Xstrata Coal Queensland Pty Ltd v Russell Tatow - [2008] QLC 226

LAND COURT OF QUEENSLAND

CITATION:Xstrata Coal Queensland Pty Ltd & Ors v Russell Tatow & Ors [2008] QLC 0226
PARTIES:Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Limited
(applicants)
v
Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2
(respondents)
- and -
Chief Executive, Department of Natural Resources and Water
(statutory party)

FILE NO:ACH2008/0647
DIVISION:Land Court of Queensland – Cultural Heritage Division
PROCEEDING: An application pursuant to s.113 of the Aboriginal Cultural Heritage Act 2003 seeking a recommendation from the Land Court that the draft Cultural Heritage Management Plan (“CHMP”) for the proposed Wandoan Coal Mine be approved
DELIVERED ON:                  17 December 2008 (Ex Tempore)
DELIVERED AT:                   Brisbane
HEARD AT:Brisbane
MEMBER:Mr PA Smith
ORDER:1. Attachment “A”, save for its inclusion as an attachment to this decision to be provided to the Minister for Natural Resources and Water and the parties, otherwise be sealed, marked confidential and not opened except under order of the Court.
2.    It is recommended to the Minister for Natural Resources and Water that the draft Cultural Heritage Management Plan (“CHMP”) for the proposed Wandoan Coal Mine as set out in Attachment “A” be approved.
3.   No order as to costs.

CATCHWORDS: Cultural Heritage Management Plan – all but one indigenous person in agreement with draft before Court – meaning of Aboriginal party – Court recommendation to include confidentiality provision

APPEARANCES: Mr B Zillman, Allens Arthur Robinson Solicitors, on behalf of the applicant
Ms A English, Bottoms English Solicitors, on behalf of the respondents
Mr M Peate on behalf of the statutory party, Department of Natural Resources and Water

Background

The Land Court has before it an application under the Aboriginal Cultural Heritage Act 2003 (the ACHA). This application is made under s.113 of the ACHA requesting that the Land Court make a recommendation to the Honourable the Minister under s.117(2) of the ACHA that the Minister approve the Cultural Heritage Management Plan (CHMP) for the Wandoan Coal Mine. When the Land Court receives such an application under the ACHA a number of procedural steps have to follow. This includes contacting all of the Aboriginal parties and allowing those parties an opportunity to make submissions to the court as to the contents of the draft CHMP. The assistance of the Chief Executive in this regard is also part of the legislation.
As matters have unfolded in the current case, it can be said that the bulk of indigenous persons impacted by the CHMP have reached agreement with the draft CHMP, which is attached and marked attachment “A”. Indeed when this matter was before me on 23 October 2008 the indication was given to the court that formal agreement had been reached between the parties and it was simply a matter of having that agreement executed after which time a notice of discontinuance would be filed. Unfortunately what has happened is that one of the indigenous persons now refuses to sign the CHMP. Ms English for the respondent has informed the court today that she has instructions from eight of the nine indigenous persons to agree to the orders sought by the applicant which are in effect that the Land Court should recommend to the Honourable the Minister that the draft CHMP be approved.

Meaning of ‘Aboriginal Party’

Under the ACHA, the applicant is required to have an “approved” cultural heritage management plan for the Wandoan Coal Mine as there is a requirement for an environmental impact statement in respect of the project.
As there is an “endorsed party” (the respondents) for the cultural heritage management plan in this case, the plan can be approved in one of two ways:
(a) If the plan is agreed between the respondents and the applicant (the “sponsor” using the terminology of the ACHA), it could be submitted to the chief executive who must approve it in those circumstances; or
(b) If the plan is not agreed, the matter must be referred to the Land Court, and following a recommendation from the Land Court the Minister may decide to approve the plan.
The applicant has negotiated a CHMP agreement which has been agreed to by eight of the nine applicants who comprise the respondents. Seven of those nine people have executed the CHMP agreement. Mr Troy Noble has not yet executed the CHMP agreement, but he is agreeable to its terms and will execute the CHMP agreement shortly. The remaining person who comprises the respondent, Ms Madonna Barnes, has refused to execute the CHMP agreement.
Therefore, all individual applicants who comprise the endorsed party have not agreed, nor will sign, the CHMP agreement.
It is clear from the definition of “endorsed party” in the ACHA that only an “Aboriginal party” can be an endorsed party. The respondents are an endorsed party because of their status as an Aboriginal party, and because they responded to the CHMP notice issued by the applicants.
The ACHA defines who an “Aboriginal party” is for the purposes of the ACHA. Under s.35(1) of the ACHA, a “native title party” for an area is an Aboriginal party for the area. Under s.34(1), a native title party for an area is (so far as is relevant in this matter) a “registered native title claimant” for the area.
The ACHA definition of “registered native title claimant” references and adopts the definition of the term in the Native Title Act 1993 (Cth) (“NTA”). Under the NTA, a registered native title claimant is defined as “a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to land or waters”. Under s.61(2)(c) of the NTA, the persons are jointly the applicant.
Therefore, the “Aboriginal party” for the cultural heritage management plan is all of the people named as applicants on the Iman People #2 registered native title claim. There are nine people listed as applicants on the Iman People #2 registered native title claim. These are Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes. As all of these people comprise the “registered native title claimant”, all of these people collectively are the “Aboriginal party”.
There is a substantial body of case law (in the native title context) which has considered the meaning of the term “registered native title claimant” and which clearly establishes the legal precedent that:
(a)    regardless of the number of applicants listed on a native title claim, there is only one “registered native title claimant” for a native title claim which is constituted by all of the individuals named as the registered native title claimant acting jointly;
(b)   each individual claimant who collectively constitutes the registered native title claimant is not a separate native title party in their own right, and is not at liberty to act individually; and
(c)    individual claimants are merely representatives of the claimant group and have no personal interest other than members of the claimant group. For this reason their interests do not differ from each other or from the claimant group and they do not have a right to separate representation or to take a position contrary to that taken by the other named claimants.[1]
[1]     Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people, NNTT WF99/5, [2000] NNTTA 75 Hon C J Sumner, 24 February 2000;
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001 at [19] – [20];
Johnson (on behalf of the Barkandji (Paakantyi) People) v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 per Stone J at [8];
Gary Dimer and Others on behalf of the Widji People, Elizabeth Sambo, Dennis Sambo, Dorothy Dimer, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Majorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes [2003] NNTTA 117 Hon C J Sumner, 18 November 2003 at [19] and [29];
Mt Gingee Munjii Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Franham, on behalf of the Gunai/Kurnai People [2003] NNTTA 125 Hon C J Sumner, 22 December 2003, at [22] – [26] and [36];
Linda Champion & Ors on behalf of the Central West Goldields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velicknoic on behalf of the Widji People/Siberia Mining Corporation Ltd/Western Australia [2004] NNTTA 26 Hon C J Sumner, 13 April 2004 at [14], [17] and [18];
Norman Brown & Ors (Barada Barna Kabalbara and Yetimarla People #4 / Queensland / Midas Resources Limited, [2005] NNTTA 3 Hon J Sosso, 4 February 2005 at [23].
Although the case law cited in paragraph [11] is in the native title context, as the ACHA adopts the definition of “registered native title claimant” from the NTA, in my view the same interpretation applies for the ACHA such that:
(a) there is only a single “Aboriginal party” which is made up of all individual registered native title claimants acting collectively; and
(b) in the circumstances of this case, individual respondents are not able to act individually – the persons who jointly comprise the registered native title claimant (and therefore the Aboriginal party) as a whole must act collectively.
By refusing to sign the CHMP agreement, Ms Madonna Barnes is acting independently of the rest of the individual respondents who constitute the registered native title claimant for the Iman People #2 native title claim. Ms Barnes is not an “Aboriginal party” in her own right and does not have standing to refuse to execute the CHMP agreement, in circumstances where the CHMP agreement has been agreed to by the remainder of the respondents.

Confidentiality

It is now sought by Mr Zillman, and agreed to by Ms English (insofar as her instructions allow) and Mr Peate, that a confidentiality clause in similar terms to the orders I made in the matter of Aird[2] should also be incorporated into the orders that I make in this matter. For the same reasons that I mentioned in Aird,[3] I believe it is important that indigenous persons when they enter into draft CHMPs with large corporations or indeed any developer or relevant body should have confidence that when they seek by the terms of their agreement to have matters kept confidential as between themselves and the proponent, that their wishes in that regard are respected by the court. Accordingly, I also consider it appropriate in the circumstances of this case to make the confidentiality orders as now sought by Mr Zillman for the applicants.
[2] State of Queensland v Aird & Ors [2008] QLC 0208.
[3] At [14].
In the circumstances of this matter therefore I formally recommend to the Honourable the Minister for Natural Resources and Water that the draft CHMP annexed hereto marked “A” be approved by the Minister.

Orders

1.Attachment “A”, save for its inclusion as an attachment to this decision to be provided to the Minister for Natural Resources and Water and the parties, otherwise be sealed, marked confidential and not opened except under order of the Court.
2.It is recommended to the Minister for Natural Resources and Water that the draft Cultural Heritage Management Plan (“CHMP”) for the proposed Wandoan Coal Mine as set out in Attachment “A” be approved.
3.No order as to costs.

PA SMITH
MEMBER OF THE LAND COURT