Richard Doyle & Ors (Iman People #2)/Mining Investments One Pty Ltd; Aard Metals Limited/Queensland - [2012] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Richard Doyle & Ors (Iman People #2)/Mining Investments One Pty Ltd; Aard Metals Limited/Queensland [2012] NNTTA 7 (31 January 2012)

Application No: QF11/12 & QF11/13

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

Richard Doyle, Patrick Silvester, Cynthia Kemp, Eve Fesl, Kenny Waterton, Eddie Waddy, Graham Anderson, Arwa Waterton, Bradley Curtis, Dena Marie Dodd-Ugle, Heidi Anne-Marie Lawson on behalf of Iman People #2
(native title party)

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Mining Investments One Pty Ltd (first grantee party)

Aard Metals Limited (second grantee party)

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State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 31 January 2012

Representatives:
Native Title Party: Mr Michael Owens, Lawyer & Consultant
Grantee Parties: Mr Alan Thompson, Mining Tenement Services
Mr Glenn Wright, Tenement Administration Services

Government Party: Ms Sara Newrick, Department of Employment, Economic Development and Innovation
Catchwords: Native title – future act – inability to finalise agreements -consent determination that the acts may be done.
Legislation:Native Title Act 1993 (Cth,) ss. 29, 31, 32, 35, 38, 39, 62A, 75, 77

Cases: 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
Russell Tatow & Ors (Iman People #2)/Queensland/ Mining Investments One Pty Ltd; Aard Metals Limited, [2011] NNTTA 211.

REASONS FOR FUTURE ACT DETERMINATION

On 6 July 2010 and 17 February 2011, the State of Queensland (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permit for Coal (EPC) 1987 and Exploration Permit for Mineral (EPM) 18703 (“the proposed tenements”) respectively to Mining Investments One Pty Ltd (“first grantee party”) and Aard Metals Limited (“second grantee party”), pursuant to the Mineral Resources Act 1989 (Qld).
The notice for the first grantee party stated that the Exploration Permit would authorise Mining Investments One Pty Ltd to explore for minerals for a term not exceeding five (5) years with a right to seek a renewal for a further five (5) years. The notice also stated that it was proposed to grant the Exploration Permit subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 4, 26 May 2010 and the Native Title Protection Conditions 1.1(a), 22 August 2003. The government party further asserted that the grant of the proposed tenement attracted the expedited procedure – s. 29.
The notice for the second grantee party stated that the Exploration Permit would authorise Aard Metals Limited to explore for minerals for a term not exceeding five (5) years with a right to seek a renewal for a further five (5) years. The notice also stated that it was proposed to grant the Exploration Permit subject to the Mineral Resources Act 1989 (Qld), the General Conditions Version 5, 10 December 2010 and the Native Title Protection Conditions Version 2, 10 December 2010. The government party further asserted that the grant of the proposed tenement attracted the expedited procedure – s. 29.
Details of the proposed tenements are as follows:
(a) EPC 1987 covers an area of approximately 354.13601 square kilometres and is described as being approximately 448 kilometres north north-east from Miles, situated within the local government area of the Western Downs Regional Council; and
(b) EPM 18703 covers an area of approximately 253.29716 square kilometres and is described as being approximately 50 kilometres north-east of Wandoan, situated within the local government area of the Western Downs Regional Council.
The boundaries of the Iman People #2 registered native title determination application (QUD6162/98) cover the area of the proposed tenements to the following extent:
(a) EPC 1987 354.13555 square kilometres; and
(b) EPM 18703 253.29651 square kilometres
The Iman People #2 native title determination application was entered on the Register of Native Title Claims on 26 July 2002.
On 1 December 2010 and 21 June 2011 the native title party lodged with the Tribunal expedited procedure objection applications pursuant to s. 32(3).
On 3 December 2010 and 27 June 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.
By letter dated 15 December 2011, the government party advised that it had withdrawn the assertion of the expedited procedure in relation to each of the proposed tenements. Accordingly the Tribunal no longer had jurisdiction to proceed and the expedited procedure objection applications were dismissed on 16 December 2011 – Russell Tatow & Ors (Iman People #2)/Queensland/ Mining Investments One Pty Ltd; Ard Metals Limited, [2011] NNTTA 211.
On 21 December 2011 Mr Michael Owens, Lawyer and Consultant, lodged with the Tribunal, Future Act Determination Applications on behalf of the native title party pursuant to ss. 35 and 75 of the Act. The applications were made more than six months after the notification days thereby satisfying the requirement of s. 35(1)(a).
On 21 December 2011 I was appointed the Member to conduct the Future Act Determination Application inquiry, and on 22 December 2011 I accepted the applications pursuant to s. 77.
The following information was set out in the affidavit of Michael John Owens, sworn on 10 December 2011, and attached to the future act determination application.
“4.   Agreement has been reached as between the Grantee Party and the Native Title Party as to the grant of the Tenement.
5.   Save and except Ms Dena Dodd-Ugle, all of the other persons comprising the registered native title claimant for the native Title Party have signed the Ancillary and s 31 Agreement.
6.   The Grantee Party has signed the Ancillary and s 31 Agreement.
7.   Annexed hereto and marked with the letters “MJO 1” is a true and correct copy of Ancillary Agreement and s 31 Agreement executed by the Native Title Party.
8.   The Government Party has been requested to agree to waive its assertion that the Expedited Procedures as contained in the NTA apply to the grant of the Tenement in order to allow this Future Act Determination Application (“FADA”) to proceed.
9.   This FADA is made by the Native Title Party in order to allow grant of the Tenement.
Reasons for failure to sign
10. On 19 July 2011, Collier J handed down a decision to appoint a new Applicant for the Native Title Party following an application being made to the Federal Court under s66B NTA.
11. Following that decision, Ms Dena Dodd-Ugle is now one of the persons comprising the Applicant/RNTC for the Native Title Party.
12 Since being appointed as the new RNTC for the Native Title Party on 19 July 2011, Ms Dena Dodd-Ugle has executed a number of near identical Exploration related Ancillary and s 31 Agreements to the attached in MJO 1.
13. Consequently, Ms Dena Dodd-Ugle fully understands the nature and effect of all documentation referred to her for execution in this matter.
14. Ms Dena Dodd-Ugle has not at any time whatsoever expressed to me (or anyone else that I am aware of) that her reasons for refusing to sign the Ancillary and s 31 Agreements were related to the content of the Agreements themselves.
15. Instead, I am aware that Ms Dena Dodd-Ugle has become disenchanted with certain other internal issues within the Native Title Party. Those issues have nothing whatsoever to do with this matter or with exploration activities more generally.
... ...
24. The agreements concerning exploration in MJO1 are far superior to the NTPC’s in almost every sense.
25. As a result, I have absolutely no hesitation in stating that this agreement is in the best overall interest of the Native Title Party.
Future Act Determination Application
26. I do not believe that the refusal of Ms Dena Dodd-Ugle to sign the Ancillary and s 31 Agreements is in any whatsoever related to an objection to either terms of the agreement or to the grant of the tenement itself.
27. Rather, I believe that her refusal is of a personal nature and is entirely unrelated to this matter.
28. The Native Title Party should not be deprived of the benefits as contained in the Ancillary Agreement because of the actions of one person.”
On 13 January 2012, Mr Alan Thompson of Mining Tenement Services, authorised agents for the first grantee party, emailed the Tribunal as follows:
“In regard to QO10/198, the matter of EPC 1987, between the Iman People #2 and Mining Investments One, the grantee party consents to the Tribunal making a determination, pursuant to the Future Acts, of the application as made by the Native Title party, and making orders consistent with that application.”
Mr. Glen Wright of TAS Legal, on behalf of the second grantee party, wrote to the Tribunal on 3 January 2012 as follows:
“We again refer to the orders of the Tribunal on 12^th of December 2011 and to your recent conversation with our Mr Wright and enclose for the Tribunal’s attention, copy of the Exploration Agreement executed on behalf of Aard Metals for EPM 18703 as well as an executed section 31 Deed for the same matter ....
We confirm that Aard Metals consents to the orders sought in the Future Act Determination Application (FADA) filed herein.”
The Statement of Contentions of the government party dated 20 January 2012, provides as follows:
“4.   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.
5.    We understand that Mr Alan Thompson and Mr Glenn Wright, representing the Grantee Parties, has advised the Tribunal in writing on 18 January 2012 and 13 December 2011[sic] respectively that the Grantee Parties agreed to the Tribunal making a consent determination in these matters.
6.    The State submits that the Tribunal ought to make a consent determination pursuant to section 38(1)9c) 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.”
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 all of the parties, and in particular, between the native title party and the grantee parties. The failure of Ms Dodd-Ugle to execute the agreements is not related to the terms of the agreements. The following key matters are apparent from the material before the Tribunal:

(a)the draft ancillary agreements between the native title party and the grantee parties have been provided to the Tribunal;
(b)I have perused the agreements and it would appear to provide benefits to the native title party that 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 native title party to execute the ancillary agreements is ostensibly unrelated to the terms of those agreements;
(d)the 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 acts, namely the grant of Exploration Permit for Coal (EPC) 1987 to Mining Investments One Pty Ltd and Exploration Permit for Mineral (EPM) 18703 to Aard Metals Limited, 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 National Native Title Tribunal.

John Sosso

Deputy President