Russell Tatow & Ors (Iman People #2)/Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd, Sumisho Coal Australia Pty Ltd/Queensland
[2010] NNTTA 54
•19 April 2010
NATIONAL NATIVE TITLE TRIBUNAL
Russell Tatow & Ors (Iman People #2)/Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd, Sumisho Coal Australia Pty Ltd/Queensland, [2010] NNTTA 54 (19 April 2010)
Applications No: QF10/3, QF10/4
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle, Madonna Barnes on behalf of the Iman People #2
(native title party)
- and -
Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Ltd
(grantee party)
- and -
State of Queensland (government party)
FUTURE ACT DETERMINATION
Tribunal: John Sosso
Place: Brisbane
Date: 19 April 2010
Hearing date: 1 April 2010
Native Title Party: Mr Michael Owens, Solicitor, Michael Owens & Associates
Grantee Party: Ms Rochelle Carey, Solicitor, Allens Arthur Robinson
Government Party: Ms Jacinta Dwyer, State of Queensland
Catchwords: Native title – future act – application for determination for the grant of mining leases – consent determination that the acts may be done.
Legislation: Mineral Resources Act 1989 (Qld)
Native Title Act1993 (Cth), ss 29, 30A, 31, 32, 35, 38, 39, 75, 77
Cases:Butchulla People v Queensland (2006) 154 FCR 233
Doolan v Native Title Registrar (2007) 158 FCR 56
Foster v Copper Strike Ltd (2006) 200 FLR 182
Leedham Papertalk & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd, WF09/24 [2009] NNTTA 159 (30 November 2009) Deputy President Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Sambo v Western Australia [2008] FCA 1575
Xstrata Coal Queensland Pty Ltd & Ors v Tatow & Ors [2008] QLC 226
REASONS FOR DECISION ON FUTURE ACT DETERMINATION APPLICATION
The State of Queensland(“government party”) gave notice under s.29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant Mining Leases ML 50229 and ML 50231 (“the proposed tenements”) to Xstrata Coal Queensland Pty Ltd (75%), ICRA Wandoan Pty Ltd (12.5%) and Sumisho Coal Australia Pty Limited (12.5%) in partnership (“grantee party”) pursuant to the Mineral Resources Act 1989 (Qld), and nominated 25 March 2009 as the notification day.
The notice stated that the Mining Leases would authorise the grantee party to mine, and carry out associated activities subject to the Mineral Resources Act 1989 (Qld) for a term not exceeding 35 years with the possibility of renewal for a term not exceeding 35 years.
The proposed tenements are located between 11-22 kilometres west of Wandoan within the Dalby Regional Council local government area and cover areas of approximately 17,211 hectares and 3,795 hectares respectively. The proposed tenements are situated wholly within the boundaries of the Iman People #2 registered native title determination application (QUD6162/98).
The Iman People #2 native title determination application was entered on the Register of Native Title Claims on 26 July 2002. The persons who collectively comprise the applicant are Mr Russell Tatow, Mr. Patrick Silvester, Ms Cynthia Kemp, Ms Eve Fesl, Mr Troy Noble, Mr Fred Tull, Mr Fergus Waterton, Mr Richard Doyle and Ms Madonna Barnes.
On 22 March 2010 Mr Michael Owens on behalf of the native title party lodged via email, a future act determination application pursuant to ss.35 and 75. The application was made more than six months after the notification day (25 March 2009) – s.35(1)(a). On 30 March 2010 I was appointed as the Member to conduct the future act determination inquiry and on 31 March 2010 I accepted the future act determination application pursuant to s.77.
In the future act determination application, the native title party explained that while agreement in principle had been reached with the grantee party for the proposed tenements, the Ancillary Agreement and s.31 Agreement had not been executed by all of the persons who collectively comprise the Applicant of the Iman People #2 native title determination application.
Mr Michael Owens, the legal representative for the native title party, lodged with the Tribunal an affidavit sworn on 18 March 2010. So far as is relevant, Mr Owens deposed as follows:
“Execution of Ancillary and s 31 Agreement by all persons comprising the Iman People #2 Applicant
... ...
12. On 7 December all of the persons comprising the Iman People #2 Applicant (save and except Dr Eve Fesl) met in Brisbane and all such persons other than Madonna Barnes signed the Ancillary and s 31 Agreement (the ‘documentation’)
13. Dr Fesl subsequently signed the documentation on 4 February 2010.
14. Although Madonna Barnes refused to sign the documentation on 7 December 2009, she did state that she would sign the documentation however she was awaiting a direction from her family to do so.
Steps taken to have Madonna Barnes to sign Ancillary and s 31 Agreement
15. On 16 December 2009 I emailed Madonna Barnes and asked that she advise as a matter of urgency when she was likely to sign the documentation.
16. On 16 December 2009, in reply to my email Madonna Barnes stated that she would sign the documentation and that she would be in Brisbane on 17, 18 and 19 December 2009.
17. As a direct result arrangements were made for Madonna Barnes to attend at the offices of Allens Arthur Robinson to sign the documentation at a time convenient to her on either of 17, 18 and 19 December 2009.
18. Madonna Barnes did not attend at the offices of Allens Arthur Robinson as arranged despite several attempts by Ben Zillmann to contact her and arrange a mutually convenient time to sign the documentation.
19. On 5 February 2010 Madonna Barnes emailed Ben Zillmann asking to be forwarded a copy of the documentation and stating that she would be in Brisbane in the following week.
20. On 8 February 2010, Ben Zillmann emailed electronic versions of the documentation to Madonna Barnes.
21. On 12 February 2010 Ben Zillmann again emailed Madonna Barnes asking her to advise as a matter of urgency whether she would sign the documentation.
22. On 12 February 2010 I also emailed Madonna Barnes to advise her that any application brought by Xstrata for a consent determination would be entirely successful….
24. On 19 February 2010, Rochelle Carey a Senior Associate of Allens Arthur Robinson, solicitors for the Grantee, also emailed Madonna Barnes asking her to advise as a matter of urgency, whether she would sign the agreement. To the best of my knowledge and belief Madonna Barnes has not replied to that email….
26. In addition to the meeting of 7 December 2009, I have been present on three other occasions when some of the persons comprising the Applicant and myself have requested Madonna Barnes to sign the documentation. Those occasions are:
(a) 8th and 9th February 2010 in Rockhampton; and
(b) 11 March 2010 in Rockhampton.
27. On each occasion Madonna Barnes has refused to sign the documentation and has declined to provide a reason for doing so.
28. Despite all of the steps as described in paragraphs 15 to 27 of this Affidavit, Madonna Barnes has not to the best of my knowledge and belief (as at the date of this Affidavit) signed the documentation and has not at any time whatsoever expressed a reason to me for failing to do so.
Reasons for failure to sign
29. As stated in the previous paragraph of this Affidavit Madonna Barnes has not at any time whatsoever expressed any reasons to me why she has refused to sign the documentation.
30. At the meeting of the persons comprising the Applicant held in Brisbane on 7 December 2009, all of the other persons comprising the Iman People #2 Applicant (excluding Madonna Barnes) made it clear that whilst they were not entirely happy with the content of the compensation package as offered by the Grantee Party, they were nonetheless happy that the mediation had achieved a significant increase in the previous offer by the Grantee and they were prepared to accept the mediated outcome as it was the best that they could achieve on behalf of the Iman People #2 claimant group in all the circumstances.
31. Madonna Barnes was at that meeting and expressed similar views to the other persons comprising the Applicants who were present at the meeting. Notwithstanding that, Madonna Barnes stated (for the same reasons as stated in paragraph 30) that she would sign the documentation. On that occasion Madonna Barnes did not raise any questions, queries or objections about any other aspect of the compensation package or the terms of the agreement.
32. Since the meeting of the persons comprising the Applicant on 7 December 2009, Madonna Barnes has not (to the best of my knowledge and belief) at any time whatsoever raised any questions, queries or objections about any aspect of the compensation package or the terms of the agreement with me or anyone else.
33. I have not been informed by any other person that they are aware of any reason why Madonna Barnes has refused to sign the documentation.
Other Examples of Madonna Barnes refusal to sign agreements
34. I am aware that Madonna Barnes has in the past refused to sign other agreements as required of her whilst she was one of the persons comprising the Applicant. One such example can be found in Xstrata Coal Queensland & Ors v Russell Tatow & Ors [2008] QLC 0226.
35. I am also aware that Madonna Barnes is presently refusing to sign an ILUA that was properly authorised by the Iman People #2 (together with all other people whom claimed to hold an interest in the area affected by the proposed ILUA) and in respect of which she was specifically directed to sign the ILUA by the claimant group. All of the other persons comprising the Applicant have signed the ILUA.
36. I am currently in receipt of instructions to assist the other persons comprising the Applicants (in accordance with a further direction of the claimant group) to call an authorisation meeting of the Iman People #2 for the purpose of considering what (if any) action they intend to take to deal with Madonna Barnes refusal to sign the ILUA including the authorisation of a new Applicant to make application to the Federal Court pursuant to s 66B NTA to remove the present Applicant.
37. That meeting will occur in the next 4 to 6 weeks….
Future Act Determination Application
42. I do not believe that the refusal of Madonna Barnes to sign documentation is in any way whatsoever related to an objection to either the terms of the agreement or the grant of the tenement.
43. Rather, I believe that her refusal is of a personal nature and is entirely unrelated to this RTN Agreement.
44. The Iman People #2 should not be deprived of the benefits as contained in the Ancillary Agreement because of the actions of one person whom has consistently refused to provide reasons for her inaction.”
It would appear from Mr. Owens affidavit that the failure of Ms Barnes to execute the relevant documentation was in no way connected to concerns about the terms of the agreement or the doing of the proposed future acts.
Mr Owens annexed to his affidavit various email messages forwarded by both himself and Mr. Zillmann to Ms. Barnes as well as her replies. A perusal of those emails does not disclose that Ms. Barnes was opposed to executing the ancillary agreement. For example, Mr. Owens emailed Ms. Barnes on 16 December 2009 about her preparedness to execute the agreement. Her reply on the same day was as follows: “I will sign the xstrata agreement. Will be in Bris on 17, 18 and 19 dec.” In his reply to that message later that day, Mr. Owens asked Ms. Barnes if she could go to the offices of Allens Arthur Robinson at 123 Eagle Street, Brisbane to execute the relevant documents. Ms. Barnes replied at 6.47 pm on 16 December 2009 as follows: “Riverside centre at 123 Eagle Street, will be o.k.” Ms. Barnes did not attend at the offices of Allens Arthur Robinson, but on 5 February 2010 emailed Mr. Zillmann as follows: “Can you please forward me the Xstrata Agreements as I have not seen it yet? Also I will be in Bris next week. Sorry I missed you the last time in Bris. Your assistance on this important matter would be greatly appreciated.” Mr. Zillmann forwarded to Ms. Barnes the relevant documentation on 8 February 2010, but Ms. Barnes did not execute the material.
In addition, Mr. Owens also deposed (at para 40) that the Applicant has been engaged in negotiations with various gas, pipeline, mining and infrastructure proponents over a number of years and has signed several agreements with such proponents. In short the persons collectively comprising the Applicant are experienced in negotiating commercial arrangements with project proponents. Further, they have had, at all relevant times, the independent assistance and advice of Mr. Owens.
Mr. Owens referred in his affidavit to the recent Land Court decision of Xstrata Coal Queensland Pty Ltd & Ors v Tatow & Ors [2008] QLC 226. This case concerned an application pursuant to s.113 of the Aboriginal Cultural Heritage Act 2003 (Qld) seeking a recommendation from the Land Court that a draft Cultural Heritage Management Plan for the proposed Wandoan Coal Mine be approved. This was another case involving the Iman People #2 where Ms. Madonna Barnes refused to execute an agreement that had been agreed to by all the other persons collectively comprising the Applicant. Member Smith of the Land Court made the following observations (at [2] and [5]):
“[2]… the bulk of the indigenous persons impacted by the CHMP have reached agreement with the draft CHMP. Indeed when this matter was before me on 23 October 2008 the indication was given to the court that formal agreement had been reached between the parties and it was simply a matter of having that agreement executed after which time a notice of discontinuance would be filed. Unfortunately what has happened is that one of the indigenous persons now refuses to sign the CHMP. Ms English for the respondent has informed the court today that she has instructions from eight of the nine indigenous person to agree to the orders sought by the applicant which are in effect that the Land Court should recommend to the Honourable the Minister that the draft CHMP be approved.
[5] The applicant has negotiated a CHMP agreement which has been agreed to by eight of the nine applicants who comprise the respondents. Seven of those nine people have executed the CHMP agreement. Mr. Troy Noble has not yet executed the CHMP agreement, but he is agreeable to its terms and will execute the CHMP agreement shortly. The remaining person who comprises the respondent, Ms Madonna Barnes, has refused to execute the CHMP agreement.”
On 1 April 2010 I convened directions hearing in Brisbane, to enable each of the parties to address the Tribunal on the request of Mr. Owens for a consent determination. Mr. Owens confirmed the material outlined in his affidavit and formally requested that the Tribunal make a consent determination. Ms Rochelle Carey, on behalf of the grantee party, also supported this course of action. Finally, Ms. Jacinta Dwyer, on behalf of the government party, confirmed that the State was satisfied with the documentation submitted by Mr. Owens and was also supportive of a consent determination being made. Both the grantee and government parties agreed to formally correspond with the Tribunal to indicate their support for the Tribunal making a consent determination.
On 8 April 2010 Mr Ben Zillmann and Ms Rochelle Carey corresponded the Tribunal in the following terms:
“... we confirm that the Grantee Party agrees to a consent determination in the matters of QF10/3 and QF10/4 in relation to the grant of mining lease 50229 and mining lease 50231as outlined by Michael Owens in the Form 5 lodged with the Tribunal on 22 March 2010.”
On the same day Ms. Sara Newrick, on behalf of the government party, made formal submissions in support of the Tribunal making a consent determination. So far as is relevant the government party submitted as follows:
“The State supports the Tribunal making a consent determination in the form requested by the Native Title Party, that the future acts may be done subject to compliance with the conditions of the Mining Lease Consent Agreement between the parties, as provided by Mr Michael Owens on behalf of the Iman People #2 with the Future Act Determination Application lodged with the Tribunal on 22 March 2010.”
The legal basis for the Tribunal making a consent determination is comprehensively set out in Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361 at 368 – 371 and Foster v Copper Strike Ltd (2006) 200 FLR 182 at 189 – 193. I adopt the principles outlined in those determinations for the purposes of this matter.
From the uncontested material before the Tribunal the following propositions can be made:
(a)at all times the native title party was legally represented by Mr. Michael Owens, a lawyer with extensive experience in representing native title parties in future act negotiations;
(b)all of the persons, other than Ms. Madonna Barnes, collectively comprising the Applicant have executed the Ancillary Agreement;
(c)the refusal of Ms. Barnes to execute the agreement is unknown but there is no evidence before the Tribunal that this refusal is related to the terms of the document or any stated concerns about the doing of the future acts;
(d)there is material before the Tribunal indicating that Ms. Barnes has refused to execute other agreements which have otherwise been adopted by all other persons collectively comprising the Applicant, and again, the refusal to do so does not appear to be related to the terms of those agreements;
(e)the Tribunal has been provided with copies of the “in principle” agreement;
(f)the Tribunal has perused the “in principle” agreement and there are, prima facie, no provisions the terms of which would militate against the Tribunal making a consent determination;
(g)the “in principle” agreement is of a type that can be properly made the subject of conditional determinations pursuant to s.38(1)(c); and
(h)the Tribunal has also before it material lodged by both the government and grantee parties which unequivocally demonstrate their support for the making of a consent determination.
[16] There is no evidence before the Tribunal that the Iman People #2 claim group are not supportive of the execution of the agreement. All the material indicates that they are very keen to advance their broader interests and aspirations by negotiating agreements with grantee parties. Indeed, as the material in Xstrata Coal Queensland Pty Ltd & Ors v Tatow & Ors [2008] QLC 226 illustrates there is a desire by the claim group to reach agreement on the broader Wandoan Coal Mine proposal, accepting, of course, that in the nature of commercial negotiations, parties will not necessarily achieve all that they would wish.
It would also appear that the Iman People #2 claim group have had some extensive experience in negotiating with various infrastructure and mining proponents. Taken together with the ongoing legal assistance provided by Mr. Owens, it is reasonable to infer that the native title party is not at a disadvantage with entering into commercial negotiations and is in a position to objectively assess the benefits and disadvantages of proposed commercial arrangements.
[18] The Tribunal has traditionally taken a liberal approach to the making of consent determinations. One recent example of such an approach is Leedham Papertalk & Ors on behalf of the Mullewa Wadjari Community/Western Australia/Aurox Resources Ltd, [2009] NNTTA 159 (30 November 2009) (“Leedham Papertalk”). It is also the case that in a number of decisions, the Federal Court has looked beyond the persons comprising the Applicant to ascertain what are the wishes and aspirations of the claim group, and has held that unanimity is not necessarily a pre-requisite for action by the Applicant: see Butchulla People v Queensland (2006) 154 FCR 233 and Doolan v Native Title Registrar (2007) 158 FCR 56. Whether that principle of law should be followed subsequent to the 2007 amendments to the Act (see Sambo v Western Australia [2008] FCA 1575), is not necessary to consider for present purposes. What is clear is that it is appropriate, in particular circumstances, for the Tribunal to look beyond the persons comprising the Applicant to ascertain what are the wishes of the broader claim group when determining whether the make a consent determination.
[19] To sum up, all of the material filed with the Tribunal indicates that the refusal or failure of Ms. Madonna Barnes to execute the agreement reached between the native title party and the grantee party is not based on the terms of the agreement. Indeed, it is not clear from the material why Ms. Barnes has not executed the agreement. It would appear that she intended to execute it but did not carry through with her stated intentions. Further, the material before me also indicates that the native title party is keen to proceed with the agreement, and that they have entered into negotiations with both experience and independent and sound legal advice. In all of these circumstances, it would appear appropriate and desirable that the Tribunal assist the negotiation parties by making a consent determination in the manner sought.
Determination
By consent, the determination of the Tribunal is that the acts, namely the grant of Mining Leases 50229 and 50231 to Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Limited may be done subject to compliance with the terms of the Mining Lease Consent Agreement between Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Limited and Mr Russell Tatow, Mr. Patrick Silvester, Ms Cynthia Kemp, Ms Eve Fesl, Mr Troy Noble, Mr Fred Tull, Mr Fergus Waterton, Mr Richard Doyle and Madonna Barnes on behalf of the Iman People #2 (QUD 6162/98) as filed with the National Native Title Tribunal.
John Sosso
Deputy President
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