Queensland/William Doyle & Ors (Kalkadoon People #4)/Syndicated Metals Limited; Minotaur Operations Pty Ltd; Birla Mt Gordon Pty Ltd; Flamingo Copper Mines Pty Ltd; North Queensland Mines Pty Ltd - [2011] NNTTA 206

NATIONAL NATIVE TITLE TRIBUNAL

Queensland/William Doyle & Ors (Kalkadoon People #4)/Syndicated Metals Limited; Minotaur Operations Pty Ltd; Birla Mt Gordon Pty Ltd; Flamingo Copper Mines Pty Ltd; North Queensland Mines Pty Ltd, [2011] NNTTA 206 (6 December 2011)

Application No: QF11/7, QF11/8, QF11/9, QF11/10, QF11/11

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

- and -

IN THE MATTER of an inquiry into Future Act Determination Application

State of Queensland (government party)

- and -

William Doyle, Noeleen Dempsey, Illona Parter, Sonny Condren, Hazel Munro, Sue Sarmardin Jr, Pat Kyle, Connie Craigie & Doug Bruce on behalf of Kalkadoon People #4

(native title party)

- and –

Syndicated Metals Limited, Minotaur Operations Pty Ltd, Birla Mt Gordon Pty Ltd, Flamingo Copper Mines Pty Ltd, North Queensland Mines Pty Ltd (grantee parties)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 6 December 2011

Representatives:
Government Party:             Ms Sara Newrick, Department of Employment, Economic Development and Innovation
Native Title Party:              Ms Linda Hansen, Chalk & Fitzgerald Lawyers & Consultants
Grantee Parties:  Mr Brian Martin, Hetherington Exploration & Mining Title Services Pty Ltd, Ms Catherine Dupont
Catchwords:  Native title – future acts – consent determination that the acts may be done.

Legislation:Native Title Act 1993 (Cth,) ss. 29, 30A, 31, 32, 35, 38, 39, 61, 62A, 75, 77

Cases: Foster v Copper Strike Ltd (2006) 200 FLR 182
Foster & Ors (Waanyi Peoples) & Anor/Zinifex Australia & Anor /Queensland QF 07/4 and 07/5 [2007] NNTTA 92 (24 October 2007) Deputy President Sosso
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Moore v Mungeranie (2005) 193 FLR 62
William Doyle & Ors (Kalkadoon People #4)/Queensland/Syndicated Metals Limited & Ors QO 11/12, 15, 17, 19, 24, 82, 83. 87, 87, 88 [2011] NNTTA 203 (24 November 2011) Deputy President Sosso

REASONS FOR FUTURE ACT DETERMINATION

On the dates specified in the attached schedule, the State of Queensland (“government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant various Exploration Permits for Mineral to the grantee parties listed in the attached schedule pursuant to the Mineral Resources Act 1989 (Qld).
The notices stated that the Exploration Permits would authorise the grantee parties to explore for minerals for a term not exceeding 5 years with a right to seek a renewal for a further 5 years. The notices also stated that it was proposed to grant the Exploration Permits subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 4, 26 May 2010 and the Native Title Protection Conditions 2, October 2010. The government party further asserted that the grant of the proposed tenements attracted the expedited procedure – s. 29(7).
The proposed tenements are situated within the boundaries of the Kalkadoon People #4 registered native title determination application (QUD579/05) (“native title party”).
The Kalkadoon People #4 native title determination application was entered on the Register of Native Title Claims on 15 March 2011. The persons who collectively comprise the Applicant are Mr William Doyle, Ms Noeleen Dempsey, Ms Illona Parter, Mr Sonny Condren, Ms Hazel Munro, Ms Sue Sarmardin Jr, Ms Pat Kyle, Ms Connie Craigie and Mr Doug Bruce.
The initial Kalkadoon People #4 native title determination application was filed with the Federal Court on 22 December 2005 and entered on the Register of Native Title Claims on 4 September 2006. The registered native title claimants for the initial application are the same registered native title claimants as in the current Kalkadoon People #4 native title determination application. By order of the Federal Court on 8 December 2009, this application was combined with the abutting Kalkadoon People #5 native title determination application. The combined application is now Kalkadoon People #4 (QUD579/2005).
On 17 January and 5 May 2011 the native title party lodged with the Tribunal expedited procedure objection applications pursuant to s. 32(3).
On 3 February and 9 May 2011 I was appointed as the Member to conduct the expedited procedure objection inquiries.
A number of status conferences were convened to deal with the expedited procedure objection applications during the course of 2011. The Tribunal was informed that the grantee parties and the native title party were engaged in substantive negotiations and were keen to finalise agreements without these matters proceeding to a formal inquiry. It subsequently became clear that, despite the desire of the parties to reach agreement, difficulties within the native title party were impeding efforts to formally execute agreements.
On 24 November 2011 Ms. Sara Newrick, on behalf of the government party, advised the Tribunal of the State’s withdrawal of the assertions of the expedited procedure in the following terms:
“Pursuant to section 32(7) of the NTA, the State of Queensland withdraws the assertion in the relevant section 29 notices that the proposal to grant Exploration Permits for Minerals set out in the attached schedule, are future acts attracting the expedited procedure. This withdrawal does not apply to other acts which may be listed in those notices, and is done on the basis that an application for a determination of the kind prescribed in section 38 of the NTA will be made by the State with the co-operation of the Native Title Party and Grantee Parties.”
As a consequence of the government party’s withdrawal of the assertions of the expedited procedure, the Tribunal no longer had jurisdiction to proceed. Accordingly, on 24 November 2011 I dismissed each of the expedited procedure objection applications – William Doyle & Ors (Kalkadoon People #4)/Queensland/Syndicated Metals Limited & Ors [2011] NNTTA 203.
On 24 November 2011 Ms Sara Newrick, on behalf of the government party, lodged with the Tribunal, pursuant to ss. 35 and 75, future act determination applications. The applications were made more than six months after the notification day thereby satisfying the requirement of s. 35(1)(a).
I was appointed the Member to conduct the future act determination inquiries on 24 November 2011, and accepted the future act determination applications (s. 77) on the same day.
The following information was set out in each of the future act determination applications:
“The negotiation parties have reached agreement in relation to the future acts, however the agreements have not been finalised due to the failure of one of the registered native title claimants, namely Mr Sonny Condren, to sign the agreements. The native title party’s representatives have advised that Mr Condren’s reasons for failing to sign are unrelated to the terms of the agreements. The State is not a party to the agreements and does not have copies of the agreements, however it is our understanding that these will be provided to the Tribunal by the native title party’s representatives.”
A preliminary conference was convened on 25 November 2011, and each of the parties participated. During that conference Directions were made requiring the government and native title parties to provide contentions by 30 November 2011 with the grantee parties at liberty to reply to any material provided by 1 December 2011.
On 30 November 2011 Ms Linda Hansen, on behalf of the native title party, lodged with the Tribunal the native title party’s Statement of Contentions. So far as is relevant, the following material appeared in the Contentions:
“7. The Native Title Party have been unable to finalise execution of the Agreements due to the failure of one of the registered claimants, Mr Sonny Condren, to sign them. So far as the other registered claimants are aware, the reasons for this are entirely unrelated to the content of each of the Agreements. There is at present an argument between Mr Condren and other registered claimants. In addition, Mr Condren’s wife has been seriously unwell since early 2011 and he is presently with her in Townsville where she is hospitalised. As a result Mr Condren has played no active role in relation to the native title claim or proposed future acts affecting native title in the claim since early 2011.
8. We note, however, that Mr Condren previously signed at least 4 of the 5 original Ancillary Agreements entered into with the Grantee Parties which the present Agreements seek to vary, including to add in the new EPMs.
9. Since the Agreements were finalised, the other registered claimants, and also personnel with Kalkadoon Community Pty Ltd – a corporation serving the claim group, the shareholders and directors of which are most of the registered claimants – have undertaken various attempts to have Mr Condren sign the Agreements. These efforts have included visits to his home, phone calls and seeking to have him sign either the agreements or a power of attorney document (which may allow another registered claimant to execute documents on his behalf). The power of attorney document was, as a last resort, left for him under the wipers on his car.
10. Further, the registered claimants have sought the assistance of Queensland South Native Title Services (“QSNTS”) (who advise that they have good relations with Mr Condren), to have them assist with obtaining his signature. QSNTS delivered the Agreements to Mr Condren on 19 November 2011 for him to sign.
11. However, all efforts made to date to obtain Mr Condren’s signature have been unsuccessful.”
Also on 30 November 2011 Ms. Newrick, on behalf of the government party, lodged Contentions to the Tribunal in the following terms:
“1.   This is the statement of contentions on behalf of the Government Party (“the State”) provided pursuant to paragraph 1 of the directions made by Deputy President Sosso of the National Native Title Tribunal (“the Tribunal”) on 25 November 2011.
2.   The State has been provided with a copy of the Native Title Party’s Statement of Contentions dated 30 November 2011.
3.   We understand that copies of the agreements between the Native Title Party and the Grantee Parties have been provided to the Tribunal.
4.   The State confirms the facts of these matters as set out in the Future Act Determination Application lodged with the Tribunal on 24 November 2011.
5.   The State accepts the native Title Party’s submission that agreements have been reached with the Grantee Parties in relation to the relevant future acts, but that these agreements have not been finalised as one of the registered native title claimants on behalf of the Native Title Party has not signed the agreements for reasons that are unrelated to the terms of the agreements.
6.   Mr Brian Martin and Ms Catherine Dupont, representing the Grantee Parties, advised the other parties and the Tribunal in writing on 21 November 2011 that the Grantee Parties agreed to the Tribunal making a consent determination in these matters.
7. The State submits that the Tribunal ought to make a consent determination pursuant to section 38(1)(c) of the Native Title Act 1993 (Cth) that the future acts may be done subject to compliance with the terms and conditions of the relevant agreements between the Native Title Party and the Grantee Parties as filed with the Tribunal.”
At paragraph 6 of the government party’s Statement of Contentions reference was made to the support of the grantee parties for the making of a consent determination. On 21 November Ms Dupont, on behalf of some of the grantee parties, made the following submission:
“Further to this morning’s status conference in relation to matters QO11/82 – EPM 18626 and QO11/83 – EPM 18627 held by Flamingo Copper Mines Pty Ltd and QO11/86 – EPM 18476 held by North Queensland Mines Pty Ltd, please be advised that Flamingo Copper Mines Pty Ltd & North Queensland Mines Pty Ltd both consent to the Consent to Determination application as discussed this morning.”
On 30 November 2011, Mr Martin on behalf of Birla Mt Gordon Pty Ltd, emailed as follows:
“I hereby agree to the proposed consent determination for this tenement in accordance with the enclosed copy of the proposed deed of variation.”
When a party has applied to the Tribunal for a future act determination pursuant to s. 38, the Tribunal must either make a determination that the act be done unconditionally or subject to conditions to be complied with by any of the parties or that the act must not be done. In making such a determination, the Tribunal is required to take into account the criteria set out in s. 39. Of importance in this regard is s. 39(4) which provides:
“(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.”
Over a number years the Tribunal has made future act consent determinations as a means of giving effect to agreements that have been reached following negotiations pursuant to s. 31(1)(b). Such determinations have been made when it is clear that agreement in principle has been reached by the negotiation parties, but not all of the signatures of the persons collectively comprising the Applicant can be obtained. The reasons for the failure to obtain all of the signatures are many. In some cases it can be due to the death of a person or persons, in others due to illness and incapacity and in some cases due to remoteness and events beyond the control of the relevant person or persons. In some instances one or more of the persons comprising the Applicant may be travelling or otherwise cannot be located or communicated with. For whatever reason there is one common thread linking these circumstances i.e. the failure of the person or persons to execute the relevant agreement is not as a result of that person or persons objecting to the actual terms of the agreement.
Another scenario which often occurs is when the person or persons not signing an agreement are in good health, can be located but refuse to sign as a matter of principle. Sometimes, due to disputes within the broader claim group, one or more of the persons partially comprising the Applicant will refuse to execute any further documents. If this refusal is not related to the terms of the agreement, or the manner in which the agreement was negotiated, but relates to issues concerning the claim group as a whole, the Tribunal has usually been prepared to make a consent determination.
The Tribunal has however, usually declined to make a consent determination when it is clear that one or more persons comprising the Applicant have refused to execute an agreement because they oppose either the making of the agreement, or the terms of the agreement or the manner in which the agreement was negotiated. In such cases the Tribunal has formed the view that there is not in reality, an agreement within the terms of s. 39(4) that can be relied upon. Examples of where the Tribunal has been prepared to make consent determinations are set out in Moore v Mungeranie (2005) 193 FLR 62 at [64]/79-80.
The legal basis for the making of consent determinations was set out by the Tribunal in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361. Deputy President Sumner referred to ss. 39(1)(f), 39(4) and 109(1) as factors which led him to conclude that the Tribunal had power to make a s. 38 determination by consent. On the key question of making such a determination when not all of the persons comprising the Applicant have given their consent, he said (370):
“In Placer (Granny Smith) Pty Ltd v Western Australia the Tribunal made a determination even though one of the 12 registered native title claimants did not consent. The Tribunal decided that a ‘native title party’ is not each registered native title claimant on the same claim but is the registered native title claimants acting collectively as representatives and agents for the claim group (s 62A of the Native Title Act) and that each registered native title claimant is not entitled to separate representation in a right to negotiate inquiry: Placer (Granny Smith) Pty Ltd v Western Australia (at 5-11). It also follows from this decision that the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision-making processes of the native title claim group.”
As Deputy President Sumner emphasises, when determining whether to make a consent determination, the Tribunal places particular regard on whether the negotiation parties are legally represented. As was pointed out in Moore v Mungeranie (2005) 193 FLR 62 at [58]/77:
“When the negotiation parties, in particular the native title and grantee parties, are legally represented the Tribunal is able to rely on the assurances and undertakings of the legal practitioners. Furthermore, the Tribunal is able to proceed on the initial assumption, that there has been some parity of bargaining power in the negotiations, and that the parties have entered into any agreement on the basis of competent legal advice. In short, the Tribunal can take some comfort that the negotiation parties have reached an accord upon a foundation of proper advice and due consideration. This assumption of course can be displaced, but having legally represented parties is a sound starting point.”
The Tribunal has emphasised on a number of occasions that it will, having regard to these principles, seek to facilitate the effectuation of “in principle” agreements reached by the negotiation parties. However, the Tribunal has no legislative basis to make a “consent” determination when the Applicant is in gridlock because of internal disputes. There can be no basis for making a “consent” determination if a claim group, and the Applicant of that claim group, is internally divided. In such circumstances there cannot be said to be an “in principle” agreement, because the condition precedent for the formation of such an agreement is lacking – see Foster v Copper Strike Ltd (2006) 200 FLR 182 at [36]/192.
It is clear from the material presented to the Tribunal that despite agreement being reached in principle between the native title party and each of the grantee parties, the refusal of Mr. Condren to execute the various Deeds of Variation has prevented the conclusion of the matters.
These matters are somewhat unusual in that there is material before the Tribunal that Mr. Condren has previously executed agreements with each of the grantee parties. More than that, what is proposed is that those previous agreements be altered, only by inclusion of additional tenements. In short, the Deeds of Variation which Mr. Condren has failed to execute do not substantively vary the terms of the main agreement but, inter alia, seek to include the proposed tenements within the terms of the substantive agreements.
The Tribunal was provided with a copy of each of the following agreements:
(a)Negotiated Agreement between the Kalkadoon People #4 and Syndicated Metals Limited entered into 2007;
(b)Exploration Agreement between Kalkadoon People #4 and Minotaur Operations Ltd entered into 25 June 2010;
(c)Exploration Agreement between Kalkadoon People #4 and Birla Mt Gordon Pty Ltd entered into 2009;
(d)Exploration Agreement between Kalkadoon People #4, Kalkadoon People #5 and Flamingo Copper Mines Pty Ltd entered into 20 October 2009; and
(e)Exploration Agreement between Kalkadoon People #4 and North Queensland Mines Pty Limited entered into 20 October 2009.

In each case the relevant Agreement was executed by Mr. Condren. The copy of the Negotiation Agreement with Syndicated Metals Limited supplied to the Tribunal is the counterpart version executed by that grantee party. The Tribunal was not supplied with the counterpart version executed by the native title party. However, I have proceeded on the basis of the material before the Tribunal that this Agreement was executed by all of the persons comprising the Applicant of the native title party.
It should also be noted that the Deeds of Variation before the Tribunal relate not only to the proposed tenements the subject of this Determination but also other tenements the subject of negotiation between the grantee parties and the native title party. This Determination relates only to the proposed future acts before the Tribunal, but for the purposes of description, the Determination refers to each of the tenements to which the Deeds relate.
In short, in this matter it is clear that there is agreement in principle between all of the parties. The failure of Mr. Condren to execute the various Deeds of Variation would appear to be unrelated to the terms of those Deeds. The following key matters are apparent from the material before the Tribunal:
(a)the draft Deeds of Variation and original Agreements between the native title party and the grantee parties have been provided to the Tribunal;
(b)in each case the original Agreement was executed by all persons comprising the Applicant of the native title party, including Mr. Condren;
(c)the agreements reached “in principle” involved the execution of Deeds of Variation aimed at including the various proposed tenements within the terms of the already executed Agreements;
(d)I have perused both the original Agreements and the Deeds of Variation. The original Agreements provide terms and conditions that are favourable to the native title party;
(e)the failure of Mr. Condren to execute the Deeds of Variation is, on its face, unrelated to the terms of the Deeds of Variation or dissatisfaction with the terms of the various substantive Agreements;
(f)the native title party is legally represented, and has had the benefit of professional legal advice throughout this process;
(g) the grantee parties consent to the Tribunal making a consent determination; and
(h)the government party has been closely involved in this process and is satisfied that there is a proper legal basis for the Tribunal making a consent determination.

Determination

By consent, the determination of the Tribunal is that the acts, namely the grant of various Exploration Permits for Mineral as detailed in the attached schedule, may be done subject to compliance with the terms and conditions of the following partially executed Deeds of Variation lodged with the Tribunal:
(a)     Deed of Variation between Syndicated Metals Limited and Kalkadoon People #4 for EPM 13855, 13869, 13870, 13903, 13904, 17638 and 18492;
(b)     Deed of Variation between Minotaur Operations Pty Ltd and Kalkadoon People #4 for EPM 18068;
(c)     Deed of Variation between Birla Mt Gordon Pty Ltd and Kalkadoon People #4 for EPM 17990 and 18475;
(d)     Deed of Variation between Flamingo Copper Mines Pty Ltd and Kalkadoon People #4 for EPM 18626, 18627, 18097, 18106 and 18657; and
(e)     Deed of Variation between North Queensland Mines Pty Limited and Kalkadoon People #4 for EPM 18476 and 18508.

John Sosso

Deputy President

SCHEDULE – DETERMINATION [2011] NNTTA 206 (6 December 2011)

Tenement EPM	Government Party Notification	Notification Day s 29(4)(a)	Future Act Application Lodged	Future Act Application No.	Member Appointed	Grantee Party	Native Title Party & Application No.
13855 13869 13903 13904 17638 18492	30/11/11 19/08/10 30/11/11 19/08/10 19/08/10 19/08/10	5/01/11 29/09/10 5/01/11 29/09/10 29/09/10 29/09/10	24/11/11	QF11/7	24/11/11	Syndicated Metals Limited	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 QC10/4
18068	5/08/11	15/09/10	24/11/11	QF11/8	24/11/11	Minotaur Operations Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 QC10/4
18475	5/08/10	15/09/10	24/11/11	QF11/9	24/11/11	Birla Mt Gordon Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 QC10/4
18626 18627	30/11/10 30/11/10	5/01/11 5/01/11	24/11/11	QF11/10	24/11/11	Flamingo Copper Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 QC10/04
18476	30/11/11	5/01/11	24/11/11	QF11/11	24/11/11	North Queensland Mines Pty Ltd	William Doyle, Noelene Dempsey, Ilona Parter, Sonny Condren, Hazel Munro, Sue Samardin Jr, Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 QC10/4