negotiated for some time with both native title parties, and there is broad agreement amongst the members of both claim groups that this project should proceed and that the tenements be granted.
There is also some dissension in both claim groups. The fact that there is no unanimity of opinion is not surprising. A project such as this would, in the normal course, be the subject of various points of view. Importantly for the Tribunal, it appears that there is broad consensus amongst the members of both claim groups that it is in the interests of the native title parties that the proposed future acts be done.
It is not possible to make a consensual determination under s.38. That is so because it is evident that some of the persons comprising the Applicant of each native title party oppose the grant of the tenements. However, the material before the Tribunal is sufficient to enable the making of a conditional determination pursuant to s.38 that the future acts may be done.

Determination

The determination of the Tribunal is that the acts, namely:
(a)     the grant of Petroleum Leases PL276, PL277, PL299;
(b)     the grant of Authority to Prospect ATP889; and
(c)     the addition of excluded lands for ATP632, ATP651, ATP767, ATP768, ATP795, ATP852,

may be done subject to compliance by the grantee parties and the native title parties with the terms of:

(a)     the ancillary agreement between QGC Pty Limited and the Iman People #2;
(b)     the ancillary agreement between QGC Pty Limited and the Mandandanji People;
(c)     the Cultural Heritage Management Plan between the QGC Pty Limited and the Iman People #2; and
(d)     the Cultural Heritage Management Plan between QGC Pty Limited and the Mandandanji People;

each of which were lodged with the Tribunal on 4 November 2010 by McCullough Robertson Lawyers on behalf of the grantee parties.

John Sosso

Deputy President

SCHEDULE – DETERMINATION [2010] NNTTA 210 (17 December 2010)

Tenement	Government Party Notification	Future Act Determination Application Lodged	Future Act Determination Application No.	Member Appointed	Grantee Parties	Native Title Party & Application No.
ATP 852	13/01/10	29/09/10	QF10/15	30/09/10	Pure Energy Resources Limited	Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2 QC97/55 Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
ATP 768	13/01/10	29/09/10	QF10/16	30/09/10	BNG (Surat) Pty Ltd	Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2 QC97/55
PL 299	13/01/10	29/09/10	QF10/17	30/09/10	Pure Energy Resources Limited	Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2 QC97/55 Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
ATP 651	13/01/10	29/09/10	QF10/18	30/09/10	Queensland Gas Company Limited	Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2 QC97/55 Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
Tenement	Government Party Notification	Future Act Determination Application Lodged	Future Act Determination Application No.	Member Appointed	Grantee Parties	Native Title Party & Application No.
PL 276 & PL 277	13/01/10	29/09/10	QF10/19	30/09/10	Queensland Gas Company Limited (68%) BG International Limited (17%) A J Lucas Group Limited (15%)	Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2 QC97/55 Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
ATP 632	13/01/10	29/09/10	QF10/20	30/09/10	Queensland Gas Company Limited (90%) SGA (Queensland) Pty Ltd (10%)	Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
ATP 889	13/01/10	29/09/10	QF10/21	30/09/10	Pure Energy Resources Limited	Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10
ATP 767 & ATP 795	13/01/10	29/09/10	QF10/22	30/09/10	BNG (Surat) Pty Ltd	Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt on behalf of the Mandandanji People QC08/10

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Citations

Queensland Gas Company Limited & Ors/Iman People #2; Mandandanji People/Queensland [2010] NNTTA 210

Most Recent Citation

Burragubba v State of Queensland [2016] FCA 984

Cases Citing This Decision

3

Pilbara Stone Pty Ltd/ Angelina Cox & Others on behalf of Puutu Kunti Kurrama & Pinikura 2 / Western Australia [2013] NNTTA 22

Jax Coal Pty Ltd v Smallwood and Others [2011] NNTTA 46

Burragubba v State of Queensland [2016] FCA 984

Cases Cited

15

Statutory Material Cited

0

Dragutin Horvatic/Scott Gorringe & Ors (Mithaka People)/Queensland [2010] NNTTA 119

Cameron/Hoolihan & Ors (Gugu Badhun)/Queensland [2006] NNTTA 3

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50

*Date*	*Attempts at contact*
19 July 2010	Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.
19 July 2010	Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.
20 July 2010	Attempted to contact Ms. Barnes on 0488 609 629. The phone was not answered and a message was left.