Selwyn James Appo & Ors (Port Curtis Coral Coast); Alan Douglas Hatfield & Ors (Darumbal People) /Pacific Fertilisers and Chemicals Pty Ltd/Queensland - [2011] NNTTA 190

NATIONAL NATIVE TITLE TRIBUNAL

Selwyn James Appo & Ors (Port Curtis Coral Coast); Alan Douglas Hatfield & Ors (Darumbal People) /Pacific Fertilisers and Chemicals Pty Ltd/Queensland [2011] NNTTA 190 (27 October 2011)

Application No: QF11/4

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

- and -

IN THE MATTER of an inquiry into Future Act Determination Application

Selwyn James Appo and Ors on behalf of Port Curtis Coral Coast
(first native title party)

- and –

Alan Douglas Hatfield and Ors on behalf of the Darumbal People
(second native title party)

- and -

Pacific Fertilisers and Chemicals Pty Ltd (grantee parties)

- and -

State of Queensland (government party)

FUTURE ACT DETERMINATION

Tribunal: John Sosso

Place: Brisbane

Date: 27 October 2011

Representatives:
First Native Title Party:     Mr Victor Asoyo, Gadens Lawyers
Second Native Title Party: Mr Daniel Lavery
Grantee Party:                     Mr Peter Streader
Government Party:              Ms Sara Newrick, Department of Employment, Economic Development and Innovation
Catchwords:  Native title – future act – consent determination that the act may be done.

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

Cases: Anderson v Queensland [2011] FCA 1158
Butchulla People v Queensland (2006) 154 FCR 233
Button v Chapman [2003] FCA 861
Chapman v Queensland (2007) 159 FCR 507
Doolan v Native Title Registrar (2007) 158 FCR 56
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
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809
Tigan v Western Australia [2010] FCA 993
Weribone v Queensland [2011] FCA 1169

REASONS FOR FUTURE ACT DETERMINATION

On 8 November 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 Exploration Permit (EPM) 18232, pursuant to the Mineral Resources Act 1989 (Qld) to Pacific Fertilisers and Chemicals Pty Ltd (“the grantee party”).
The notice stated that the Exploration Permit would authorise the grantee party to explore for minerals for a term not exceeding 5 years with a right to seek a renewal for a further 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 2, October 2010. The government party further asserted that the grant of the proposed tenement attracted the expedited procedure – s. 29(7).
The proposed tenement is located approximately 33 kilometres east-south-east from Rockhampton within the Gladstone and Rockhampton Regional Councils and covers an area of approximately 226 square kilometres. The proposed tenement is situated within the boundaries of Port Curtis Coral Coast registered native title determination application (QUD 6026/01) and the Darumbal People registered native title determination application (QUD 6131/98).
The Port Curtis Coral Coast native title determination application was entered on the Register of Native Title Claims on 27 February 2002. The persons who collectively comprise the applicant are Selwyn James Appo, Leigh Anthony Blackman, Lynette Yvonne Booth, Stephen Joseph Collins, Maureen Joyce Eggmolesse, Rayleen Evelyn Goltz, Tony Edward Johnson, Dean Sarra, Neola Marie Savage, Michelle Lydia Smith, Maxine Victoria Ann Thompson, Netta Margaret Tyson, Malcolm Alfred Walker, Michael John Williams (“the first native title party”).
The Darumbal native title determination was entered on the Register of Native Title Claims on 27 June 1997. The persons who collectively comprise the applicant are Alan Douglas Hatfield, David Raymond James, Robert Michael Muir, Rodney William Mann, Warren John Malone, Vanessa Ross (“the second native title party”).
On 7 February 2011 the first native title party lodged with the Tribunal an expedited procedure objection application pursuant to s. 32(3). The application was received well prior to the four month closing date. The second native title party did not avail itself of this course of action.
On 11 February 2011 I was appointed the Member to conduct the expedited procedure objection inquiry, and on 18 February 2011 I accepted the application pursuant to s. 77.
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 first native title party were engaged in substantive negotiations and were keen to finalise an agreement without this matter proceeding to a formal inquiry. It subsequently became clear that, despite the desire of the parties to reach an accord, difficulties within the first native title party were impeding efforts to formally execute an agreement.
On 29 August 2011 Ms. Sara Newrick, on behalf of the government party, advised the Tribunal of the State’s withdrawal of the assertion 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 notice that the proposal to grant Exploration Permit for Minerals 18232 is a future act attracting the expedited procedure. This withdrawal does not apply to any other acts which may be listed in that notice, 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 on behalf of the Native Title Party, with the co-operation of the Grantee Party.
Gadens Lawyers, on behalf of the Native Title Party, advised the State in writing on 29 August 2011 that an application of this kind will be made.”
On 20 September 2011 Mr. Victor Asoyo of Gaden’s Lawyers, lodged with the Tribunal, pursuant to ss. 35 and 75, a future act determination application on behalf of the first native title party. The application was 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 inquiry on 20 September 2011, and accepted the future act determination application (s. 77) on the same day.
The following information was set out in the future act determination application:
“10. While the Applicant, the Grantee Party and the Government Party have negotiated in good faith and reached agreement in principle about the conditions upon which the Applicant will agree to the grant of EPM 18232, they have not been able to formally execute an agreement of the kind mentioned in section 31(1)(b) of the Native Title Act 1993 (Cth) in relation to the act, for the following reasons:
(a)    The persons who collectively comprise the Applicant make decisions by a majority vote of those persons and Gadens Lawyers are instructed on that basis.
(b)    On 24 April 2011, Gadens Lawyers provided a draft of the Ancillary Agreement to the Grantee Party and on 23 May 2011, the Grantee Party advised that they agreed to the terms of that agreement.
(c)     On 8 June 2011, the Government Party provided a draft Section 31 Deed to be entered into between the Applicant, the Grantee Party, the Government Party and the registered native title claimant for the Darumbal native title determination application QC97/21 (Darumbal Native Title Party) in relation to EPM 18232.
(d)    The Grantee Party has advised that they have entered into an ancillary agreement with the Darumbal Native Title Party in relation to the grant of EPM 18232.
(e)     The Section 31 Deed provides for the consent of the Applicant to the grant of EPM 18232, on the basis that the Applicant and the Grantee Party have entered into the Ancillary Agreement which deals to their satisfaction with the effect of the grant of EPM 18232 on the native title rights and interests claimed in the PCCC Native Title Claim.
(f)   On 15 June 2011, Gadens Lawyers posted execution copies of the Ancillary Agreement and the Section 31 Deed, together with a summary of the main terms of those agreements to the 14 persons comprising the Applicant for their consideration and they were requested to return the signed documents by 24 June 2011 if acceptable.
(g)    The Ancillary Agreement and the Section 31 Deed were signed by 12 of the 14 persons who comprise the Applicant between 24 June and 6 July 2011, with Michael Williams and Dean Sarra being the only members of the Applicant who have not signed those documents.
(h) Michael Williams has not attended any meetings of the Applicant and has refused to sign any documents for approximately 18 months. The Applicant and Gadens Lawyers understand that he no longer wishes to participate in the PCCC Native Title Claim, nor undertake any role as part of the registered native tile claimant. This includes the execution of documents, including those relating to future act and cultural heritage matters and a number of cultural heritage management plans have been approved under the Aboriginal Cultural Heritage Act 2003 (Qld) without his signature.
(i)   An indigenous land use agreement was also registered by the National Native Title Tribunal without Michael William’s signature on 28 July 2011.
(j)   The Applicant and Gadens Lawyers have been advised by Paul Richards, solicitor from Queensland South Native Title Services that on 10 August 2010 he received a letter from Michael Williams confirming that he no longer wishes to participate as part of the registered native title claimant. Gadens Lawyers has further been advised that Queensland South Native Title Services have misplaced that letter and they have not been able to provide a copy for that reason.
(k)     Michael Williams has not advised the Applicant nor Gadens Lawyers that he has any particular issue with the terms of the Ancillary Agreement or the Section 31 Deed, nor any other reason for not signing those documents.
(l)   On 23 and 24 July 2011, an authorisation meeting was held in relation to the PCCC Native Title Claim and the claim group passed a resolution to remove and replace the registered native title claimant.
(m) An application to the Federal Court under section 66B of the Native Title Act 1993 (Cth) has been made to remove and replace the Applicant with 7 other persons, including Dean Sarra.
(n)    On 20 September 2011, Dean Sarra advised Gadens Lawyers that he does not wish to sign the Section 31 Deed or Ancillary Agreement because he considers that the Applicant does not have any authority from the claim group as a result of the resolutions passed at the authorisation meeting. He has advised that he will be happy to sign the documents when a section 66B order is made and the new applicants become the registered native title claimant.
(o)    If the Applicant ceases to [sic] the registered native title claimant, the Ancillary Agreement requires them to assign their rights and interests to the new registered native title claimant and to use their best endeavours to obtain the agreement of the new registered native title claimant to be bound by the terms of the Ancillary Agreement.
(p)    It is submitted that Dean Sarra’s reasons for refusing to sign the Section 31 Deed and Ancillary Agreement relate to his authority to sign the documents, rather than the conditions to be complied with in relation to the grant of EPM 18232.”
A Preliminary Conference was convened on 7 October 2011, and each of the parties, other than the second native title party, participated. During that conference I sought from the government party its views on the adequacy of the material lodged by the first native title party. In particular it was pointed out that the material lodged in support of the determination was not in the form of sworn affidavits and that some material had been misplaced.
Ms. Newrick confirmed that the government party had some residual concerns about the reason why some of the persons comprising the Applicant were refusing to execute agreements. She noted that this was not a new problem, and the basis for non-cooperation appeared to have changed as this calendar year progressed. Ms. Newrick indicated that the material in the Form 5 was sufficient for the purpose of the non-execution of Mr. Williams but was not so sure about Mr. Sarra.
Mr. Assoyo confirmed that Mr. Sarra was one of the persons comprising the current Applicant and, if the s. 66B application is successful, he would remain as one of the persons comprising the new Applicant. His refusal to execute agreements was a transitory issue which would be resolved once the proposed new Applicant was constituted.
Mr. Streader, on behalf of the grantee party, expressed his concern and frustration that despite best endeavours and considerable costs, the proposed tenement was still not granted. The application for the proposed tenement was originally made in approximately August 2009, and despite the effluxion of two years no result appeared imminent.
Directions were made requiring the government and native title parties to provide contentions by 21 October 2011 and the grantee party was at liberty to reply to any material provided by 28 October 2011.
On 12 October 2011 Mr. Asoyo wrote to the Tribunal in the following terms:
“We act on behalf of the registered native title claimant Port Curtis Coral Coast People (QC01/29) and further to the preliminary conference held on 7 October 2011, we confirm that:
(a)    12 of the 14 persons who comprise the registered native title claimant for the Port Curtis Coral Coast People have signed:
(i)a Native Title and Cultural Heritage Agreement (Agreement) between them and Pacific Fertilisers and Chemicals Pty Ltd; and
(ii)the Section 31 Deed as prepared by the State of Queensland,
and they wish to proceed in this matter by way of a consent determination;
(b)    2 of the 14 Applicants who have not signed the Agreement have refused to do so for reasons other than disagreeing with the ‘in principle’ terms of the Agreement;
(c)     we continue to hold instructions to act for the current registered native title claimant and seek a consent determination from the Tribunal in this matter; and
(d)    a copy of the Agreement is enclosed with this letter to assist the Tribunal in making its determination. The Agreement is confidential between the parties and we request that it not be made available on the public record and it is returned to us upon the Tribunal making its determination.”
On 14 October 2011 Ms. Newrick, on behalf of the government party, wrote to the Tribunal in the following terms:
“In regards to the material filed by Gadens Lawyers on behalf of Port Curtis Coral Coast, namely the Form 5 lodged on 20 September 2011 and the letter to the Tribunal dated 12 October 2011, the State consents to the making of a consent determination in the following terms: that the act be done subject to the terms of the Ancillary Agreement between Pacific Fertilisers and Chemicals Pty Ltd and the Port Curtis Coral Coast, which I understand has been filed with the Tribunal.
The State was advised by Pacific Fertilisers and Chemicals Pty Ltd on 22 June 2011 that they had signed an Ancillary Agreement with the Darumbal People on 6 May 2011.”
Mr. Lavery, on behalf of the second native title party, emailed the Tribunal on 19 October 2011 as follows:
“The Darumbal Party supports a s 38 NTA determination by consent to enable the Port Curtis Coral Coast Party NT/CH agreement with the Grantee Party to come into effect, and submits accordingly to the Tribunal.”
Finally, Mr. Streader, on behalf of the grantee party, by letter dated 25 October 2011, informed the Tribunal that it did not wish to make any further submissions and supported the Tribunal proceeding to make a consent determination in accordance with the Directions made on 7 October 2011.
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 emphasised 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.
Recently there have been a series of Federal Court decisions on the relationship between the Applicant of a claimant application and the broader claim group, and the means by which decisions of the Applicant can be taken. The first three of those decisions, namely Butchulla People v Queensland (2006) 154 FCR 233, Doolan v Native Title Registrar (2007) 158 FCR 56 and Chapman v Queensland (2007) 159 FCR 507 were discussed in Foster & Ors (Waanyi Peoples) & Anor/Zinifex Australia Ltd & Anor/Queensland [2007] NNTA 92. In that determination five scenarios were set out (at [26]) as a means of explaining the implications of those Federal Court decisions.
Since that time there have been a number of other Federal Court decisions. The four most recent are Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809, Tigan v Western Australia [2010] FCA 993, Weribone v Queensland [2011] FCA 1169 and Anderson v Queensland [2011] FCA 1158.
One principle which is clear from all of the above decisions, is that the Applicant, and only the Applicant, is entitled to deal with all matters arising under the Act. There are very clear limits on the capacity of the claim group to give instructions to the persons comprising the Applicant, and, in effect, substitute the power of the Applicant as prescribed by s. 62A, by resolutions of the claim group. As Collier J said in Anderson v Queensland [2011] FCA 1158 (at [49]:
“The claim group is not empowered by the Act to control the conduct of the application before the Court, including the identity of the solicitors to be instructed by the applicant. That the claim group in authorisation meeting does not have the power to terminate instructions to one form of lawyers and to instruct another, is clear from the decisions in Ankamuthi, Roe and Tigan.”
The second proposition flowing from at least some of these cases is that decisions by the persons comprising the Applicant cannot (subject to the issue of the basis of authorisation) be made by a majority of the persons comprising the Applicant. In Tigan v Western Australia Gilmour J said (at [28]):
“The issue raised by the second submission does not concern the authorisation of any of the members of the applicant in that capacity but rather whether they can cause the applicant to deal with a matter arising under the Act in relation to the application by majority decision. My opinion, as I said, is that they cannot. They must act in concert. If dissension arises, as it seems has occurred here, between the named persons who are the applicant, then there are procedures under the Act for the native title claimant group to effect a change in the membership of the applicant. Indeed that has been foreshadowed in this case.”
His Honour, when reaching this conclusion quoted extensively from the earlier Queensland decisions of Kiefel and Spender JJ cited previously. In those cases, however, the Court re-affirmed the statutory requirement that members of the Applicant, while authorised individually, must act jointly. The earlier Queensland authorities recognised that a decision could be made by less than all of the persons comprising the Applicant. The emphasis was on the ability or capacity of persons to act in their role as a member of the Applicant. Thus Spender J said in Doolan (at [57]):
“However, I think that an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of a native title claim group is an authorisation for the named persons to act, or so many of them as remain willing and able to act. It is those persons who constitute the ‘applicant’.”
In short, both the earlier and later decisions are consistent in that they place primacy on the role of the Applicant in dealing with all matters arising under the Act, but also in recognising that the Applicant must speak with one voice. That “voice” however is the voice of those who are willing and able to “speak”. If persons forming part of the Applicant choose to absent themselves from the process, then those persons willing and able to perform the duties reposed on them, can make the requisite decisions.
There is, however, a difference between the various judgments as to whether the claim group when appointing the persons comprising the Applicant, can determine the basis on which decisions of the Applicant can be made. In Anderson the Wulli Wulli and DJJ Peoples at the authorisation meeting of 14 February 2009 authorised the appointed persons comprising the Applicant to act on their behalf according to certain terms and conditions. One of those terms and conditions was that decisions of the Applicant would be on the basis of a majority vote and that all persons comprising the Applicant would abide by a majority decision. Collier J made the following findings endorsing this approach ([60] – [62]):
“60 I do not consider that s 61(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions. Section 251B of the Act confers power on the native title claim group to authorise a person or persons to make a native title determination application....
62 In this case, unlike in Tigan, the Wulli Wulli claim group, in authorising the 15 persons to be the applicant for the purposes of the claim, resolved that those 15 persons be empowered to act in accordance with a decision by majority. It is entirely reasonable, and consistent with the terms and purpose of the Act to promote progress of a claim, that the claim group should be able to so qualify the decision-making role of the applicant. In my view, the Act supports an approach whereby the claim group sanctions decisions of the applicant by majority, and further supports effect being given to majority decisions of the applicant in such circumstances.”
This approach is arguably inconsistent with the conclusion reached by Logan J in Weribone. In that matter, decided only five days before Anderson, Logan J did not have a factual situation equivalent to Anderson. However he did make some obiter comments about the capacity of a claim group to determine whether decisions by the persons comprising the Applicant could be by majority vote. Logan J observed (at [15]):
“this authorisation does not even purportedly authorise the applicant to act by majority. Further, the reference to ‘process’ is nothing more than the process of decision-making by which authorisation occurs. It does not, in my opinion, admit of the authorisation process being grafted on to the language of s 62A. In other words, insofar as the submission carried with it anything of the notion that the native title claim group may in some way direct how the applicant is to carry its business of dealing with ‘all matters arising under this Act in relation to the application’, I reject that submission.”
As I read these various Federal Court decisions, they underscore the approach taken by the Tribunal when making consent determinations. The Court recognises that the persons comprising the Applicant must act jointly. In short, they must make a decision unanimously. However, that decision is only uniform amongst those persons comprising the Applicant who are willing and able to carry out the trust reposed in them by the claim group. As the Court has made repeatedly clear, an appointment as a registered native title claimant carries with it trust-like responsibilities, as distinct from personal rights – Button v Chapman [2003] FCA 861 at [9]. Accordingly, if a person is either ill or for whatever reason cannot, or will not, carry out the duties incumbent on being an Applicant, then decisions can be made by the remaining persons who are ready, willing and able to fulfil the trust reposed in them by the claim group.
If, for whatever reason, the government party is not willing to execute an agreement on this basis and seeks “comfort” in the Tribunal making a s. 38 determination, then it is open for the Tribunal to do so. In determining whether to exercise the discretion vested in it, the Tribunal will have regard to the material submitted to determine if it is appropriate to exercise its discretion and make a determination in the terms sought. Of importance in this regard, is whether the parties are legally represented and that reliance can be placed on those submissions rather than seeking to go behind or beyond them.
Whether an Applicant can operate by a majority vote, on the basis of the authorisation meeting, is a moot point. This is a question that might be resolved, in due course, by the Full Federal Court. However, one issue is very clear so far as the Tribunal’s consent determination powers are concerned. There cannot be a consent determination when the persons comprising the Applicant are divided on the merits of an agreement. Not only is it not clear if the Applicant can make a decision, but concomitantly, it is also not clear if the native title party has reached a view. A consent determination can only be made if there is broad agreement between the negotiation parties. If the native title party is divided, then the legal basis under s. 39(4) of there being an agreement between the parties is absent.
In this matter, however, it is clear that there is agreement in principle between all of the parties, and in particular, between the first native title party and the grantee and government parties. The failure of two of the persons comprising the Applicant of the first native title party to execute the agreement is not related to the terms of the agreement. The following key matters are apparent from the material before the Tribunal:

(a)the draft ancillary agreement between the first native title party and the grantee party has been provided to the Tribunal;
(b)I have perused the agreement and it would appear to provide benefits to the first native title party that exceed those that would apply if no agreement was reached and the standard government conditions applied;
(c)the second native title party has already reached an accord with the grantee party, and supports the making of a consent determination to facilitate the agreement between the first native title party and the grantee party;
(d)the failure of two of the persons comprising the Applicant of the first native title party to execute the ancillary agreement is ostensibly unrelated to the terms of that agreement;
(e)the first native title party is legally represented, and has had the benefit of professional legal advice throughout this process;
(f)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 18232 to Pacific Fertilisers and Chemicals Pty Ltd, may be done subject, in the case of the first native title party, to compliance with the terms and conditions of the “Native Title and Cultural Heritage Agreement” between the grantee party and the first native title party as filed with National Native Title Tribunal.

John Sosso

Deputy President