Queensland/William Doyle & Ors (Kalkadoon People #4), Valerie Punch & Ors (Yulluna People) /Mt Dockerell Mining Pty Ltd; Syndicated Metals Limited - [2012] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Queensland/William Doyle & Ors (Kalkadoon People #4), Valerie Punch & Ors (Yulluna People) /Mt Dockerell Mining Pty Ltd; Syndicated Metals Limited, [2012] NNTTA 22 (12 March 2012)

Application No: QF12/1

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

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IN THE MATTER of an inquiry into Future Act Determination Application

State of Queensland (government party)

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William Doyle, Noelene Dempsey, Illona Parter, Sonny Condren, Hazel Munro, Sue Sarmardin (Jr), Pat Kyle, Connie Craigie and Doug Bruce on behalf of the Kalkadoon People #4 (first native title party)

Valery Punch, Brian Sullivan, Hazel Sullivan, Stan Sullivan and Allan Naumann on behalf of the Yulluna People (second native title party

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Mt Dockerell Mining Pty Ltd &

Syndicated Metals Limited (grantee party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 12 March 2012

Hearing Date: 20 February 2012
Representatives:
Native Title Parties: Ms Linda Hansen, Chalk & Fitzgerald Lawyers & Consultants
Clare Farley, P & E Law

Government Party:             Ms Sara Newrick, Department of Employment, Economic Development and Innovation
Grantee Parties:  Mr Brian Martin, Hetherington Exploration & Mining Title Services
Catchwords:     Native title – future act – inability to finalise Deed of Variation – consent determination that the act may be done.
Legislation:Native Title Act 1993 (Cth,) ss. 29, 31, 32, 35, 38, 39, 75, 77

Cases: Doyle v Queensland (No 3) [2011] FCA 1466
Foster v Copper Strike Ltd (2006) 200 FLR 182
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Moore v Mungeranie (2005) 193 FLR 62
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) Deputy President Sosso

William Doyle & Ors (Kalkadoon People #4)/Queensland/Mt Dockerell Mining Pty Ltd & Syndicated Metals Limited, [2012] NNTTA 15 (16 February 2012) Deputy President Sosso.

REASONS FOR FUTURE ACT DETERMINATION

On 19 August 2010, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant a renewal of Exploration Permit for Mineral (EPM) 13870 (“the proposed tenement”), with new and different conditions being imposed on the renewed Exploration Permit, to Mt Dockerell Mining Pty Ltd (51%) and Syndicated Metals Limited (49%) (“the grantee party”), pursuant to the Mineral Resources Act 1989 (Qld). In accordance with s. 29(5), 29 September 2010 was specified as the notification day.
The notice stated that the Exploration Permit was originally granted as a High Impact Exploration Permit under the Mineral Resources Act 1989. It would appear that the Exploration Permit was issued under the Alternate State Provisions (Part 15) of the Mineral Resources Act 1989. The government party proposes to renew the Exploration Permit not as a High Impact Exploration Permit, but as an Exploration Permit with new conditions imposed. The new conditions to be imposed are the General Conditions Version 4, 26 May 2010 and the Native Title Protection Conditions 1.1(a), 22 August 2003. The renewal of the proposed tenement with the new conditions would authorise the grantee party to explore for minerals for a period not exceeding five (5) years.
The government party further asserted that the renewal of the proposed tenement with new and different conditions attracted the expedited procedure – s. 29(7).
The proposed tenement consists of 3 parts which are described as being approximately 30 kilometres north north-east, approximately 9 kilometres north north-west and approximately 21 kilometres north from Duchess situated within the local government area of the Cloncurry Shire Council.
The boundaries of the Kalkadoon People #4 native title determination application (QUD579/05) (“the first native title party”) which was entered on the Register of Native Title Claims on 15 March 2011, cover the area of the proposed tenement by approximately 82.828 square kilometres. On 12 December 2011 in Doyle v Queensland (No 3) [2011] FCA 1466, Dowsett J made a conditional determination of native title in favour of the first native title party. However, pursuant to Order 11, the determination does not take effected until certain Indigenous Land Use Agreements are entered on the Register of Indigenous Land Use Agreements. The first native title party, in its Statement of Contentions dated 24 February 2012, advised that the requirements of Order 11 had not yet been met and that, accordingly, the first native title party continues to be the registered claimant for the purpose of this matter.
The history of the various Kalkadoon native title determination applications is set out in 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 at [5].
The boundaries of the Yulluna People native title determination application (QUD189/10) (“second native title party”) which was entered on the Register of Native Title Claims on 16 July 2010, cover the area of the proposed tenement by approximately 0.455 square kilometres.
On 11 January 2011 the legal representative of the first native title party lodged with the Tribunal an expedited procedure objection application pursuant to s. 32(3).
On 3 February 2011, I was appointed as the Member to conduct the expedited procedure objection inquiry.
A number of status conferences were convened to deal with the expedited procedure objection application during the course of 2011. The Tribunal was informed that the grantee party and the native title parties 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 first native title party were impeding efforts to formally execute an agreement.
During this time, the second native title party had concluded their negotiations and signed a Deed of Agreement with the grantee party, a copy of which has been provided to the Tribunal.
By letter dated 15 February 2012, the government party advised that it had withdrawn the assertion of the expedited procedure in relation to the proposed tenement. Accordingly the Tribunal no longer had jurisdiction to proceed and the expedited procedure objection application was dismissed on 16 February 2012 – William Doyle & Ors (Kalkadoon People #4)/Queensland/ Mt Dockerell Mining Pty Ltd & Syndicated Metals Limited, [2012] NNTTA 15 (16 February 2012) Deputy President Sosso.
On 15 February 2012 the government party lodged with the Tribunal a Future Act Determination Application (“FADA”) pursuant to ss. 35 and 75 of the Act. The FADA was made more than six months after the notification days thereby satisfying the requirement of s. 35(1)(a). Paragraph 10 of the FADA contained the following information:
“The negotiation parties have reached agreement in relation to the future act, however the agreement between the grantee parties, Mt Dockerell Mining Pty Ltd and Syndicated Metals Limited, and the Kalkadoon People #4 has not been finalised due to the failure of one of the registered native title claimants, namely Mr Sonny Condren, to sign the agreement. The Kalkadoon People’s representatives have advised that Mr Condren’s reasons for failing to sign are unrelated to the terms of the agreement. The State is advised that the grantee parties and the Yulluna People have finalised an agreement in relation to the future act. The State is not a party to the agreements and does not hold copies of the agreements, however it is our understanding that these will be provided to the Tribunal by the other parties.”
On 16 February 2012 I was appointed the Member to conduct the Future Act Determination Application inquiry, and on that date I accepted the FADA pursuant to s. 77.
A preliminary conference was convened on 20 February 2012 and Directions were made requiring the government party and first native title party to each provide a statement of contentions on or before 27 February 2012. By the same date the second native title party was required to provide a letter outlining its position on the Tribunal making a consent determination. Finally, the grantee party was at liberty to reply to any material submitted by the government party and the first and second native title parties.
The statement of contentions of the first native title party were contained in a letter dated 24 February 2012 from Ms. Linda Hansen of Chalk & Fitzgerald Lawyers. Ms. Hansen stated that the first native title party had no objection to the content of the government party’s FADA. Further, Ms. Hansen annexed to her correspondence contentions lodged by the first native title party in previous proceedings which are relied upon for the present inquiry. So far as is relevant, those contentions contain the following information:
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 the Agreements. There is at present an argument between Mr Condren and the 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 area since early 2011.
...
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 ... .
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.
12 The Agreements have been provided to the Tribunal and the relevant Grantee Party by the registered claimants.
13. If the Tribunal were to allow the grant of the EPM subject to compliance with the terms of the relevant Agreement reached between the Native Title (sic) and Grantee Parties, as filed with the National Native Title Tribunal, the effect of the grant on the native title rights and interests claimed (and other interests listed under s39(1)(a)) would be appropriately governed, and indeed minimised, by the terms and conditions of the Agreement.
14. The Native Title submits that the Tribunal should, with the consent of the Parties allow the grant of the EPM subject to compliance with the terms of the relevant Agreements reached between Native Title and Grantee Parties and filed with the National Native Title Tribunal.
On 17 February 2012 Ms Hansen provided the Tribunal a copy of a draft Deed of Variation for various tenements, including EPM 13870 and a copy of a document entitled “Negotiated Agreement Between Kalkadoon Native Title Claim Group and Syndicated Metals Limited (ABN 61 115 768 986”. In this instance the difficulty faced by the first native title party was refusal by Mr. Condren to execute the Deed of Variation to the substantive ancillary agreement previously mentioned.
On 21 February 2012, Ms Clare Farley of P & E Law, the legal representative of the second native title party, wrote to the Tribunal as follows:
“We write in compliance with Directions made in the above matter on 20 February 2012, specifically paragraph 2 of those directions.
We are instructed that the Yulluna People #3 (QUD189/10) consent to the making of a Future Act Determination subject to conditions pursuant to section 38(1)(c) of the Native Title Act 1993.
The consent given by the Yulluna People #3 is conditional upon any determination including a requirement that the Grantee Party and the Yulluna People #3 comply with the terms of the Deed of Agreement made between them on 4 November 2011.”
The Tribunal was provided with a copy of a Deed of Agreement between the grantee party and the second native title party in relation to the proposed tenement. The copy before the Tribunal has been fully executed by the grantee party and all of the persons comprising the Applicant of the second native title party other than Hazel Sullivan.
On 27 February 2012 the government party lodged with the Tribunal its Statement of Contentions. So far as is relevant, the Contentions set out the following information:
“2. The history of the tenement is as follows:
a.Asarco Exploration Company Inc lodged an application for EPM 13870 on 17 September 2002.
b.The Alternative State Provisions of the Mineral Resources Act 1989 (Qld) applied to the application.
c.The Kalkadoon People and Asarco Exploration Company Inc entered into an agreement in 2004 in relation to this exploration permit.
d.EPM 13870 was granted on 1 April 2005 as a high impact exploration permit.
e.Asarco Exploration Company Inc applied to assign its interest in the exploration permit to Syndicated Metals Pty Ltd, which was approved on 4 September 2006.
f.The State was notified on 7 December 2006 that Syndicated Metals Pty Ltd and Mt Dockerell Mining Pty Ltd had entered into a joint venture agreement which applied to this exploration permit on 12 July 2006.
g.The State was notified on 15 February 2008 that Syndicated Metals Pty Ltd had changed its name to Syndicated Metals Ltd.
h.On 6 March 2009, an assignment took place as a result of which the holders of the tenement were recorded as Mt Dockerell Mining Pty Ltd (51%) and Syndicated Metals Ltd (49%).
i.The holders applied for a renewal of the exploration permit on 21 December 2009.
j.A section 29 notice was issued on 29 September 2010. The State proposed to renew the exploration permit under the expedited procedure as an exploration permit with new conditions imposed.
k.The Yulluna People entered into an agreement with Mt Dockerell Mining Pty Ltd and Syndicated Metals Ltd in relation to the renewal of EPM 13870.
l.The Kalkadoon People #4 reached agreement with Syndicated Metals Ltd in relation to the renewal of EPM 13870, although this was unable to be fully signed by the parties. This was a deed of variation, varying the original agreement entered into by the parties for this and other exploration permits.
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4.   The State accepts the submission of Ms Linda Hansen on behalf of the Kalkadoon People #4 that agreement has been reached with the Grantee Parties in relation to the future act, but that this agreements have not been finalised as one of the registered native title claimants on behalf of the Kalkadoon People #4 has not signed the agreement for reasons that are unrelated to the terms of the agreement.
5.   On 23 January 2012, the State received confirmation in writing from Ms Clare Farley on behalf of the Yulluna People that an agreement had been reached between the Grantee Parties and the Yulluna People. Ms Farley advised the Tribunal in writing on 21 February 2012 that the Yulluna People agreed to the Tribunal making a consent determination in this matter.
6.   Mr Brian Martin, representing the Grantee Parties, advised the other parties and the Tribunal in writing on 20 February 2012 that the Grantee Parties agreed to the Tribunal making a consent determination in this manner.
7.   Mr Martin provided copies of the agreements between the Native Title Parties and the Grantee Parties in relation to this matter to the Tribunal and the other parties on 20 February 2012.
8. 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:
(a) compliance by Mt Dockerell Mining Pty Ltd, Syndicated Metals Ltd and Kalkadoon People #4 with the terms and conditions of the Deed of Variation between Syndicated Metals and Kalkadoon People #4 as filed with the Tribunal; and
(b)compliance by Mt Dockerell Mining Pty Ltd, Syndicated Metals Ltd and Yulluna People with the terms and conditions of the Deed of Agreement between Mt Dockerell Mining Pty Ltd, Syndicated Metals Ltd and Yulluna People as filed with the Tribunal.”
When a negotiation 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: 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 stated on a number of occasions that it will, having regard to the above principles, seek to facilitate the effectuation of “in principle” agreements reached by the negotiation parties. However, the Tribunal has no legislative basis to make a “consent” determination when the Applicant is in gridlock because of internal disputes. There can be no basis for making a “consent” determination if a claim group, and the Applicant of that claim group, is internally divided. In such circumstances there cannot be said to be an “in principle” agreement, because the condition precedent for the formation of such an agreement is lacking – see Foster v Copper Strike Ltd (2006) 200 FLR 182 at [36]/192.
In this matter however, it is clear that there is agreement in principle between the first and second native title parties and the grantee party. Indeed, the second native title party has already reached an accord with the grantee party. However, to ensure that no doubt exists about the efficacy of that agreement, the Tribunal will make a determination in accordance with the submissions of the second native title party and the government party.
So far as the first native title party, the failure of Mr Condren to execute the Deed of Variation is not related to the terms of either that Deed or the substantive ancillary agreement. The following key matters are apparent from the material before the Tribunal:

(a)the Deed of Variation and substantive ancillary agreement between the first native title party and the grantee party have been provided to the Tribunal;
(b)I have perused the agreements and it would appear to provide benefits to the first native title party exceed those that would apply if no agreement was reached and the standard government conditions applied;
(c)the failure of one of the persons comprising the Applicant of the first native title party to execute the Deed of Variation is ostensibly unrelated to the terms of that Deed;
(d)the first native title party is legally represented, and has had the benefit of professional legal advice throughout this process;
(e)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 act, namely the grant of Exploration Permit EP 13870 to Mt Dockerell Mining Pty Ltd and Syndicated Metals Limited, may be done subject to:

(a)Compliance by Mt Dockerell Mining Pty Ltd and Syndicated Metals Limited and Kalkadoon People #4 with the terms and conditions of the Deed of Variation between Syndicated Metals Limited and Kalkadoon People #4 as filed with the Tribunal; and
(b)Compliance by Mt Dockerell Mining Pty Ltd, Syndicated Metals Limited and the Yulluna People with the terms and conditions of the Deed of Agreement between Mt Dockerell Mining Pty Ltd, Syndicated Metals Limited and Yulluna People as filed with Tribunal.

John Sosso

Deputy President