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  4. Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim - [2022] QLC 15

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Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim[2022] QLC 15

Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim[2022] QLC 15

LAND COURT OF QUEENSLAND

CITATION:

Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim [2022] QLC 15

PARTIES:

Pacgold Limited ACN 636 421 782 

(applicant)

v

Michael Ross, Silva Blanco, James Creek, Jonathan Korkaktain, Reginald Williams, Wayne Butcher, Clarry Flinders, Philip Port, HS (dec) (as the Registered Native Title Claimant in Cape York United Number 1 Claim v State of QLD QUD673/2014) 

(respondents)

FILE NO:

MRA054-22

PROCEEDING:

Application to determine dispute regarding Native Title Protection Conditions

DELIVERED ON:

21 October 2022

DELIVERED AT:

Brisbane

HEARD ON:

23 September 2022

HEARD AT:

Brisbane

MEMBER:

JR McNamara

DECISION:

  1. The respondent is not the Native Title Party for EPM 15359. The jurisdiction of the Land Court has not been invoked.
  1. Recommendation 1 does not form part of a Recommendations Dispute, as contemplated by the NTPCs.
  1. Recommendation 12 is unreasonable.

CATCHWORDS:

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – CULTURAL HERITAGE – NATIVE TITLE PROTECTION CONDITIONS – where the applicant held mineral exploration permits (EPMs) subject to Native Title Protection Conditions (NTPCs) – where the respondent issued a Field Inspection Report pursuant to the NTPCs – whether certain recommendations within the Field Inspection Report were unreasonable – where the test to be applied is whether the recommendation is reasonable taking into account the factual and legislative circumstances

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – whether a Recommendation Dispute under the NTPCs is an administrative or civil proceeding – where the Land Court’s jurisdiction is limited to determining the reasonableness of a recommendation – whether clause 6.6 and 6.7 of the NTPCs were impermissible delegations – whether the respondent was the d Native Title Party for EPM 15359

Aboriginal Cultural Heritage Act 2003, s 23

Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 68

Mineral and Energy Resources (Common Provisions) Act 2014 s 52

Mineral Resources Act 1989 s 141AA, s 141C, s 363

Native Title Act 1993 (Cth) s 30, s 66B, s 237

Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy [2019] QLC 10, distinguished

McBain v Clifton Shire Council [1996] 2 Qd R 493, cited

Medical Board of Australia v Kemp (2018) 56 VR 51, cited

Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (2 March 2018), cited

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 397, cited

APPEARANCES:

M McKechnie (instructed by Allens) for Pacgold

D Yarrow (instructed by Cape York Land Council) for the respondent

  1. [1]
    The applicant, Pacgold Limited (Pacgold), is the holder of mineral exploration permits EPM15359 and EPM26266 (EPMs). Both EPMs are within the area of the Cape York United Number 1 native title claim (QUD673/2014) (the respondent). The Native Title Protection Conditions (NTPCs)[1] were conditions of grant.
  1. [2]
    In accordance with the NTPCs, the respondent issued an Inspection Report containing a number of recommendations. Most of the recommendations were agreed or resolved with Pacgold. Two remain disputed. Pacgold brought these disputed recommendations (Recommendations Dispute) to the Land Court to be heard and determined.[2]
  1. [3]
    Pacgold says that one of the recommendations is not within the scope of a Recommendations Dispute,[3] but if it is within the scope then it is unreasonable. The other they say is simply unreasonable.  They seek a declaration and order to proceed with the program of works notified in the 2021 Exploration Activity Notice (EAN).
  1. [4]
    The respondent challenges the jurisdiction of the Land Court to hear and determine the dispute on three bases, but say if the Court finds it has jurisdiction: the standard of reasonableness the Court should apply is that applicable in judicial review; that a recommendation in an Inspection Report to require a Cultural Heritage Management Agreement (CHMA) be entered is legally reasonable; and that the other recommendation in dispute is neither arbitrary, nor lacking in intelligible justification.[4]
  1. [5]
    At the hearing review on 5 August 2022 I was presented with alternative draft orders from the parties as to how the matter should proceed.[5] Pacgold urged that the question of jurisdiction and the merits be heard at the same hearing. The respondent   argued that the issue of jurisdiction should be decided, and if necessary, the merits be determined at a subsequent hearing. For the reasons articulated at the review I decided that both the question of jurisdiction and the merits ought to be heard together.[6]

Context

  1. [6]
    In 2003, s 141AA was inserted into the Mineral Resources Act 1989 (MRA). Section 141AA is described as “additional conditions of exploration permit relating to native title”:

(1) Conditions determined for an exploration permit by the Minister under section 141(1)(j) may include native title protection conditions for the permit.

(2) Subsection (1) does not limit section 141(1)(j).

(3) In this section— native title protection conditions, for an exploration permit, means conditions that—

(a) are about ways of minimising the impact of the permit on native title in relation to the land affected by the permit, including ways of accessing the land and ways anything authorised under the permit may be done; and

(b) are identified in the permit as native title protection conditions for the permit.

  1. [7]
    The NTPCs are conditions to satisfy requirements of the expedited procedure in s 237 of the Native Title Act 1993 (Cth) (NTA). Where the grant of an exploration tenement attracts the expedited procedure, the grant can be made without the normal negotiations[7] required by s 31 of the NTA. 
  1. [8]
    Section 363(2)(ea) of the MRA was also introduced in 2003. Section 363 provides that:

363 Substantive jurisdiction

(1) The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining, to any activity under section 386V, or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.

(2) Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to—

…

(ea) any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions—

…

(ii) under section 141AA, are included in the conditions determined for an exploration permit; or

…

  1. [9]
    The objectives of the Queensland NTPCs scheme would appear to be:
  • to condition (through the application of the NTPCs) mineral exploration in a way that renders unlikely the undertaking of activities that might cause interference directly to community or social activities, to areas or sites of particular significance to the holders of native title, or cause major disturbance to land or waters; and
  • to have disputes and other matters arising in relation to the NTPCs heard and determined in the Land Court.

Jurisdiction

  1. [10]
    The Land Court is a court of record. It has limited, statutory jurisdiction which is given to it under the Land Court Act 2000 (LCA) or another Act.
  1. [11]
    The Court is not being asked to determine the imposition of the NTPCs,[8] rather it has been asked to decide a Recommendations Dispute which has arisen through their application.
  1. [12]
    The respondent in written submissions describe in some detail the procedural aspects of the NTPCs that lead to a Recommendations Dispute and referral of the dispute to the Land Court. It is necessary to set out the provisions of clauses 6.5, 6.6 and 6.7 of the NTPCs:

6.5  If:

  1. (a)
    the Explorer receives an Inspection Report from the Notified Native Title Parties within the time specified in the Field Inspection Notice; and
  1. (b)
    there are recommendations contained in the Inspection Report; and
  1. (c)
    the Explorer does not intend to comply with all the recommendations contained in the Inspection Report on the basis of the reasonableness of the recommendations (“Recommendations Dispute”);

then the Explorer must:

  1. (d)
    within 5 Business Days after the Receipt Date of the Inspection Report give a written notice to the Notified Native Title Parties (“Recommendations Objection Notice”) providing full details of the Recommendations Dispute; and
  1. (e)
    take reasonable steps within 10 Business Days after the Receipt Date of the Recommendations Objection Notice to attempt to resolve the Recommendations Dispute with the Notified Native Title Parties.

6.6If the Explorer is unable to resolve a Recommendations Dispute in accordance with clause 6.5, not due to a failure on the part of the Explorer, the Explorer must refer the Recommendations Dispute to the Land Court of Queensland to decide the Recommendations Dispute.

6.7 If the Land Court of Queensland makes a decision in relation to the Recommendations Dispute following referral to the Land Court of Queensland under clause 6.6, the Explorer may undertake the Exploration Activities in accordance with the Program of Works as modified by the decision of the Land Court of Queensland in relation to the Recommendations Dispute.

  1. [13]
    The respondent says that “it is in the shadow of the unsatisfactory definition of Recommendation Dispute”[9] under the NTPCs that their jurisdictional propositions are made. They frame the jurisdictional issue this way:
  • The primary jurisdictional dispute is whether clauses 6.6 and 6.7 of the NTPCs effectively give jurisdiction to the Land Court. The respondent argues that the s 363 jurisdiction of the Land Court is civil but the relief sought is administrative in character;
  • The secondary jurisdictional dispute concerns the validity of clauses 6.6 and 6.7 . The respondent says clauses 6.6 and 6.7 are not authorised by ss 141(1)(j) and 141AA as they purport to delegate a decision concerning the conditions of an exploration permit to a person other than the decision maker; and
  • Finally, the respondent says that, in respect of EPM 15359, they are not the ‘Native Title Party’ (for a Native Title claim) for the purposes of the NTPC’s.
  1. [14]
    Pacgold does not characterise the Court’s task as an administrative decision, but say that if it is, then there is a specific conferral of jurisdiction pursuant to s 363(2)(ea) of the MRA.
  1. [15]
    I will address the issues as framed by the respondent.

The primary jurisdictional dispute

Subject matter – administrative or civil?

  1. [16]
    The respondent says that a Land Court decision about a Recommendations Dispute under clause 6.6 is properly characterised as administrative in character, (but they say the Land Court’s jurisdiction is civil).
  1. [17]
    Firstly, they say “the task of the Land Court” under clause 6.7 is to modify the Program of Works set out in the Explorer’s Activity Notice.
  1. [18]
    Pacgold says that this matter: does not involve the amendment of any of the conditions of the exploration tenements; does not involve the review of the conditions of grant; is not a review of any decision of the Minister; and is not the review of a decision that is administrative in nature.[10]
  1. [19]
    Pacgold says that on its proper construction clause 6.7 says the explorer may undertake the exploration activities in accordance with the Program of Works “as modified by the decision of the [Land Court]”. How the Program of Works is modified to give effect to the decision of the Land Court is a matter for the Minister.
  1. [20]
    The respondent notes clause 6.5(c) which defines a Recommendations Dispute as arising when the explorer does not intend to comply with all the recommendations contained in the Inspection Report on the basis of reasonableness. They argue that this suggests the subject is not a private law matter, as enforcement is a public law matter for the Minister or relevant department.
  1. [21]
    To this, Pacgold says that there is no issue before the Court as to whether or not either party has complied with the NTPCs or that they need to be enforced in this case.[11]  They say that the narrow interpretation the respondent would give to s 363(2)(ea) would render it meaningless, as the Native Title Party could never make a claim in a “private law sense” against the explorer regarding the NTPCs.
  1. [22]
    Secondly, the respondent says a clause 6.6 Land Court decision does not resolve a controversy in relation to pre-existing rights or obligations, rather “…it involves the creation of a new right being relief from the prohibitions under clause 2.1(a)-(c) of the NTPC’s by operation of clause 2.1(d) in respect of a particular Program of Works” – which they say is not judicial.[12]  They argue that because exploration permit conditions are amenable to amendment on application by the permit holder pursuant to s 141C of the MRA, a decision of the Land Court is subject to later modification which suggests that its decision is administrative, not of a judicial character.
  1. [23]
    Pacgold says there is no new right created. The EPMs have been granted in accordance with the expedited procedure under the NTA and renewed in accordance with statute, and the Minister has imposed the NTPCs as conditions of grant.[13] In oral submissions they said that the Land Court in deciding a Recommendations Dispute: will not change the fundamental aspects of the EPM; will not require the conditions of the EPM to be amended; will not require any new EPM to be issued; and it will simply stand as a judicial decision that resolves the dispute.[14]
  1. [24]
    Thirdly, and in the alternative, the respondent submits the jurisdiction conferred by clause 6.5 is in the nature of judicial review (i.e., reviewing the explorer’s conclusion that a recommendation lacks the requisite reasonableness) and the Land Court lacks jurisdiction to consider public law proceedings in respect of the NTPCs.[15]
  1. [25]
    Pacgold says this argument has no basis as the jurisdiction is conferred by ss 363(1) and 363(2)(ea) of the MRA rather than any provision of the NTPCs.[16]

Jurisdiction – administrative or civil?

  1. [26]
    The respondent seeks to rely on the decision of Kingham P in Goldhounds v Department of Natural Resources, Mines and Energy (Goldhounds),[17] to say that s 363(1) of the MRA grants jurisdiction to the Land Court to hear and determine actions, suits and proceedings which are civil in nature, but the decision Pacgold seeks is administrative. They also refer to Niall JA who observed in Medical Board of Australia v Kemp that the words ‘suit’, ‘action’ and ‘proceeding’ used together are apt to describe the engagement of some form or judicial process.[18] They argue that a Recommendations Dispute under the NTPCs and the jurisdiction conferred by clauses 6.5 and 6.6 are not “actions, suits and proceedings” within the meaning of s 363 of the MRA.
  1. [27]
    Pacgold says that the context of the Amended Originating Application is “entirely different from that considered in the Goldhounds case cited”.[19]
  1. [28]
    Goldhounds involved a dispute between an exploration permit holder and the government administering authority and concerned a case where Pacgold was seeking to rely on s 363(1) of the MRA only as granting some form of general jurisdiction to the Land Court. Pacgold submits that it was not a case that had to decide whether a specific and targeted provision of s 363(2) applied, as is the case here.  In submissions Pacgold says:

“The factual distinction (as it relates to jurisdiction) was specifically highlighted by the Land Court in that case where it stated that section 363 was concerned with granting jurisdiction to hear ‘disputes between persons asserting competing rights, whether as applicant for or holders of mining tenements or as persons holding interests in land that may be or have been affected by mining activities’ (as opposed, in that case, to a jurisdiction to hear dispute between a tenement holder and the government administering body).”[20]

  1. [29]
    Pacgold says that it is not a decision of a government decision maker that is sought to be reviewed or challenged, but rather the recommendations of a native title party. They say there is no application requiring an exercise of jurisdiction in the nature of administrative review before the Court in this matter.
  1. [30]
    As to s 363(2)(ea) of the MRA, the respondent says that the reference to the NTPCs does not alter the limitation of s 363 to civil proceedings – and that the preliminary words of the section (“hear and determine actions, suits and proceedings”) qualify the dispute to which subparagraph (ea) applies.
  1. [31]
    Pacgold in submissions, in submissions in reply and in oral submissions[21]  repeat that the Land Court has jurisdiction given to it by statute.  They point to the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCPA) as another example of statutory Land Court jurisdiction to determine disputes between resource authority holders and the owner or occupier of land, which extends to the imposition of conditions appropriate for the exercise of access rights, and to decide the terms of a conduct and compensation agreement.
  1. [32]
    The respondent submits that the jurisdiction of the Court conferred by the MERCPA is not comparable, pointing to s 52 of that Act “and its clear explication of the court’s jurisdiction to make a determination in respect of a dispute, and the criteria that have to be considered”.[22]  In that regard it is agreed that the NTPCs do not offer the Court “a set of discrete criteria to apply”[23] in deciding a Recommendations Dispute.

Conclusions – primary jurisdictional dispute

  1. [33]
    The subject matter concerns the recommendations identified in the Recommendations Dispute. This is not a compliance or enforcement matter. The Court’s task is not to decide whether the decision to recommend certain measures was arrived at reasonably. It is not in the nature of administrative review. It is not a “public law matter” as that term is commonly understood.
  1. [34]
    The Land Court’s decision concerns whether or not the disputed recommendations are reasonable. Should the Land Court decide that a disputed recommendation is reasonable there might (or might not) be a consequential modification to the Program of Works. If the Land Court were to decide that a disputed recommendation was not reasonable there might be no modification at all to the Program of Works. Regardless, the Program of Works is not the relevant subject matter.
  1. [35]
    The construction of clause 6.7 advanced by Pacgold is in my view correct. For reasons which appear later in this decision, I do not accept the respondent’s submission that a ‘clause 6.6 decision’ involves the creation of a new right and therefore do not accept the conclusion that s 141C of the MRA would render such a decision necessarily administrative in character. I also do not accept the characterisation of the Court’s function as a review of the explorer’s conclusion as to reasonableness. The Court is deciding for itself whether a dispute is within scope, and if so whether the recommendation is reasonable. It is not a review of the explorer’s conduct or consideration.
  1. [36]
    The inescapable conclusion is that s 363(2)(ea) of the MRA is a conferral of specific jurisdiction to the Land Court. The language is clear. The subject matter is exactly what was contemplated by the provision. Criteria for determining reasonableness might be helpful, but its absence is not a basis to conclude that jurisdiction is questionable.

The secondary jurisdictional dispute

Finality/impermissible delegations and the validity of clauses 6.6 and 6.7

  1. [37]
    The respondent says these clauses are impermissible delegations, as opposed to, for example, this Court’s jurisdiction to approve Cultural Heritage Management Plans under the MRA.[24] They submit that a condition which purports to delegate a decision on an essential matter to another is impermissible, relying on McBain v Clifton Shire Council[25] and Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council.[26]
  1. [38]
    They say that nothing in s 141A of the MRA authorises a condition about where exploration activities can be done and on what terms, “particularly not the Land Court”.[27]
  1. [39]
    Pacgold submits that clauses 6.6 and 6.7 do not delegate any component of the Minister’s decision to grant or renew the EPMs.[28]  They say that Pacgold does not require a separate additional approval for any Program of Works notified to a Native Title Party under an EAN in accordance with the conditions of the tenement. Accordingly, they say a clause 6.7 decision of the Land Court that might lead to a modified Program of Works cannot be a deferral of an essential mater or delegation of a decision as contended by the respondent.
  1. [40]
    The respondent links clauses 6.6 and 6.7 to the core purpose of the NTPCs which is the prohibition on the explorer to carry out exploration activities which are likely to have the effects referred to in s 237 of the NTA. In that regard the respondent dissects clause 2.1. Its full text is as follows:

2.1 The Explorer must not carry out Exploration Activities in the area ofthe Exploration Tenement:

  1. (a)
    if the Exploration Activities are likely to interfere directly with the carrying on of the community or social activities of the persons who are holders (disregarding any trust created under Division 6 of Part 2 of the NTA) of Native Title in relation to the land or waters concerned; and
  1. (b)
    if the Exploration Activities are likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2 of the NTA) of the Native Title in relation to the land or waters concerned; and
  1. (c)
    if the Exploration Activities are likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned; and
  1. (d)
    except in accordance with these Conditions.
  1. [41]
    The respondent argues that subclauses 2.1(a)-(c) of the NTPCs are to be read disjunctively, that is, each prohibiting exploration activities which would cause any of the interference or disturbance specified in those paragraphs.[29]  Read that way, the respondent says subclause 2.1(d) is “a safe harbour clause” which would allow interference or disturbance contrary to subclauses (a)-(c) if done in accordance with the NTPCs. 
  1. [42]
    Pacgold submitted in oral reply that subclauses 2.1(a)-(c) apply regardless of the circumstances, and that 2.1(d) should not be read disjunctively. They say that this is made clear by the use of the word “and” at the end of subclause 2.1(c) – if the clauses had been intended to be read disjunctively, different language would have been used, such as “notwithstanding the above”.[30]
  1. [43]
    The respondent submits that in the context of clause 2.1, a decision concerning a recommendations dispute is an administrative decision to permit an explorer to decline to follow a recommendation, in the absence of an independent obligation in the NTPCs to do so – and no express provision of s 141AA[31] of the MRA authorises the Minister to confer a decision-making function on the Land Court under the NTPCs.
  1. [44]
    The respondent says clauses 6.6 and 6.7 are not properly characterised as ways of minimising the impact of the permit on native title referred to in s 141AA.

Conclusions – secondary jurisdiction dispute

  1. [45]
    I have already said that should the Court decide that a disputed recommendation is reasonable there might (or might not) be a consequential modification to the Program of Works. Any such modification is not the work of the Land Court and cannot therefore be a deferral of an essential matter or delegation of a decision as contended.
  1. [46]
    The submission of the respondent concerning the disjunctive nature of clause 2.1 is not correct. In my view, clause 2.1 should be read in a purposive way. It should be given meaning according to the purpose or objective that the legislature, in enabling the imposition of the NTPCs, was trying to achieve. In my view, subclause 2.1(d) means that there may be a likelihood of the kind of interference or disturbance identified in subclauses 2.1(a)-(c) but for the NTPCs. Subclause 2.1(d) is not a ‘safe harbour’ clause or a ‘contract out of likelihood of interference’ clause. That is, the prohibition is not displaced by subclause 2.1(d). Authorised exploration activity is always subject to subclauses 2.1(a)-(c). The grammar, the use of “and” and the absence of language or terms to suggest otherwise supports this conclusion.
  1. [47]
    I am not satisfied that the primary and secondary jurisdiction arguments made by the respondent can succeed.

EPM 15359 and the Native Title Party

  1. [48]
    At the relevant time,[32] EPM15359 was subject to two registered native title determination applications, the Olkola Claim and the Olkola and Thaypan Claim. Both were discontinued: the Olkola Claim on 18 March 2014, and the Olkola and Thaypan Claim on 28 August 2013.  The respondent says the “present area” of EPM15359 was only subject to the Olkola Claim.  The respondent is the Registered Native Title Claimant in the Cape York United Number 1 Claim which wholly overlaps both EPM15359 and EPM26266.
  1. [49]
    The respondent says that the NTPCs, pursuant to clause 14 which corresponds with s 30(4) of the NTA, contemplate a change to the identity of a Native Title Party, but that the NTPCs do not have an equivalent to s 30(2) of the NTA, which addresses when a claimant ceases to be a Native Title Party for the purposes of the NTA.
  1. [50]
    Clause 14 is as follows:

14. Change of Native Title PartiesIf a person becomes a Registered Native Title Claimant because the person replaces a Native Title Party as a Registered Native Title Claimant for a Native Title Claim, that person also replaces that Native Title Party as a Native Title Party under these Conditions.

  1. [51]
    Section 30(2) of the NTA says that a Registered Native Title Claimant ceases to be a Native Title Party if the Registered Native Title Claimant ceases to be a Registered Native Title Claimant.
  1. [52]
    The respondent submits that clause 14 operates where one or more members of Pacgold in a native title determination application are replaced under s 66B of the NTA so the native title applicant for the same determination application is constituted by different members. However, they submit this does not extend to circumstances where an old native title determination application has been discontinued and a new application covers all or part of the old application area. Pacgold accepts that clause 14 contemplates a s 66B scenario.[33]
  1. [53]
    Based on that reasoning, the respondent says that the then claimant for the Olkola Claim remains the Native Title Party for EPM15359; and, as there is no evidence the 29 December 2021 EAN was served on the Olkola claimant, the Land Court’s jurisdiction has not been properly invoked.
  1. [54]
    In submissions, Pacgold says that a conclusion based on the respondent’s submission would mean that Pacgold should not be dealing with the respondent (the current Registered Native Title Claimant for the area) but instead should be dealing with the claimant of a historic, discontinued, claim. This, they contend, is a somewhat absurd consequence. They say on its plain text there is a temporal aspect to the definitions which contemplates notice being given to the Native Title Party for each Native Title Claim at the point in time that the notice is given.[34]
  1. [55]
    Pacgold also state that the respondent has represented to Pacgold and to the Department of Resources that they are the Native Title Party, and the Notified Native Title Party, for EPM15359.[35] Further, Mr Michael Ross was a member of the applicant for the discontinued Olkola People claim and he is a member of the Cape York United Number 1 claimant, with the address for service for both being the Cape York Land Council Aboriginal Corporation.
  1. [56]
    The respondent says in the NTPCs definition of “Native Title Claim”,[36] the bracketed definitional text “[registered claims at 4 months after the notification day]” defines Native Title Claim at a point in time.  The definition of “Native Title Parties” is seemingly not so limited - being a registered Native Title Claimant or Registered Native Title Body Corporate.  However, the definition of Notified Native Title Parties refers back to “each Native Title Party for each Native Title Claim”, that is, a Registered Native Title Claimant at 4 months after the notification day, not simply a registered native title claimant.
  1. [57]
    The respondent acknowledges that where there are available constructions absurdity should be avoided. They say however that the definitions in the NTPCs do not provide that constructive choice.

Conclusions – EPM 15359

  1. [58]
    It is clear that s 30(2) of the NTA deals with a different situation to that to which s 30(4) applies. A change to the identity of a Native Title Party is quite different from when a Native Title Party ceases to be. The change to the identity of a Native Title Party sees the continuation of the claim generally based on the same underlying facts and circumstances as the claim as originally made, not the cessation of a claim.
  1. [59]
    A Native Title Party’s status as Registered Native Title Claimant will continue until the claim is discontinued or is determined by the Federal Court.
  1. [60]
    If the claim is successful, the claimant will be succeeded by the Registered Native Title Body Corporate (RNTBC).  If the claim is unsuccessful the claimant ceases to be a Registered Native Title Claimant.  If a claim is withdrawn, dismissed or otherwise finalised the entry in the Register of Native Title Claims concerning the claim is removed.[37]
  1. [61]
    The choice of language in the bracketed definitional text [registered claims at 4 months after the notification date] is deliberate and not open to the temporal interpretation advanced by Pacgold.
  1. [62]
    The respondent was not the Registered Native Title Claimant at 4 months after the notification day.
  1. [63]
    While a RNTBC can succeed a registered claimant, or a named applicant on a claim can be replaced,[38] there is no provision for the Native Title Party to a claim not registered at that time to enjoy the rights of a registered claimant at 4 months.  The behaviour or assumptions of Pacgold and the respondent in this case do not require a different conclusion. 
  1. [64]
    The respondent says that the then applicant for the Olkola Claim remains the Native Title Party for EPM15359; and, as there is no evidence the 29 December 2021 EAN was served on the claimant for the Olkola claim, the Land Court’s jurisdiction has not been properly invoked.
  1. [65]
    While I accept that the respondent is not the Native Title Party for EPM 15359 and the jurisdiction of the Land Court has not been invoked, I am not certain that the claimant for the former Olkola claim is the Native Title Party for EPM15359. However, that is not a question I am required to resolve.

Merits of the Recommendations Dispute

  1. [66]
    As noted earlier, a dispute arose in relation to two of the recommendations made in an Inspection Report issued by the respondent.
  1. [67]
    Pacgold describes the question for the Court as follows:

“1.  Does Recommendation 1 require the development of a CHMP before any exploration activities are conducted, and if so, is such a recommendation reasonable; and

2.  Is Recommendation 12 reasonable?”[39]

Recommendation 1

  1. [68]
    Recommendation 1 is as follows:

“Recommendation 1 – Development of a CHMP

The project area has intrinsic cultural heritage and environmental complexities. The project area is undisturbed, and there is a high potential for the presence of Aboriginal cultural heritage. The development of a Cultural Heritage Management Agreement is recommended.”[40]

  1. [69]
    In submissions, Pacgold says that the respondent has identified that the reference to a “CHMP” is a typographical error, and that the recommendation should reference a “CHMA”.[41]
  1. [70]
    Pacgold suggests that the respondent’s case is that Recommendation 1 should be interpreted as if it contained the words “and such a CHMA is to be agreed and executed prior to the commencement of Exploration Activities”.[42]  They say that the CHMA negotiation process is ongoing between the parties on the understanding that any CHMA is to cover the project more broadly and is not a prerequisite to the exploration activities.[43]
  1. [71]
    Pacgold submits that Recommendation 1 does not form part of the Recommendations Dispute, as they say the way it was framed was not temporal.[44] However, if the Court decides that it can decide the respondent’s dispute regarding Recommendation 1 and forms the view that it should be interpreted as the respondent contends, such a recommendation is unreasonable.[45]

Does Recommendation 1 form part of the Recommendations Dispute?

  1. [72]
    Pacgold says that the express wording and structure of the NTPCs makes clear that there is no role for the respondent to set the scope for a Recommendations Dispute. They point to the wording of clause 6.5(c) which provides that a Recommendations Dispute arises where “the Explorer does not intend to comply with all recommendations contained in the Inspection Report on the basis of reasonableness”; clause 6.5(d) which provides for the explorer to define the scope of the Recommendations Dispute by providing a Recommendations Objection Notice that sets out the issues in dispute; and clause 6.6 whereby the explorer must refer the Recommendations Dispute to the Land Court for a decision if the dispute remains unresolved.
  1. [73]
    The respondent maintains that it is a reasonable construction of Recommendation 1 that the CHMA would be executed before the commencement of Pacgold’s notified Exploration Activities.[46] They say that on its proper construction Recommendation 1 concerned a CHMA for the Program of Works in Pacgold’s 29 December 2021 EAN.  If the respondent’s construction is accepted, they say it is clear that Pacgold does not intend to comply such that Recommendation 1 forms part of the Recommendations Dispute within clause 6.5(c) of the NTPCs.
  1. [74]
    Pacgold submits that the Court should find that Recommendation 1 does not form part of the Recommendations Dispute.

If Recommendation 1 does form part of the Recommendations Dispute - is Recommendation 1 reasonable?

  1. [75]
    The respondent submits that Recommendation 1 is neither arbitrary, nor lacking in intelligible justification.
  1. [76]
    Pacgold says that this is not the test. They say the test is whether Recommendation 1 is reasonable in the circumstances. The standard of reasonableness that should apply in determining a Recommendations Dispute is the ordinary meaning,[47] guided by context, including the relevant factual matrix and the applicable statutory regime.[48] In that regard Pacgold says that the interpretation of Recommendation 1 advanced by the respondent would collaterally impose obligations on Pacgold that run contrary to the scope and intent of s 237 of the NTA.
  1. [77]
    In response to an assertion that a recommendation that an Explorer enter a CHMA would render redundant the use of the expedited procedure under the NTA the respondent says that nothing in the NTPCs preclude the imposition of onerous or expensive obligations provided such obligations arise from a recommendation in an Inspection Report that is legally reasonable.[49]
  1. [78]
    Pacgold says the administrative law test for legal unreasonableness generally involves some sort of statutory or administrative discretion. The dispute here to be resolved is whether something is reasonable.[50] They say the test is whether or not the recommendations are reasonable, taking into account all of the factual and legislative circumstances.[51] It is not a review of the decision of the Native Title Party: “The parties are not arguing whether or not the recommendations made by the Native Title Party to do these things is reasonable”.[52]
  1. [79]
    As to criteria, Pacgold says:

“things like whether or not they provide too onerous a burden on a particular party is something that can be taken into account. Whether or not they’re necessary. If something is unnecessary, that would be synonymous, in my submissions with unreasonableness. These are the sort of things that your Honour would be determining, not questioning the mind or reasoning imposed by the Native Title Party when they made these recommendations.”[53]

  1. [80]
    Pacgold also points to the Aboriginal Cultural Heritage Act 2003, Div 2, Pt 7[54] (ACHA) which governs when it is mandatory for a person to develop a CHMP to say that in the current circumstances it is not mandatory to develop a CHMP. Pacgold also notes that compliance with a CHMP, a CHMA or compliance with the NTPCs are alternative means of a person meeting their cultural heritage duty of care.[55] They say this implies that a person undertaking activities is not required to comply with both a CHMP/CHMA and the NTPCs.
  1. [81]
    Pacgold says they are not recommendations that are directed towards how the works are to be done in order to minimise impacts on native title in a way contemplated by clause 6.1. Rather they are a precondition or barriers to be achieved not just before the program of works starts, but the whole project itself.[56] 
  1. [82]
    Pacgold submits that a recommendation requiring a CHMP/CHMA to be negotiated imposes an unreasonable and unnecessary burden and unnecessary delay. Pacgold says that a recommendation that Pacgold must enter an agreement would enable the respondent to say “no”.[57] Further, it increases uncertainty as to the commencement of exploration activities, the terms on which the activities can be undertaken, or whether they can be undertaken.

Is Recommendation 12 reasonable?

  1. [83]
    Recommendation 12 says:

“it is recommended that Pacgold seek and obtain an approval granted under Environmental Protection and Biodiversity Conservation Act 1999 (Cth) before proceeding with the Project Works.” 

  1. [84]
    Pacgold accepts that the Alwal (Golden-shouldered Parrot) is of cultural importance to the respondent and say the NTPCs enable the respondent to make specific recommendations about measures they would like Pacgold to implement for its protection which Pacgold has done.
  1. [85]
    In submissions the respondent says it clarified in correspondence dated 17 August 2022 that they intended Recommendation 12 to operate as a requirement that Pacgold refer the activities proposed in the 29 December 2021 EAN to the Commonwealth Minister under s 68 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).[58] Pacgold suggests that this is “a late attempt” by the respondent to change Recommendation 12, but say it does not change their position.[59]
  1. [86]
    Pacgold says that the recommendation is not that the works be done in a certain way, rather it imposes a prerequisite on the works.[60] They say they have accepted recommendations regarding the avoidance of nesting places of the Alwal including ant hills and termite mounds and a buffer zone.[61]
  1. [87]
    Pacgold says it is aware of its obligations under the EPBC Act and that they should be afforded the presumption of regularity,[62] that is, it may be presumed that the explorer will act lawfully in exercising its rights under its exploration permits, which may be rebutted by evidence.
  1. [88]
    The respondent says the recommendation is neither arbitrary, nor lacking in intelligible justification. They say that clause 6.1(b) imposes no express limit on the recommendations that may be made in an Inspection Report but accept that the recommendations must be rationally related to managing the impact, or possible impact, of a Program of Works set out in the Explorer’s EAN – and they submit it is so rationally related.[63]
  1. [89]
    Pacgold says Recommendation 12 is not appropriate subject matter for a recommendation to be made by a Native Title Party in an Inspection Report, and a Native Title Party has no lawful authority to mandate such a requirement.
  1. [90]
    Pacgold says that it is subject to the requirements of the EPBC Act regardless of the NTPCs and any recommendations made by the respondent, and issues of compliance with the requirements of the EPBC Act is a matter for the relevant Commonwealth Minister and responsible department, not to be determined by the respondent nor the Land Court.[64]
  1. [91]
    Further, they say whether or not approval in respect of exploration activities notified in an EAN is required under the EPBC Act is a matter of law to be determined under that Act.[65]  Accordingly, a requirement for Pacgold to seek and obtain approval under the EPBC Act is not a matter that can be lawfully mandated by means of a recommendation made in an Inspection report issued under the NTPCs.

Conclusions

Does Recommendation 1 require the development of a CHMA before any exploration activities are conducted, and if so, is such a recommendation reasonable?

  1. [92]
    Clause 6 of the NTPCs concerns the Inspection Report. It provides that the Field Inspection Notice given by the explorer must inform the Notified Native Title Parties that they must provide a written report to the Explorer containing recommendations, amongst other things, for conducting the Program of Works in a way that minimises impact on the Inspection Zone and avoids any proposed Exclusion Zone.
  1. [93]
    Clause 6.4(d) says that the Explorer can prepare a modified Program of Works to comply with the recommendations in the Inspection Report,[66] but if the Explorer does not intend to comply with all the recommendations on the basis of reasonableness of the recommendations, and the dispute is unresolved, the Explorer must refer the Recommendations Dispute to the Land Court to decide the Recommendations Dispute.[67]
  1. [94]
    The recasting of the recommendation from: “[t]he development of a Cultural Heritage Management Agreement is recommended” to require a CHMA to be agreed prior to the commencement of Exploration Activities is a significantly different proposition. Putting aside the question of reasonableness for the moment, it is nevertheless a recommendation that might have been made in the Inspection Report.
  1. [95]
    The substance of the recommendation is prefaced by the statement that the project area has intrinsic cultural heritage and environmental “complexities” and there is a “high potential” for the presence of Aboriginal cultural heritage. The recommendation as it appears in the Inspection Report appears to me to be consistent with that language, that is, that the development of a CHMA is recommended. It does not appear to convey an urgency or time constraint. It appears to be a recommendation that is not unreasonable in the context of the complexities and potential for the presence of Aboriginal cultural heritage, and proportionate.
  1. [96]
    Pacgold has said that they accept the recommendation as it appeared in the Inspection Report and have engaged with the respondent to develop a CHMA that would cover the whole project. That work is continuing.
  1. [97]
    I accept that Recommendation 1 as it appears in the Inspection Report has been accepted and as a result there is not a Recommendations Dispute that requires a decision of the Land Court.
  1. [98]
    If, however, that conclusion is incorrect, and the recommendation is to be read as modified, for the following reasons I do not consider the recommendation to be reasonable.
  1. [99]
    As noted at [33] of these reasons, it is agreed that the NTPCs do not offer the Court a set of discrete criteria to apply in deciding a Recommendations Dispute. Equally, the NTPCs do not provide great guidance about the form and content of recommendations in an Inspection Report.
  1. [100]
    The NTPCs are imposed on exploration permits to render unlikely impacts of the kind identified in s 237 of the NTA. Conditioned in that way, exploration permits can be granted without the normal negotiation process being followed. The normal negotiation process would require the explorer and native title party to negotiate in good faith with a view to obtaining the agreement to the grant of the exploration permit, or the grant of the exploration permit subject to the conditions to be complied with by any of the parties. If agreement cannot be reached and six months has elapsed an application can be made to the National Native Title Tribunal for an arbitral determination.
  1. [101]
    Pacgold suggests that to make a recommendation which would require the parties in effect to engage in a negotiation akin to the normal negotiation process is inherently unreasonable. The respondent says that: there is no express limit on recommendations that may be made; the NTPCs do not preclude the imposition of onerous or expensive obligations provided they arise from a recommendation that is legally reasonable; and that a recommendation in an Inspection Report must be rationally related to managing the impact of a Program of Works.
  1. [102]
    In the absence of specified criteria, the test is whether or not the recommendation is reasonable taking into account the factual and legislative circumstances.
  1. [103]
    Pacgold has articulated things with which I generally agree might be taken into account including the burden a recommendation may place on a party and the necessity of the undertaking the thing recommended. While factors such as the burden placed on Pacgold by the recommendation relate principally to proportionality (which is perhaps more relevant to a merits review), they alone do not determine the question. Something might be disproportionate but not unreasonable. Equally a recommendation might be proportionate but its adoption unreasonable. Reasonableness must also be rational.
  1. [104]
    The legislative backdrop includes the circumstances which would necessitate the production of a CHMP or CHMA under the ACHA, and the nature of the expedited procedure process as opposed to the full right to negotiate process.
  1. [105]
    Taking those matters into consideration, I am of the view that a recommendation that would require agreement of the kind recommended, particularly without clarity around the process to reach agreement and the process, if any, to resolve any obstacle to agreement, in the circumstances of a process designed to avoid a full right to negotiate, is unreasonable.

Is Recommendation 12 reasonable?

  1. [106]
    The situation with Recommendation 12 is somewhat the reverse of Recommendation 1, that is, the recommendation in the Inspection Report which would require Pacgold to seek and obtain approval under the EPBC Act before proceeding with the Project Works has been re-cast by the respondent as a requirement to refer the activities proposed in the 2021 EAN to the Commonwealth Minister under s 68 of the EPBC Act.
  1. [107]
    The respondent does not seemingly oppose the challenge to the reasonableness of the recommendation as it appears in the Inspection Report. Pacgold maintains their challenge to the reasonableness of the recommendation in either form.
  1. [108]
    Pacgold in submissions explain in some detail what is required to make the application described in the modified recommendation. It is quite detailed, complex, and expected to take some time. Pacgold, like the holders of all resource authorities, are subject to a range of legislative obligations and are afforded the presumption of regularity. There is no evidence to suggest that the presumption is or ought to be displaced. That obligation extends to any requirements of the EPBC Act. Pacgold has accepted a number of recommendations in relation to the Alwal, and accept its cultural importance to the respondent. In either form I consider Recommendation 12 unreasonable.

Decision

  1. The respondent is not the Native Title Party for EPM 15359. The jurisdiction of the Land Court has not been invoked.
  1. Recommendation 1 does not form part of a Recommendations Dispute, as contemplated by the NTPCs.
  1. Recommendation 12 is unreasonable.

Footnotes

[1]  Ex 4, pages 162-192.

[2]  Ibid page 174; Mineral Resources Act 1989 s 141(1)(j), s 141AA and s 363(2)(ea).

[3]  Pacgold sys the recommendation as framed was not temporal and on that basis was agreed: see T1-11 lines 43 to 45.

[4]  The ‘other recommendation’ being that Pacgold refers to the activities proposed in Pacgold’s 29 December 2021 EAN to the Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 68.

[5]  Hearing review 5 August 2022, T1-20.

[6]  Hearing review 5 August 2022, T1-16 line 10 to T1-17 line 5.

[7]  The normal negotiation process requires the parties to negotiate in good faith with the purpose of reaching agreement to the grant. If agreement cannot be reached and six months has passed an application can be made to the NNTT for a determination.  If the parties have negotiated in good faith the NNTT must determine either that the grant be made, that the grant be made subject to conditions, or that the grant not be made.

[8]  If a Native Title Party objects to the making of the ‘expedited procedure’ statement when the tenement application is notified, the objection is heard and determined by the NNTT.

[9]  Ex 10, page 679, para 28(d): “other than identifying the Explorer’s lack of intention “to comply with all of the recommendations” in an Inspection Report, and that the intention must be “on the basis of the reasonableness of the recommendations” (both factors directed solely to the Explorer), cl.6.5(c) (and the NTPCs generally) do not define the nature and scope of any dispute between the Explorer and the Native Title Party”.

[10]  T1-5 lines 39 to 42.

[11]  Ex 11, page 697.

[12]  Ex 10, para 36.

[13]  Ex 11, para 14.

[14]  T1-6 lines 46 to 47; T1-7 lines 1to 3.

[15]  Ex 10, para 38.

[16]  Ex 11, para 16.

[17] Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 16.

[18]  (2018) 56 VR 51 [70]-[71].

[19]  Ex 11, para 18.

[20]  Ex 6, para 28.

[21]  T1-6 lines 24 to 30.

[22]  T1-25, lines 35 to 37.

[23]  T1-24, lines 36 to 37.

[24]  T1-7, lines 5 to 10.

[25]  [1996] 2 Qd R 493.

[26]  [1996] 1 Qd R 347.

[27]  T1-31, lines 42 to 44; T1-32, lines 38 to 47.

[28]  Ex 11, para 20 to 21.

[29]  Ex 6, para 16.

[30]  T1-50, lines 28 to 35.

[31]  See [7] of these reasons.

[32]  4 months after the 23 August 2006 notification date.

[33]  T1-10, lines 14 to 17.

[34]  T1-10, lines 18 to 19.

[35]  Ex 11, para 23 to 24.

[36]  Ex 4, page 188.

[37] Native Title Act 1993 (Cth) s 190(4)(d).

[38]  Ibid s 66B.

[39]  Ex 6, para 42.

[40]  Ex 3, page 102.

[41]  Ibid para 46; Ex 3, annexure 6.

[42]  Ex 6, para 51.

[43]  Ibid, para 53; see also Ex 5, annexures 28 and 30.

[44]  T1-11, lines 43-44.

[45]  Ex 6, para 54 to 55.

[46]  Ex 10, para 59.

[47]  T1-12, line 19.

[48]  Ex 11, para 27.

[49]  Ex 10, para 66.

[50]  T1-12, lines 46 to 47.

[51]  T1-13, lines 1to 3.

[52]  T1-13, lines 4 to 7.

[53]  T1-13, lines 26 to 31.

[54]  Specifically, s 23(3)(a)(ii), (iii) and (v).

[55]  T1-13, lines 42 to 46.

[56]  T1-14 lines 20-24.

[57]  T1-15 line 33-35.

[58]  Ex 10, page 68.

[59]  Ex 6, para 72.

[60]  T1-18, lines 15 to 18.

[61]  Ex 5, annexure 35, para 7.

[62]  T1-20, lines 27 to 29.

[63]  See Ex 8, para 14; Ex 9, para 57.

[64]  Ex 6, para 69a and 69(c).

[65]  Ibid, para 69(b).

[66]  Native Title Protection Conditions cl 6.5(c).

[67]  Ibid cl 6.6.

Close

Editorial Notes

  • Published Case Name:

    Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim

  • Shortened Case Name:

    Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim

  • MNC:

    [2022] QLC 15

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    21 Oct 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10
1 citation
Jump To
Cite 1 - [2018] NNTTA 10
Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy [2019] QLC 10
1 citation
Jump To
Cite 1 - [2019] QLC 10
Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 16
1 citation
Jump To
Cite 1 - [2019] QLC 16
McBain v Clifton Shire Council[1996] 2 Qd R 493; [1995] QCA 513
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 493
Cite 2 - [1996] 2 Qd R 493
Medical Board of Australia v Kemp (2018) 56 VR 51
2 citations
Jump To
Cite 1 - (2018) 56 VR 51
Cite 2 - (2018) 56 VR 51
Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347
1 citation
Jump To
Cite 1 - [1996] 1 Qd R 347
Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 397
1 citation
Jump To
Cite 1 - [1996] 1 Qd R 397

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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