William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation RNTBC
[2025] NNTTA 21
•31 July 2025
NATIONAL NATIVE TITLE TRIBUNAL
William Gerard Tully v Boonthamurra Native Title Aboriginal Corporation RNTBC and Another [2025] NNTTA 21 (31 July 2025)
Application No: | QF2024/0001 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
William Gerard Tully
(grantee party)
- and -
Boonthamurra Native Title Aboriginal Corporation RNTBC (QCD2015/008)
(native title party)
- and -
State of Queensland
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 31 July 2025 |
Catchwords: | Native title – future act – s 35 application for determination – mining claim application – power to make determination – whether grantee party has negotiated in good faith – grantee party has negotiated in good faith – Tribunal has power to proceed with future act determination inquiry – s 39 criteria considered – effect of act on native title rights and interests – effect of act on development of social, cultural and economic structures of native title party – effect of act on way of life, culture and traditions – effect of act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done subject to conditions |
Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) Mineral Resources Act 1989 (Qld) ss 10A, 64A, 85, sch 2 Native Title Act 1993 (Cth) ss 7, 24MD, 25, 28, 29, 30, 31, 36, 38, 39, 41, 60AB, 237, sub-div M, sub-div P Racial Discrimination Act 1975 (Cth) s 10 |
Cases: | Bissett and Others v Mineral Deposits (Operations) Pty Ltd and Another [2001] NNTTA 104; (2001) 166 FLR 46 (‘Bissett v Mineral Deposits’) Carpentaria Gold Pty Ltd/Birri People/Queensland, [2010] NNTTA 148 (‘Carpentaria Gold’) Cheedy and Others v Western Australia and Others [2011] FCAFC 100; (2011) 194 FCR 562 (‘Cheedy’) Evans and Another v Western Australia and Others [1997] FCA 741; (1997) 77 FCR 193 (‘Evans v Western Australia’) FMG Pilbara Pty Ltd v Cox and Others [2009] FCAFC 49; (2009) 175 FCR 141 (‘Cox’) FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another [2020] NNTTA 8 (‘FMG’) Garry Verdon Higgins and Another v Boonthamurra Native Title Aboriginal Corporation RNTBC [2018] NNTTA 18 (‘Higgins’) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (‘Gomeroi’) Kevin Alfred De Roma v Western Yalanji Aboriginal Corporation RNTBC and Another [2022] NNTTA 40 (‘De Roma’) Malu Lamar (Torres Strait Islander) Corporation RNTBC v Findlay (No 2) [2018] FCA 1150; (2018) 265 FCR 454 (‘Malu Lamar’) Seven Star Investments Group Pty Ltd v Western Australia and Others [2011] NNTTA 53; (2011) 257 FLR 175 (‘Seven Star’) State of Queensland v Central Queensland Land Council Aboriginal Corporation and Another [2002] FCAFC 371; (2002) 125 FCR 89 (‘Queensland v CQLC’) Stephen Christopher Purse v Guwa-Koa Aboriginal Corporation RNTBC and Another [2022] NNTTA 7 (‘Purse’) Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600 (‘Boonthamurra Determination’) Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’) Western Australia/West Australian Petroleum Pty Ltd and Shell Development (Australia) Pty Ltd/Leslie Hayes, Glenys Hayes, Judy Hayes, John Ard, Douglas Fazeldean, Valerie Ashburton, Laura Hicks and Albert Hayes on behalf of the Thalanyji People (WC99/45) [2001] NNTTA 18 (‘Shell v Thalanyji’) |
| Representatives of the native title party: | David Yarrow of Counsel; Anna Matthews, Queensland South Native Title Services |
| Representative of the grantee party: | Kevin Phillips, Queensland Opal Miners Association Inc |
| Representatives of the Government party: | Marc McKechnie of Counsel; Leilehua Fa’onevai, Crown Law; Leonie Crane, Julie Hookey and Amelia Johnson, Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development |
REASONS FOR DETERMINATION
William Gerard Tully has applied to the Tribunal for a determination that proposed mining claim MC 300436 may be granted. Boonthamurra Native Title Aboriginal Corporation RNTBC holds non-exclusive native title rights in trust for the Boonthamurra People in relation to most of the area of the mining claim (see Boonthamurra Determination).
Mr Tully and Boonthamurra had been negotiating about the grant of the mining claim since late May 2023, but negotiations ceased on lodgement of this application. The State of Queensland was also a party to the negotiations but did not take an active role.
Boonthamurra opposes a determination by the Tribunal that the mining claim may be granted, and it also argues that Mr Tully did not negotiate in good faith in accordance with s 31(1)(b) of the Native Title Act1993 (Cth). If Boonthamurra satisfies me that Mr Tully did not negotiate in good faith, then I do not have the power to determine whether the mining claim may be granted: s 36(2) Native Title Act.
For the reasons outlined below, I am satisfied that I have the power to determine this matter and I have determined that the mining claim may be granted subject to conditions regarding cultural heritage protection.
Where is the mining claim and what activities does Mr Tully propose to undertake?
The mining claim is about 8.5 hectares in area and situated approximately 35 kilometres northwest of Eromanga in the far south-west of Queensland.
The majority of the area underlying the mining claim is a rolling term lease - pastoral held by Mr Tully and his brother, Jack Joseph Tully. The remainder is a road which was excluded from the Boonthamurra Determination, so there is no determination of native title over that area.
There is no designated road access directly to the mining claim. The path of access is described in the mining claim application by reference to waypoints. However, Mr Tully says that the access route has since been amended and is now via dedicated access to the term lease from Eromanga-Windorah Road, as shown on additional mapping provided by both Mr Tully and the State.
The mining claim falls within Restricted Area 261 gazetted under the Mineral Resources Act 1989 (Qld) which the State refers to as Opal Mining Reserve Restricted Area 261. While nothing especially turns on the existence of the Restricted Area, it is not in dispute that part of the mining claim area has been the subject of previous mining activity. Mr Tully has provided an aerial map showing areas of previous disturbance, and Mr Richard Wallace (known as Mr Mark Wallace), a Boonthamurra man and a director of the corporation, states in his affidavit that part of the area was mined for opals in the 1960s.
The proposed term of the mining claim is 10 years. The work program submitted with Mr Tully’s application provides some basic information about his proposed activities including reconstructing and grading existing tracks, excavation of trenches, the creation of mining pits and rehabilitation. In his contentions, Mr Tully provides the following description of his proposed activities which he says will be conducted in accordance with the State’s Small Scale Mining Code:
(b)Mining will be an open cut operation utilising a 30 tonne excavator and a 20 tonne Loader, chasing the opal levels within the boundaries of the tenure area which are already in part revealed within the significant ground disturbance throughout the tenure area.
(c)Mining will take part only part time when either his normal work as a contract musterer subsides due to seasonal fluctuations and when times allows and will be conducted over the cooler months of the year when the weather is kinder on both man and machinery.
(d)Rehabilitation will be undertaken in accordance with the Mining Claim Permit and the small mining code if granted. The areas which are already “significantly disturbed” by historic activities, the rehabilitation will be undertaken in accordance with the Mining Claim Permit if granted.
(As per original)
The preliminary question – has Mr Tully negotiated in good faith?
The scope of the obligation to negotiate in good faith under s 31(1)(b) was recently considered by the Full Court of the Federal Court of Australia in Gomeroi. The good faith requirement is directed towards the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is concerned with a party’s state of mind as manifested by its conduct: Cox at [20].
Mortimer CJ observed in Gomeroi at [96] that the “Tribunal is after all doing no more at the good faith constraint stage than assessing the course of a negotiation, and measuring it objectively against a standard of honesty, open mindedness and willingness to listen”. The Tribunal’s role is not to form its own assessment of whether a particular offer was “reasonable” or not, although making a patently unreasonable offer might be one indicia of a lack of fair dealing or honesty, or it may not: see discussion in Gomeroi at [95]–[97].
As discussed in Gomeroi at [406], the obligation to negotiate in good faith involves both objective and subjective standards, but the reference to objective standards is the objective standard of honesty against which a party’s conduct is to be assessed. The good faith obligation is principally concerned with a negotiating party’s intention, namely whether the party has negotiated with the aim of reaching agreement.
What happened during the negotiations?
For the purposes of s 29 of the Native Title Act, the notification day for the mining claim was 26 May 2023. Negotiations between the parties appear to have commenced shortly thereafter when Boonthamurra’s representative, Queensland South Native Title Services (QSNTS) wrote to Mr Tully enclosing a draft Ancillary Agreement. Negotiations continued up until Mr Tully’s lodgement of this application. Apart from his initial correspondence with QSNTS, Mr Tully was represented throughout by Mr Kevin Phillips of the Queensland Opal Miners Association Inc (QOMA).
Boonthamurra relies on the course of conduct set out in the affidavit of Ms Anna Matthews, a lawyer with QSNTS, which attached relevant correspondence. Mr Tully referred to much of the same information but also identified additional correspondence in his materials.
An overview of the engagement between the parties is outlined below.
Preliminary engagement from 26 May 2023 to December 2023
While Boonthamurra provided Mr Tully with the Ancillary Agreement shortly after the notification day, little progress was made during the remainder of 2023.
QSNTS followed up on a response to the Ancillary Agreement in July 2023. Mr Tully responded to explain his review had been delayed by a medical issue but, having since had the opportunity to review, he found the Ancillary Agreement overwhelming. He also referred to the significant previous disturbance in the area and said he had been made aware that he could rely on the Cultural Heritage Duty of Care Guidelines, being guidelines made under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). Mr Tully said he was in the process of surveying the area with a view to providing disturbance mapping and would respond with an alternative process and agreement. Mr Tully also advised that he had authorised Mr Phillips to be his representative.
Further exchanges occurred in September and October 2023, with Mr Phillips explaining the health and other reasons for the delay in response. The material indicates that on 30 October 2023, Mr Phillips advised he was waiting on a final version of disturbance mapping to provide to Boonthamurra and confirmed Mr Tully sought to progress negotiations by way of a meeting with Boonthamurra in Quilpie. On 13 November 2023, QSNTS responded to say that it looked forward to receiving the alleged disturbance mapping and, once received, negotiations could progress with the Boonthamurra board.
January to June 2024 – discussions about cultural heritage management, agreement options, requests for a meeting and an attempt at mediation
On 9 January 2024, Mr Phillips provided QSNTS with two maps showing disturbance in the mining claim area and confirmed Mr Tully wanted to progress this matter by using the Duty of Care Guidelines given the extent of the prior disturbance.
Between March and June 2024, there were several exchanges between Ms Matthews, the new QSNTS representative for Boonthamurra, and Mr Phillips which illustrate the divide between the parties and Mr Tully’s efforts at finding a solution. Some of the key messages conveyed in those exchanges are summarised as follows:
(a)in response to Ms Matthew’s request for an update on the progress of Mr Tully’s review of the Ancillary Agreement, Mr Phillips repeated Mr Tully’s view that the Ancillary Agreement was not suitable and his desire to rely on the Duty of Care Guidelines;
(b)Ms Matthews sought to explain why Mr Tully’s approach was not acceptable in the context of the right to negotiate, repeating requests for a response to the Ancillary Agreement, as well as later noting that the previous disturbance did not cover the whole of the mining claim area;
(c)Mr Phillips advised Mr Tully’s view was that the Ancillary Agreement was “too onerous” and again proposed a face to face meeting between the parties;
(d)on a number of occasions, Mr Phillips raised the prospect of using previous agreements negotiated by QOMA with Boonthamurra as a model in this matter, subject to Boonthamurra’s agreement (noting confidentiality constraints), but this was rejected by Ms Matthews in part due to the confidentiality issue; and
(e)Ms Matthews indicated she would seek instructions in relation to a meeting between Boonthamurra and Mr Tully but noted Mr Tully would need to pay the costs of a meeting.
On 19 June 2024, Mr Phillips requested mediation assistance from the Tribunal on behalf of Mr Tully, which he had foreshadowed with QSNTS. Boonthamurra was not amenable to mediation at that time, with Ms Matthews advising both the Tribunal and Mr Phillips that Boonthamurra preferred to endeavour to progress negotiations through a meeting between the parties first. I note that in his contentions, Mr Tully says he felt given the impasse between the parties, a meeting was more likely to come to fruition with mediation. Boonthamurra contends there was no impasse, it just preferred the parties to meet first, although Ms Matthews’ various emails with Mr Phillips and communication with the Tribunal show that Boonthamurra’s clear preference was for the parties to progress the negotiations themselves and only consider mediation if those endeavours failed. Because of Boonthamurra’s position, the Tribunal terminated the mediation before any substantive step was taken. The material indicates that Mr Phillips, for Mr Tully, was unhappy with that event and felt that the reason for termination had not been adequately explained at the time.
July to October 2024 – efforts to meet and costs estimates
Despite these apparent setbacks, the parties continued to discuss a proposed meeting. Between 23 July 2024 and 8 August 2024, parties exchanged correspondence relating to the costs of a meeting between Boonthamurra and Mr Tully. Boonthamurra put forward two alternate budgets; one for a meeting in Eromanga (estimated at approximately $22,000 plus GST) and the other in Brisbane (estimated at approximately $14,500 plus GST). Boonthamurra said it was also liaising with another proponent about the possibility of cost sharing. Mr Phillips confirmed Mr Tully was unable to afford the budgets put forward by Boonthamurra and proposed, as an alternative, an hour meeting by teleconference with one person from Boonthamurra and Ms Matthews as Boonthamurra’s representative.
On 21 August 2024, Ms Matthews confirmed Boonthamurra was interested in meeting with Mr Tully provided the meeting occurred on country with three directors from Boonthamurra and one legal representative from QSNTS.
On 15 September 2024, Mr Phillips confirmed that the new proposal would still be unaffordable for Mr Tully. Mr Phillips noted Mr Tully “still stands by his cultural heritage inspection” but suggested, in an effort to resolve this matter, Mr Tully could “utilise his [two] Boonthamurra [e]mployees to undertake a [c]ultural [h]eritage [i]nspection at a rate agreed between [him] and those persons”. Mr Phillips agreed to prepare a draft agreement for Boonthamurra’s consideration if it was willing to consider this proposal.
On 23 September 2024, Ms Matthews confirmed Boonthamurra maintained its position that there should be a meeting between the parties to negotiate this matter. Ms Matthews acknowledged Mr Tully was unable to fund the meeting proposed by Boonthamurra which, she said, “was a significant compromise” and requested Mr Tully to advise on what terms he would be willing to fund a meeting, noting more than one Boonthamurra representative would be required to attend. Ms Matthews noted Mr Tully’s proposal regarding the cultural heritage inspection could be discussed at the meeting but that it would be difficult for Boonthamurra to agree to.
On 30 September 2024, Mr Phillips advised that Mr Tully had provided a proposal for a meeting which had been rejected by Boonthamurra. Mr Phillips said that, because there had been no progress, he had been instructed to apply to the Tribunal for a future act determination.
On 4 October 2024, Ms Matthews provided Mr Phillips with a brief history of negotiations, noting Mr Tully had not engaged in good faith negotiations and stating his position on funding a meeting was unreasonable. Ms Matthews referred to Boonthamurra’s alternative meeting proposal and noted Boonthamurra was willing to compromise on a budget so requested Mr Phillips seek instructions on an alternative meeting proposal and to reconsider applying for a future act determination at this stage.
On 6 October 2024, Mr Phillips advised Ms Matthews that he had been instructed to lodge this application.
What does Boonthamurra assert?
Boonthamurra’s initial contentions on the issue of good faith were relatively brief and characterised Mr Tully’s negotiating conduct as “halting, hesita[nt], unresponsive and procrastinating”. It focussed on what it said was Mr Tully’s lack of a substantive response to the Ancillary Agreement, his refusal to fund a meeting, rejection of alternative meeting proposals and failure to engage with Boonthamurra as with any owner of land.
However, in reply and during the hearing, Boonthamurra expanded in some detail on its arguments, particularly as they concerned Mr Tully’s approach to cultural heritage and compliance with the Mineral Resources Act. For convenience, I have grouped the arguments below.
Ancillary Agreement, meeting proposals and confidentiality
A number of Boonthamurra’s complaints concerning the manner in which the negotiation proceeded and Mr Tully’s efforts at negotiation are interrelated and it is convenient to deal with them together.
Specifically, Boonthamurra says that Mr Tully’s failure to provide any feedback on the Ancillary Agreement unduly delayed the negotiations.
Boonthamurra submits that it is Mr Tully’s obligation to progress the negotiations and/or engage external assistance to facilitate negotiations. I note that all parties share the obligation to negotiate in good faith. Also, it is not clear what Boonthamurra means by external assistance. Mr Tully did enlist the assistance of Mr Phillips and it was Mr Tully who requested mediation by the Tribunal in June 2024. It was Boonthamurra which said it was not ready to participate in mediation.
Boonthamurra also complains that it was not until April 2024 that Mr Tully gave any substantive response to the Ancillary Agreement, when he said it was too onerous. Additionally, Boonthamurra argues that Mr Tully chose not to provide feedback then, whereas more specific feedback has been provided in Mr Tully’s contentions. This is not entirely accurate in my view. Mr Tully repeatedly expressed his view about the Ancillary Agreement being unsuitable from the outset, referring to it as “a bit overwhelming” in July 2023, although it was only in April 2024 that the word “onerous” was used. During that time, Mr Tully did suggest the parties could look to other examples, although these were not agreeable to Boonthamurra. Further, the argument Mr Tully makes in his contentions is that to mark up the agreement would have been virtually meaningless because of the extent to which it would have been amended to accommodate his reliance on the Duty of Care Guidelines.
For whatever reason, the parties seemed unable to progress any detailed discussion of the issues for an agreement and there is no evidence that either party sought to interrogate the other’s position in any meaningful way. Just as Mr Tully was repeating his views, so too was Boonthamurra mostly repeating its request for a marked-up response. On the evidence before me, neither party appears to have picked up the telephone to explore the issues and a way forward which seems unfortunate, as does the missed opportunity of mediation.
However, I do not read Mr Tully’s approach as being intentionally obtuse or unresponsive because he did proffer alternatives and explain the reasons for his preference to rely on the Duty of Care Guidelines.
Boonthamurra also argues that Mr Tully failed to make any reasonable proposals or counteroffers regarding a meeting between the parties. Mr Tully had requested a meeting with Boonthamurra representatives as early as 30 October 2023 and this request was repeated on multiple occasions. After Ms Matthews became the relevant representative for Boonthamurra, Mr Tully again made a request for a meeting on 11 April 2024.
Subsequent discussions regarding a meeting collapsed over costs. Mr Tully says that he was seeking an informal meeting and the scale of meeting costs proposed by Boonthamurra was exorbitant. Boonthamurra says that it was responding to Mr Tully’s suggestions for a meeting in Quilpie or Eromanga (with Boonthamurra proposing Brisbane as a cheaper alternative) and that it also made a reasonable counteroffer when Mr Tully indicated he could not fund a meeting of the scale proposed. It also proposed cost sharing measures with other proponents which is not uncommon. Mr Tully did offer to fund a teleconference with one Boonthamurra representative and Ms Matthews but once that approach was not accepted, the negotiations came to an end.
In its reply to the State’s contentions, Boonthamurra acknowledges that there is no obligation on any one party to fund a meeting but says that Mr Tully’s conduct should be considered as a whole and the position regarding funding should also be considered in light of more recent authorities such as De Roma which came after the introduction of s 60AB of the Native Title Act. Overall, I do not disagree with those submissions, save that it is the entirety of the negotiations that I must view as a whole.
Boonthamurra also took issue with Mr Phillips raising the possibility of taking a similar approach to other Boonthamurra agreements he had worked on and says that Mr Phillips inappropriately disclosed the names of other proponents. Boonthamurra contends that the reliance on and disclosure of confidential information is indicative of a failure to negotiate in good faith, although at the hearing it acknowledged that this issue on its own would not be critical but is one piece of evidence which could be taken with other matters.
I am not persuaded by these arguments in the context of this matter. Mr Phillips says he did not discuss the terms of these agreements with Mr Tully, a point which Boonthamurra questions in light of the agency relationship between the two. However, Boonthamurra makes only generalised assertions on this point and there is no evidence regarding any breach of confidentiality. It is not clear at all that Mr Tully identifying specific grantee parties was a breach of anything, when presumably those individuals would have been named in s 29 notices and in the State’s tenement register. More to the point, Mr Phillips is a peak body representative for opal miners with experience in negotiating for various grantee parties. He was trying to find a path to agreement and it was in fact Mr Phillips who first raised the issue of confidentiality, so he was alive to the issue. It might have been possible for Mr Phillips to suggest suitable terms based on his experience without reference to any prior agreement or a breach of any confidential information but he was, in my view, simply looking for a short cut to common ground and a suitable way forward. However, the suggested approach did not proceed past the question of confidentiality.
Mr Tully’s approach to cultural heritage
Mr Tully’s approach to cultural heritage management in this matter emerged as one of the key good faith issues for Boonthamurra and it is evident from the correspondence that cultural heritage was a pressure point in the negotiations.
The draft Ancillary Agreement provided by Boonthamurra included a detailed cultural heritage process, whereas Mr Tully primarily sought to rely on the Duty of Care Guidelines and his own expertise, although he was willing to consider other agreement examples. Eventually, Mr Tully said that he would be agreeable to arranging for two of his employees who are Boonthamurra People to conduct a survey at a cost to be agreed with those individuals.
As to his expertise, Mr Tully has gone to some length in his contentions to outline his credentials in relation to cultural heritage assessment. The points raised by Mr Tully include:
(a)his upbringing in the Eromanga area and his knowledge of and connection to the area;
(b)his education in the identification of cultural heritage by various Aboriginal people, including Boonthamurra People throughout his life; and
(c)his role in identifying an Aboriginal fish trap and ensuring its protection and access to the site by the Mardigan People.
Mr Tully contends that the protection of cultural heritage can be a shared responsibility and asserts that what he calls the ““paternal and commercial” approach” taken by Boonthamurra’s legal representative is not the only approach to resolution.
With respect to the application of the Duty of Care Guidelines, Mr Tully contends that much of the area of the mining claim has been subject to significant ground disturbance which he says would place it in Category 4 of the Duty of Care Guidelines. Mr Tully goes on to describe undertaking three cultural heritage inspections of the mining claim area, one as landowner in assessing how to rehabilitate the area and twice related to pegging the mining claim.
Boonthamurra disputes Mr Tully’s assessment under the Duty of Care Guidelines and points out that the whole of the mining claim area has not been subject to significant ground disturbance. Boonthamurra also says that Mr Tully is not qualified to make an expert determination of the category in question.
I do not accept Boonthamurra’s submission about Mr Tully not having the requisite expertise to form a view about how the Duty of Care Guidelines might apply. The Duty of Care Guidelines are largely a self-assessment tool and are one way a person undertaking an activity may meet their duty of care under the ACHA. By their own terms they “identify reasonable and practicable measures for ensuring that activities are managed to avoid or minimise harm to Aboriginal cultural heritage in a way that meets the duty of care requirements”. No expert determination is required. Of course, a person relying on the Duty of Care Guidelines may be wrong in their assessment, which carries significant risk for compliance with the ACHA, including penalties.
The fact that the whole of the mining claim area has not been subject to prior disturbance seems evident from Mr Tully’s disturbance mapping and acknowledged by Mr Phillips in his correspondence, although he described it variously as “pretty extensive” and “intensive”.
Even so, there is a significant difference between a proponent undertaking a self-assessment of how the Duty of Care Guidelines might apply in an area subject to previous disturbance and the good faith negotiations between the parties which are directed to obtaining a native title party’s agreement to the doing of a future act. This was a distinction made by QSNTS in negotiations when it pointed out that the area of disturbance did not cover the entire area of the mining claim. Mr Tully may have formed a view that he could meet his duty of care through the application of the Duty of Care Guidelines but Boonthamurra, whose agreement he was seeking to the grant, did not share that view and wanted cultural heritage matters addressed as part of any agreement. These issues could have been further explored by the parties in the negotiation. Perhaps the previous disturbance might have been relevant to the scale of the cultural heritage protection processes ultimately agreed. Again, mediation might have assisted in exploring the options.
There is also a material distinction between Mr Tully making an assessment about how the Duty of Care Guidelines might apply to enable him to meet his cultural heritage duty of care and him undertaking an inspection to determine the existence of cultural heritage in the area. The latter is not Mr Tully’s assessment to make.
I am not questioning Mr Tully’s belief that he has knowledge and experience which may make him more informed than the average person and alive to the risk of harm to cultural heritage. However, Mr Tully is not the Aboriginal party. The Duty of Care Guidelines repeatedly state that the views of the Aboriginal party for an area are key in assessing Aboriginal cultural heritage and managing any activity likely to excavate, relocate, remove or harm Aboriginal cultural heritage. If Mr Tully truly acknowledges the role of Boonthamurra as the Aboriginal party as he submits, that should be evident from his actions.
Nonetheless, while I consider Mr Tully’s views on this aspect were misguided, he was clearly open to alternatives, be it inspection by his Boonthamurra workers or the alternative agreement approach raised by Mr Phillips. Again, I am not suggesting either was an appropriate solution, but the rigid views argued by Boonthamurra are not evident on the material.
Therefore, while aspects of the approach undertaken by Mr Tully with respect to cultural heritage management were ill-advised, I do not think they were so unreasonable or rigid as to amount to a lack of good faith. Mr Tully was endeavouring to reach agreement within the facts as he apprehended them. He was also prepared to consider alternatives which departed from his preferred position and was open to mediation.
Assertion that Mr Tully failed to comply with State regulatory requirements which apply to owners of land
Boonthamurra asserts that Mr Tully has failed to engage with it as he should with any owner of land, which it says is further indication of the absence of good faith in the negotiations. Boonthamurra identifies what it says are two relevant failures on Mr Tully’s part, being:
(a)a failure to serve Boonthamurra with a copy of the documents listed in s 64A(1) of the Mineral Resources Act; and
(b)a failure to engage with Boonthamurra about the matter of compensation under s 85 of the Mineral Resources Act prior to the grant of the mining claim.
Section 64A requires an applicant to provide certain information about a proposed mining claim to an “affected person” which is defined as an owner of land subject to the proposed mining claim or land necessary for access or the relevant local government.
Section 85 of the Mineral Resources Act requires compensation with an owner to be agreed or determined by the Land Court before a mining claim may be granted.
The definition of affected person and s 85 both refer to an “owner” of land. The definition of owner in the Dictionary at sch 2 to the Mineral Resources Act is exhaustive. It lists specific interest holders, such as the holders of fee simple or leasehold interests and, for present purposes,[1] does not include a registered native title body corporate (RNTBC) or registered native title claimant (RNTC).
[1] Cf s 10A of the Mineral Resources Act.
Neither of these requirements appears to have arisen as an issue during the negotiations. Rather, as explained by Ms Matthews, the genesis of the argument appears to be a September 2024 version of the then Department of Resources’ Mining claim application guideline which included a footnote stating that, by operation of s 10 of the Racial Discrimination Act 1975 (Cth), an “affected person” would include a native title party. Ms Matthews also states her understanding that the same position would apply to s 85.
The State says Mr Tully’s compliance with s 64A is not a good faith issue as the relevant version of the guideline was not in place until September 2024, which was after Mr Tully says he had complied with s 64A and, I note, very late in the negotiations. It contends that requiring retrospective application of the guideline is unreasonable and creates an impossibility which cannot serve as a basis for a lack of good faith negotiations. In response to that issue, Boonthamurra points out that if s 10 of the Racial Discrimination Act applies, it is not dependent on the State saying so in a guideline. I do not disagree with that proposition, but I think the point the State is making is that Mr Tully’s conduct must be judged in context. The evidence suggests that this was not an issue either Boonthamurra or Mr Tully were alive to before September 2024. As I said, it did not feature in the parties’ discussions.
In a similar vein, Mr Tully says it is disingenuous for this issue to be raised now when it was not raised in the negotiations. He says that if Boonthamurra thought this was an issue, it should have raised it at the time. There is merit in that view, and I agree with the State’s contention that the issue raised by Boonthamurra does not go to Mr Tully’s good faith on the facts of this case.
If Mr Tully had been aware of an obligation to provide additional material to Boonthamurra and had wilfully ignored that obligation or a similar request by Boonthamurra, then that may well be a relevant consideration to the question of his good faith. However, it is evident that is not the case here. These issues have only been raised after the event.
For the same reason, I do not consider that s 31(2), which provides that a party’s refusal or failure to negotiate about matters unrelated to the effect of the grant on native title rights and interests does not mean that party has not negotiated in good faith (relied upon by the State) is particularly relevant. In Shell v Thalanyji, the Tribunal observed that s 31(2) should not be read too literally, but there is no evidence that Mr Tully refused or failed to negotiate about any particular issue, whether raised by Boonthamurra or otherwise.
The State contends that compensation for the effect of the mining claim on native title is dealt with by the Native Title Act and not the Mineral Resources Act. It says, in any event that, any requirement to comply with s 85 is a matter for the Land Court under the Mineral Resources Act and a failure to comply would result in the grant being statute barred regardless of the outcome of this application. The State also asserts that Boonthamurra would not have the equivalent rights of an owner in this context as it holds non-exclusive rather than exclusive native title rights. Incidentally, both the State and Boonthamurra noted that questions regarding how State compensation provisions apply in relation to compensation for effect on native title is an issue presently before the Federal Court of Australia in a matter in Western Australia.
The question before me is Mr Tully’s good faith and, in my view, there is nothing in what has occurred in Mr Tully’s efforts at compliance with the Mineral Resources Act which impugns his honesty and fair dealing. Further, as the State says and as seems to be acknowledged by Boonthamurra in its characterisation of s 85 as a precondition to grant, the question of compliance with s 85 will be a matter for the relevant decision maker to consider before grant of the mining claim. Additionally, there was nothing to stop the parties discussing the issue of payments or compensation in the negotiations as Boonthamurra argued they should. However, the negotiations did not proceed that far and there is no requirement that they do so (see Cox at [23]). Again, this was not an issue raised by Boonthamurra until this proceeding.
Some comments about the parties’ arguments on the operation of the Native Title Act and the Racial Discrimination Act
Although I am not satisfied that the Mineral Resources Act issues raised by Boonthamurra impugn Mr Tully’s good faith in the manner contended, both the State and Boonthamurra spent considerable time on this aspect of the case and the arguments covered a lot of ground and occupied much of the hearing. For the purposes of the hearing, I had also asked the parties to specifically consider ss 7, 24MD(3), 24MD(6) and 24MD(6A) of the Native Title Act and the decision in Queensland v CQLC. Mr Tully elected to defer to the other parties in relation to the legal argument.
Boonthamurra correctly contends, and the State agrees, that s 24MD(6A) of the Native Title Act generally provides an RNTBC and RNTC with the same procedural rights as an owner of freehold, except, amongst other things, when the future act is one to which Subdivision P applies (as is the case here).
However, Boonthamurra says the application of that provision is not relevant in this case because ss 64A and 85 of the Mineral Resources Act cannot be characterised as procedural rights, with s 64A being an obligation on a mining claim applicant and s 85 a condition on the Minister’s power to grant a mining claim. Further, while the State broadly agrees with Boonthamurra’s analysis of ss 24MD(6), (6A) and Subdivision P, it refers to aspects of the arguments as novel. In particular, it says that the Racial Discrimination Act is not enlivened in the manner outlined because Boonthamurra holds non-exclusive rather than exclusive native title and that it proposes to amend its guideline to reflect that view.
While it is not necessary for me to form a concluded view in relation to either of those matters given my conclusions on good faith, I will briefly mention key aspects of the parties’ submissions regarding the interaction of the Mineral Resources Act, Racial Discrimination Act and Native Title Act and make some general comments.
Boonthamurra argues that s 24MD(6) is not directed to and does not affect the procedural rights afforded to native title holders under other State or Commonwealth legislation (relying on Malu Lamar). It says there is no indication within the Native Title Act of a statutory intention to displace rights under other statutes and so ss 24MD(6) and (6A) do not interfere with State procedures or procedural rights. Further, it says that if s 24MD(6) operated to exclude procedural rights outside of the Native Title Act and reduce procedural rights to the right to negotiate only, the conclusion in Malu Lamar could not have been made.
I have some difficulties with this aspect of Boonthamurra’s argument. As it contends, the Native Title Act, by s 7, largely has primacy over the Racial Discrimination Act. For acts to which s 24MD(6A) applies, the Native Title Act is arguably doing the work which might otherwise, on Boonthamurra’s argument, be done by the Racial Discrimination Act. In general terms, s 24MD(6A) provides that native title parties have the same procedural rights as they would if they instead held ordinary title. However, the Native Title Act also says that is not the case for an act to which Subdivision P applies because, in such a case, a native title party has the right to negotiate in Subdivision P, failure to comply with which results in invalidity: see ss 25(4) and 28 Native Title Act. The implication is therefore that, in such a case, the rights of an ordinary title holder do not apply.
This is the interpretation adopted by the Full Court of the Federal Court of Australia in Queensland v CQLC which carefully considered the interaction of all three statutes (see especially [149]–[150]) and reflects the Explanatory Memorandum to the Native Title Amendment Bill 1997 [No 2] which states at [15.13] that the procedural rights (being the rights afforded to ordinary title holders) “do not apply in these cases because other procedures [meaning Subdivision P] are applicable under the [Native Title Act]”.
Of course, there may be rights, other than procedural rights as defined, in relation to which s 10 of the Racial Discrimination Act is engaged or, in fact, other rights specifically afforded to native title parties under other State or Commonwealth laws. However, it seems tolerably clear that, where there is a vacuum in the rights afforded under, relevantly, State law in relation to an act to which Subdivision M applies, it is nonetheless s 24MD which dictates the applicable procedural rights, not s 10 of the Racial Discrimination Act.
There does not appear to be anything in that analysis at odds with Malu Lamar, which concerned a decision infected with jurisdictional error which the Federal Court of Australia found could not validly affect native title. In that case, the Court did not consider the application of either s 24MD or the Racial Discrimination Act.
Conclusion in relation to good faith
Having regard to the requirements for good faith as outlined above at [10]–[12], I am not satisfied that Mr Tully’s efforts at agreement were not in good faith. Aspects of his approach were somewhat misguided, but not so unreasonable as to constitute a lack of good faith. The most problematic aspect of Mr Tully’s conduct was no doubt his views on conducting cultural heritage assessments himself. His views on the extent of previous disturbance in the mining claim area and why that impacted the approach to cultural heritage protection would be relevant to the negotiations so it was not unreasonable for Mr Tully to raise that as a factor.
However, notwithstanding his views, when presented with reasons why his approach was not appropriate or not entirely appropriate, he tried to explore other agreement models, and he tried to pursue mediation, neither of which were amenable to Boonthamurra or, in the case of mediation, amenable at that time. While my assessment of the parties’ negotiation strategies is not relevant, not pursuing mediation does appear to have been a lost opportunity given the way the negotiations ended.
As is so often the case, the negotiations in this case appear to have faltered at the difficult intersection between the cost and resource burden on a native title party required to participate in s 31(1)(b) negotiations, heritage protection requirements and the capacity of small-scale mining proponents. While unfortunate, I am not satisfied this position arises from a lack of good faith on the part of Mr Tully.
Accordingly, I have the power to decide this matter and will now proceed to consider the determination required by s 38 of the Native Title Act.
Should the mining claim be granted?
What issues must I consider?
Under s 38 of the Native Title Act, I am required to make one of the following determinations:
(a)that the grant of the mining claim must not be done;
(b)that the grant of the mining claim may be done; or
(c)that the grant of the mining claim may be done, subject to conditions to be complied with by any of the parties.
In making a determination, I must take into account the five matters (or groups of matters) set out in ss 39(1)(a)-(c), (e) and (f) of the Native Title Act. As observed by O’Bryan J in Gomeroi at [382], the Tribunal’s task involves balancing all the mandatory considerations. The weight to be afforded to each matter will depend on the evidence (see Western Australia v Thomas at page 166).
With the parties’ consent, I must take into account any relevant issues on which they agree and need not take into account the matters mentioned in s 39(1) to the extent they relate to the agreed issues: s 39(4) Native Title Act. In this case, there are no agreed issues, so I have considered each of the s 39 criteria in turn.
I note at the outset that Mr Tully does not make any specific contentions in relation to the matters listed in ss 39(1)(a) or (b). He states simply that he has no intention to obstruct or deny Boonthamurra from exercising its native title rights and interests, subject only to health and safety requirements.
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Boonthamurra holds non-exclusive native title rights and interests in relation to just over 95% of the area of the mining claim. The registered native title rights and interests relevant for s 39(1)(a) are those described in the entry for the Boonthamurra Determination on the National Native Title Register: s 30(3)(a) Native Title Act.
In its contentions, Boonthamurra outlines its registered native title rights and interests and submits that they “stand to be affected” by the grant. However, it is the effect of the grant on the actual enjoyment of native title rights and interests which is relevant here, not the possible effect (see Seven Star at [38] and FMG at [48]).
There is no evidence regarding the enjoyment of the registered native title rights and interests in the mining claim area. Boonthamurra relies on the evidence of Mr Wallace who speaks about his family and his connection to the Eromanga area. He speaks of going back to the Eromanga area to teach the kids how to make spearheads, fish and find bush medicine and bush tucker. He says he has found stone artefacts and refers to fireplaces in the Eromanga area, as well as native wells on Boonthamurra Country.
However, none of the evidence relates specifically to the area of the mining claim. Accordingly, there is nothing I can usefully glean from the evidence regarding the effect of the grant on the enjoyment of Boonthamurra’s registered native title rights and interests.
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Boonthamurra says the perceived impacts it outlines on its registered native title rights and interests will impact the Boonthamurra People’s way of life, culture and traditions because its practice and enjoyment of those rights and interests are linked to those matters.
Again, the difficulty is that there is no evidence of the practice and enjoyment of those rights and interests in the mining claim area, so I do not give any significant weight to this matter.
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
For this criterion, Boonthamurra relies on Mr Wallace’s evidence about the importance of cultural heritage processes involving Boonthamurra People during mining activity, including the importance of monitoring and fair payment for work. Boonthamurra contends that the authorisation of mining activity without the effective protection and control of cultural heritage impacts by Boonthamurra People is inimical to their rights and responsibilities for country.
The State does not address these contentions except to generally point to the various regulatory constraints on the mining claim, the history of mining in the area of the mining claim and the proposed scale of Mr Tully’s operations. However, in my view, having regard to Mr Wallace’s evidence and his discussion of Boonthamurra’s wishes as outlined below, there is merit in Boonthamurra’s contention.
In Western Australia v Thomas (at page 170), the Tribunal noted that the social, cultural and economic structures of Aboriginal societies are not static and a mining proposal could have either a negative or a positive effect on the development of these structures. It also noted that, where an act may be done, conditions could be imposed to minimise any adverse effect on, or to promote the development of, such structures and I have taken this into account in my discussion below of proposed conditions.
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
Boonthamurra says little about this criterion other than asserting that the grant of the mining claim will impact its freedom of access to do the matters listed. It does not say how but simply relies on its earlier contentions in relation to s 39(1)(a), which, as I have said, focus on the existence of rights rather than their enjoyment in the mining claim area.
While it is possible that the conduct of opal mining on the mining claim may impede Boonthamurra’s freedom of access to carry out rites, ceremonies or other activities of cultural significance, there is no evidence of such activities being undertaken in the mining claim area so I give this matter limited weight.
Effect on any area or site of particular significance to Boonthamurra on the land or waters concerned: s 39(1)(a)(v)
Boonthamurra asserts that the mining claim area is of particular significance to the Boonthamurra People in accordance with their traditions. It relies on Mr Wallace’s evidence regarding fireplaces and native wells in the vicinity of the mining claim. He says that his Old People told him there are old camp sites, artefacts, scar trees and fireplaces all along Monkey Coolah Creek. Based on mapping provided by the State, the creek is some distance from the area of the mining claim. Mr Tully submits the distance is 4.5 kilometres. He also says that the amended access for the mining claim will not cross the creek, which seems evident from the mapping.
However, similar to s 237(b), this criterion is not concerned with the significance of a native title party’s country generally. It is concerned with areas or sites located in the mining claim area which are of more than ordinary significance in accordance with traditions (see Bissett v Mineral Deposits at [83]–[84]). While I appreciate Mr Wallace’s concerns about heritage protection, the evidence does not support a finding regarding the existence of any area or site of particular significance in the mining claim area or in the access route. More evidence would be needed in relation to the identity, location and particular significance of any specific area or site.
Interests, proposals, opinions or wishes of Boonthamurra in relation to the management, use or control of land or waters affected by the mining claim: s 39(1)(b)
Mr Wallace gives evidence regarding the Boonthamurra People’s wishes for country, including the importance of rehabilitation. He also speaks of the importance of monitoring by Boonthamurra People before ground disturbance and says that the mining claim area should be cleared on foot due to the terrain.
This sentiment is echoed by Boonthamurra in its contentions. It argues that, as the Aboriginal party under the ACHA, it should be involved in the assessment and management of cultural heritage in the area of the mining claim. It also argues that the mining claim should not be granted as activities conducted under it are likely to cause harm to cultural heritage. There is no evidence of any such harm, but I understand clearly that Boonthamurra is concerned about the risk of damage to cultural heritage, particularly given Mr Tully’s approach to heritage assessment as I have discussed above. Further, while Mr Wallace acknowledges previous opal mining in the area, his concerns are heightened by, what he says, was a lack of cultural heritage clearances undertaken previously, coupled with his understanding that mining methods are now more “destructive”.
The State acknowledges Mr Wallace’s concerns and Boonthamurra’s wishes for county but relies upon Mr Tully’s acknowledgment of Boonthamurra’s role as the Aboriginal party under the ACHA, his knowledge of cultural heritage issues (which is discussed above) and the need for compliance with the Small Scale Mining Code. It says that the mining claim is not likely to interfere with any areas or sites of particular significance because of the various regulatory controls on the mining claim and Mr Tully’s categorisation of the mining claim area under the Duty of Care Guidelines. Those matters are more relevant for s 39(1)(a).
Additionally, Mr Tully has not shown himself to be especially concerned with Boonthamurra’s role as the Aboriginal party, being content to rely on his own assessment of heritage risk. He asserts that the mining claim has been subject to significant disturbance yet, as pointed out by Boonthamurra, and as shown on Mr Tully’s own mapping, only parts of the area appear to have been the subject of previous mining activity. Unless Mr Tully’s activities are confined to those previously disturbed areas, the Duty of Care Guidelines would seem to require an agreement for the balance. That issue does not appear to have been considered by Mr Tully.
This criterion is about Boonthamurra’s wishes and interests for the area and I accept its clear interest in cultural heritage protection and management, as well as rehabilitation of the country, as expressed by Mr Wallace.
Economic or other significance of the mining claim: s 39(1)(c)
Boonthamurra says the mining claim does not have economic significance to Australia or Queensland as it is not likely to lead to the creation of jobs or an influx of people to a rural area.
Mr Tully says the mining claim will create investment opportunities and contribute to the regional economy, which is in decline, and provides him with another income stream. In addition, Mr Tully highlights local business opportunities, including for local fuel and food businesses, as well as persons in the gem trade. The State echoes Mr Tully’s submissions on the economic stimulus which the industry provides, especially in times of drought.
There is no evidence regarding any of these matters or the potential economic benefit which may arise from the grant of the mining claim. Given the small scale of the proposed mining claim and Mr Tully’s contentions regarding its aim in supplementing his income from pastoral endeavours, I do not give much weight to this criterion. Overall, any economic benefit arising from the grant of the mining claim appears to be limited.
Public interest in the grant of the mining claim: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to consider whether there is any public interest in the grant of the mining claim.
This phrase confers a wide discretionary judgement. Mortimer CJ observed in Gomeroi at [221] that the scheme of the Native Title Act requires the Tribunal, “informed by the objects of the [Native Title Act] and the values set out in the Preamble”, to “form its own views on where the public interest lies both as a separate consideration and as part of a holistic exercise, reflecting on all the factors in s 39(1)”.
O’Bryan J, with whom the Chief Justice agreed, framed the analysis as requiring a consideration of both the public benefits and public detriments of the proposed act in order to assess whether there is any overall (or net) public interest: Gomeroi at [345].
The State says the grant is in the public interest and points to previous Tribunal decisions which acknowledged exploration as central to a healthy and feasible mining industry: Carpentaria Gold at [51]; Higgins at [30]-[32]; Purse at [55].
Mr Tully contends, amongst other things, that the grant of the mining claim will help reinvigorate a once vibrant regional mining community. He refers to the tradition of opal mining in the Restricted Area and his connection to these activities.
Mr Tully also says that the grant is in the public interest because it is small in size, will not affect the Boonthamurra People’s enjoyment of their native title rights and interests and there is no significant or tangible cultural heritage in the mining claim area. To the extent Mr Tully is here referring to the matters covered by s 39(1)(a), they are no doubt factors I have to weigh up but they do not necessarily mean there is a public benefit in the grant.
It is true that the Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry (Western Australia v Thomas at page 176). In Cheedy at [138], the Full Court of the Federal Court of Australia accepted that general proposition, while noting that it may be necessary for the Tribunal to consider the public interest in the particular project rather than by reference to the mining industry in general. I can accept that general proposition.
Conversely, Boonthamurra says there is public interest in not granting the mining claim in order to protect cultural heritage and Boonthamurra’s native title rights, and that this should be given more weight than the grant of the mining claim which will have limited, if any, significance to Australia or Queensland. It is difficult to accept this contention in the absence of any evidence regarding potential harm to cultural heritage or any effect on the enjoyment of native title rights and interests in the area, as discussed above. As I have said, I accept that Boonthamurra is concerned about the risk of harm to cultural heritage, but there is insufficient information before me to go so far as to say it is not in the public interest to grant the mining claim because of this perceived risk. That is particularly so in circumstances where the area has been mined in the past.
There is no evidence of any public detriment in the grant and, overall, I accept there is some limited public interest as part of the opal mining industry. However, I do not give this criterion any significant weight.
Should the mining claim be granted and, if so, should conditions be applied?
Based on the evidence and information provided by the parties, there is relatively little to go on to assist me in weighing the matters in s 39.
I can accept there is some degree of public interest in the grant and limited economic benefit, but the issue is whether that outweighs the impacts on the matters affecting Boonthamurra. There is no evidence of any effect on the enjoyment of native title rights and interests in the area of the mining claim or the access route and no evidence of any areas or sites of particular significance in those areas either. However, Boonthamurra, through Mr Wallace’s evidence, has clearly explained its wishes and concerns for the area, particularly regarding heritage protection measures, including as part of its social, cultural and economic structures.
I understand also that these matters are of heightened concern to Boonthamurra in circumstances where Mr Tully has taken it upon himself to conduct cultural heritage inspections. I have already explained my views on that approach.
In the absence of specific evidence regarding the effect of the grant on the matters in s 39(1)(a), I do not go so far as to say that the mining claim may not be granted, but Boonthamurra’s concerns and wishes, as articulated by Mr Wallace, carry significant weight in my analysis, particularly in light of the unorthodox approach to cultural heritage assessments taken by Mr Tully.
I am therefore of the view that the grant may be done but should be subject to conditions regarding cultural heritage protection in order to provide the required level of finality to the conclusion of this matter: Evans v Western Australia at page 214. I acknowledge that Mr Wallace also expressed a concern regarding rehabilitation but no party has addressed that issue in any meaningful way and the Small Scale Mining Code includes a range of regulatory requirements for rehabilitation, so I do not propose to impose any conditions in that respect.
In accordance with s 41(1) of the Native Title Act, conditions imposed by the Tribunal take effect as if the conditions were the terms of a contract among the parties. For the conduct of a cultural heritage survey, there are clear advantages to such terms being negotiated by the parties rather than formulated by the Tribunal, but here we are.
The Tribunal provided proposed draft conditions to the parties and afforded them an opportunity to comment. None of the parties opposed the proposed conditions, but each proposed relatively minor amendments. The parties also conferred on the terms of the conditions and settled several issues by agreement. The Tribunal then circulated a further version substantially in the form in Annexure A which reflected the matters agreed between the parties, addressed any issues in dispute and proposed a number of minor additional amendments for clarity. None of the parties had any further comments and I am satisfied that the conditions set out in Annexure A are appropriate. For completeness, I note that Annexure A includes two additional minor typographical or grammatical corrections to the draft last circulated to parties.
Determination
I determine that mining claim MC 300436 may be granted subject to the conditions set out in Annexure A.
Ms Nerida Cooley
Member
31 July 2025
ANNEXURE A
Aboriginal cultural heritage survey
The grantee party must not undertake mining activities over any part of the area of the mining claim without first causing a survey to be conducted over that part or the whole of the mining claim area in accordance with clauses 2 to 13.
The grantee party must give the native title party at least sixty (60) days’ written notice of his intention to conduct a survey. The notice must include:
(a)a topographical map showing the area or areas proposed to be surveyed (notified area);
(b)the proposed date/s and period during which the survey is to be conducted; and
(c)a description of the proposed mining activities.
Within thirty (30) days of receipt of the notice under clause 2, the native title party must, by notice in writing to the grantee party, nominate not more than three (3) Boonthamurra people (each a nominee) to participate in the survey on behalf of the native title party and provide contact details for each nominee.
If the native title party fails to nominate any nominee within the period specified in clause 3, then the grantee party may proceed to undertake mining activities in the notified area.
For each survey conducted, and upon receipt of a tax invoice, the grantee party must pay the native title party for the participation of each nominee for the period of a survey at the rates specified for inspectors under clause 5.6(a) of the native title protection conditions as adjusted from time to time.
For each survey, the grantee party must also obtain and provide the following at the grantee party’s cost:
(a)transportation within the Determination Area for each nominee for the period reasonably necessary for the survey;
(b)meals and suitable accommodation for each nominee during the survey period as reasonably necessary for the survey; and
(c)all necessary permits, authorities and notices required for the survey.
If the native title party does not conduct a survey over the notified area within the survey period in circumstances not due to a failure on the part of the grantee party, the grantee party may proceed to undertake mining activities.
The native title party must provide a written Survey Report to the grantee party within twenty (20) business days of the conclusion of the survey, identifying any Aboriginal cultural heritage sites and including recommendations for any necessary measures to ensure the protection of such sites. If the grantee party does not receive the Survey Report from the native title party within the time specified in this clause 8, not due to a failure on the part of the grantee party, the grantee party may undertake the mining activities within the area identified in the notified area.
Subject to clauses 8 and 11, the grantee party must undertake mining activities in accordance with the recommendations in the Survey Report.
The grantee party and the native title party must cooperate and use their best endeavours to facilitate arrangements for the survey and implementation of the recommendations in the Survey Report.
If the grantee party considers that any recommendation in the Survey Report is unreasonable, the grantee party must advise the native title party within seven (7) days and clause 15 then applies.
The grantee party must not disclose to any person any information given to it by the native title party regarding Aboriginal cultural heritage, except (and only then on a confidential basis):
(a)with the written consent of the native title party;
(b)to a bona fide prospective assignee of the mining claim;
(c)to an actual assignee of the mining claim;
(d)to employees, agents, contractors and consultants for the sole purpose of ensuring that no sites are interfered with and as far as the information relates only to the location of those sites; and
(e)as required by law.
No mining activities may to be undertaken by the grantee party on sites identified in a Survey Report except in accordance with the recommendations in the Survey Report or otherwise with the written consent of the native title party.
Dispute Resolution
Any party may give any other party notice of a dispute arising under these conditions.
In the event of a dispute, the disputing parties must meet (whether in person or by electronic means) within seven (7) days and use their best endeavours to resolve any issue in dispute.
If the disputing parties are unable to resolve the dispute within ten (10) days of a notice given under clause 11 or clause 14, then before commencing any proceedings, the parties must participate in mediation undertaken by the National Native Title Tribunal (if permitted) or another mediator agreed by the parties or, failing agreement, nominated by the President of the Queensland Law Society. For such mediation, the parties must equally share the costs of the mediator.
Assignment
The grantee party must not assign the mining claim unless and until the proposed assignee executes and delivers to the native title party a deed expressed to be for the benefit of the native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party.
For the purposes of clause 17, ‘grantee party’ includes any assignee.
The Government party must ensure that the mining claim includes a condition in terms of clauses 17 and 18.
General
The grantee party must take all reasonable steps to ensure compliance with these conditions by its employees, agents and contractors.
The grantee party must give the native title party written notice of the grant of the mining claim, including any conditions, within twenty-one (21) days of the date of grant.
Notices or other communications under these conditions may be sent to the address below, or such other address as advised by a party from time to time, by email or post.
Grantee party William Gerard Tully
C/- Qld Opal Miners Association Inc
PO Box 210, Quilpie QLD 4480
[email protected]0427 662 003
Native title party Boonthamurra Native Title Aboriginal Corporation RNTBC
C/- Queensland South Native Title Services
PO Box 10832, Adelaide Street, Brisbane QLD 4001
[email protected]07 3224 1200
Government party Manager
Native Title Services | Land & Surveying Services
25 Yeppoon Road, Parkhurst QLD 4702
[email protected]07 4936 0138
Definitions
In these conditions:
(a)Aboriginal cultural heritage, Aboriginal cultural heritage site or site means Aboriginal cultural heritage within the meaning of the Aboriginal Cultural Heritage Act 2003 (Qld);
(b)Determination Area means the area described in Schedule 1 to the Orders in Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600;
(c)Government party means the Minister administering the Mineral Resources Act;
(d)grantee party means William Gerard Tully;
(e)Mineral Resources Act means the Mineral Resources Act 1989 (Qld);
(f)mining activities means any activities undertaken under the mining claim;
(g)mining claim means mining claim MC 300436;
(h)native title party means Boonthamurra Native Title Aboriginal Corporation RNTBC;
(i)native title protection conditions means the native title protection conditions version 10 dated July 2023 made under the Mineral Resources Act or any replacement from time to time;
(j)nominee has the meaning given in clause 3;
(k)notified area has the meaning given in clause 2;
(l)survey means a visual inspection to identify any Aboriginal cultural heritage site; and
(m)survey period means the period specified in a notice given under clause 2 or such other period agreed by the native title party and the grantee party.
0
1
0