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Editors --- "Bradley Foster/Copper Strike Ltd v Queensland [2006] NNTTA 61 - Case Summary" [2006] AUIndigLawRpr 48; (2006) 10(3) Australian Indigenous Law Reporter 49

BRADLEY FOSTER & ORS (WAANYI PEOPLES)/ COPPER STRIKE LTD v QUEENSLAND

National Native Title Tribunal 19 May 2006 [2006] NNTT 61

Native title — power of National Native Title Tribunal to make future act determinations — whether native title party consents determination

Court and Tribunals Decisions

Facts:

The State of Queensland (‘the Government Party’) gave notice under section 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant exploration permits to Copper Strike Ltd in respect of land within the boundaries of the Waanyi Peoples’ (‘the Native Title Party’) registered native title determination application. The Government Party also asserted that the grant of these exploration permits would attract the expedited procedure under section 29(7) of the NTA.

The Native Title Party lodged expedited procedure objection applications with the Tribunal pursuant to section 32(3) of the NTA. The Government Party subsequently withdrew its assertion that the proposed future acts would attract the expedited procedure.

The Government Party and the Native Title Party commenced negotiations pursuant to section 31 of the NTA. Two ‘in principle’ agreements were reached but were unable to be finalised. Of the 28 persons named as applicants, three had passed away, three were unable to be located and did not sign the agreements, and a further person refused to sign the agreements.

The Native Title Party made an application pursuant to section 35 for a future act determination under section 38 of the NTA.

Held, determining that the acts may be done subject to compliance with conditions:

1. The Tribunal has the power to make a future act determination pursuant to section 38 of the NTA with the consent of the negotiation parties without conducting a detailed inquiry, provided that it is appropriate to do so in the circumstances: [27], Minister for Mines (Western Australia)/ Evans/Townson Holdings NL [1998] NNTTA 15 (11 December 1998) followed; Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361 followed; Moore v Mungeranie [2005] NNTTA 53; (2005) 193 FLR 62 followed.

2. The following matters are of central importance when determining if the native title party is actually ‘consenting’ to the determination, namely whether:

(a) the agreement has been endorsed by the wider claim group either specifically or it is of a type that the claim group has previously given its general consent to; and
(b) the persons comprising the applicant who have not executed the agreement are either not able to be located, have passed away, are suffering from a medical condition which prevents or impedes them from executing an agreement or are refusing to execute the agreement for reasons not related to the terms of the agreement or the process of the claim group that was adopted in endorsing the agreement: [37].

3. The Act requires a high duty of care, akin to a fiduciary duty, from persons carrying out the responsibilities of an applicant. Authorisation by such persons requires diligence and good faith as well as care and responsibility. It requires such persons to be the voice of the claim group and does not entail empowering people to deviate from the traditional laws and customs of their claim group and advance their own interests: [39], Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 220 ALR 431 referred to.

4 The wider claim group has previously endorsed agreements in identical terms to the ‘in principle’ agreements negotiated. None of the persons collectively comprising the applicant have refused to sign the proposed agreements on relevant grounds. The failure of the other persons comprising the applicant to execute the agreements is due to the failure of the representative body to locate them, despite its best endeavours: [40].

5 The determination that the future acts be done is subject to the conditions agreed on by the parties during negotiations: [44]–[45].